Dr Ramesh Gupta v Australian Capital Territory

• Jurisdiction: Australian Capital Territory
• Judge: Refshauge J
• Judgment Date: 30 August 2011
• Court: Supreme Court of ACT
• Docket Number: No. SC 523 of 2010
• Date: 30 August 2011

[2011] ACTSC 154

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Judge:

Refshauge J

No. SC 523 of 2010

Dr Ramesh Gupta

Plaintiff

and

Australian Capital Territory

Defendant

Counsel for the plaintiff: No appearance (29 August 2011)

Ms Z McCormick (30 August 2011)

Counsel for the defendant: Mr G McCarthy

Cooper v Williams[1963] 2 QB 567

Lambert v Mainland Market Deliveries Ltd[1977] 2 All ER 826

ROFA Sport Management AG & Anor v DHL International (UK) Ltd & Anor[1989] 2 All ER 743

Fowler v Renmark & Paringa District Hospital Inc (1988) 51 SASR 506

Re Criminal Property Confiscation Act 2000 (WA); Ex parte State Director of Public Prosecutions (WA) (2002) 130 A Crim R 581

Whistler v Hancock (1878) 3 QBD 83

FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268

Farley and Lewers Ltd v Attorney-General [1963] SR (NSW) 814

Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464

Woden Valley Glass v Psaila(1993) 44 FCR 140

Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2)[2009] NSWCA 387

Gold Reefs of Western Australia Ltd v Dawson[1897] 1 Ch 115

Apple Computer Inc v Popiolek [1984] VR 156

Email Finance Ltd v Registrar of Titles & Anor (SCV, Tadgell J, No 5636/81, 1 September 1982, unreported)

Newcomen v Coulson (1878) 7 Ch D 764

National Trustees & Co v Crowley (1902) 8 ALR 215a

Fox v Commissioner for Superannuation (No 2)[1999] FCA 372

Herman, Ex parte; Mathieson (No 2), Re (1960) 78 WN (NSW) 6

Mercer Alloys Corporation & Anor v Rolls Royce Ltd[1972] 1 All ER 211

Philip Morris Ltd v Bridge Shipping Pty Ltd & Ors [1994] 2 VR 1

Court Procedures Rules 2006 (ACT), rr 220, 230, 241, 1160, 1611, 6906

Health Act 1993 (ACT), s 63

Court Procedures Act 2004 (ACT), s 33

Diamond, A. S., The Annual Practice 1963 (Sweet and Maxwell: London, 80 ^th Ed, 1962)

PROCEDURE — Supreme Court procedure — discontinuance — effect on proceedings — whether amendment possible after discontinuance — amendment of reasons for decision.

PROCEDURE — Supreme Court procedure — change of parties — whether possible to substitute parties after discontinuance — need for withdrawal of notice of discontinuance.

ORDER

THE COURT ORDERS THAT:

• (1) the plaintiff have leave to withdraw the Notice of Discontinuance filed on 14 March 2011, such notice to be deemed to have been withdrawn on 30 August 2011;

• (2) the first defendant and the second defendants be removed as parties under r 230 of the Court Procedures Rules 2006 (ACT);

• (3) the Australian Capital Territory be included as the defendant under r 220 of the Court Procedures Rules 2006 (ACT);

• (4) the title of the proceedings be amended accordingly;

• (5) the plaintiff file an Amended Originating Application within seven days and serve a sealed copy within seven days thereafter on the Australian Capital Territory;

• (6) the Australian Capital Territory file and serve a Notice of Intention to Respond within seven days of service on it of the Amended Originating Application;

• (7) the plaintiff file and serve a Notice of Discontinuance in these proceedings within seven days of service on it of the Notice of Intention to Respond on the Australian Capital Territory; and

• (8) upon the filing of the Notice of Intention to Respond, the court issue a Corrigendum in respect of the decisions in this matter numbered [2011] ACTSC 39 and [2011] ACTSC 43 as follows.

  • (a) In [2011] ACTSC 39, the following amendments be made:

    • (i) the title of the proceedings be altered to reflect the change of parties;

    • (ii) in order 3(b) the word ‘defendant's’ be substituted for the word ‘defendants'’;

    • (iii) in order 3(d) the word ‘defendant’ be substituted for the word ‘defendants'’;

    • (iv) in paragraphs 4, 6, 57, 121, 124(3)(b) and 124(3)(d) the words ‘defendants'’ be substituted by ‘defendant's’;

    • (v) in paragraphs 4, 6, 56, 70, 82, 105, 106, 110, 111, 112 and 120 the word ‘defendant’ be substituted for the word ‘defendants’;

    • (vi) in paragraphs 4 and 5 the words ‘first defendant,’ be omitted.

    • (vii) in paragraphs 41 and 47 the words ‘Dr O'Leary’ be substituted for the words ‘the first defendant, Dr O'Leary’;

    • (viii) paragraph 54 be varied by omitting ‘As to the parties to the Originating Application, Dr O'Leary was made a party as acting chair of the committee and as the person who appears to have made, or at least communicated, the decision to Dr Gupta, but who did not attend the relevant meeting, and the second defendants were the members of the committee who deliberated on Dr Gupta's application’ and the following substituted, ‘Dr O'Leary was acting chair of the committee and the person who appears to have made, or at least communicated, the decision to Dr Gupta, but who did not attend the relevant meeting of the members of the committee who deliberated on Dr Gupta's application’;

    • (ix) paragraphs 113, 114, 116 and 118 be varied by substituting for the words ‘defendants’ the initials ‘MDAAC’; and

    • (x) paragraphs 116 and 118 be varied by substituting the words ‘the other members of the MDAAC’ for ‘the second defendants’.

  • (b) In [2011] ACTSC 43, the following amendments be made:

    • (i) the title of the proceedings be altered to reflect the change of parties;

    • (ii) in paragraphs 10 and 11 the word ‘defendant’ be substituted for the word ‘defendants’; and

    • (iii) in paragraph 10 the word ‘first’ be deleted.

EX TEMPORE JUDGMENT

1 On 11 March 2011, I gave the plaintiff leave to discontinue these proceedings and ordered that the plaintiff pay some of the defendants' costs and that the defendants pay some of the plaintiff's costs.

2 On 15 March 2011, the plaintiff filed a Notice of Discontinuance in accordance with my order thus bringing these proceedings to an end.

3 No formal order, however, was sealed incorporating the terms of the order I had made. The parties had then sought to file a general form of consent order under r 1611 of the Court Procedures Rules 2006 (ACT) (the Court Procedures Rules), in which they sought to substitute the Australian Capital Territory for the named first and second defendants and sought that the decision and order I had made be altered to reflect that order.

4 The consent was rejected, in my view, properly, because the filing of the discontinuance had brought the proceedings to an end. See Cooper v Williams[1963] 2 QB 567 (at 580). In that case, Lord Denning MR cited, with approval, from The Annual Practice 1963 (Diamond, A, S., Sweet and Maxwell: London, 80 ^th Ed, 1962), that, unlike a stay, a discontinuance cannot be ‘removed’. This was followed in Lambert v Mainland Market Deliveries Ltd[1977] 2 All ER 826 (at 832–3). It certainly appears that a discontinuance has, for these purposes, the same effect as a dismissal or judgment: ROFA Sport Management AG & Anor v DHL International (UK) Ltd & Anor[1989] 2 All ER 743 (at 749).

5 In Australia, Cox J stated in Fowler v Renmark & Paringa District Hospital Inc (1988) 51 SASR 506 (at 507) that ‘[t]here is no doubt that the effect of a discontinuance is to bring an action to an end’. See also Re Criminal Property Confiscation Act 2000 (WA); Ex parte State Director of Public Prosecutions (WA) (2002) 130 A Crim R 581 (at 585).

6 The consequences of this were that, in a line of cases beginning with Whistler v Hancock (1878) 3 QBD 83, most dealing with self-executing orders, it was held that once an action had been brought to an end the court had no inherent power to revive it. This would have provided an insuperable obstacle to the application.

7 There are, however, two answers to this.

8 In the first place, the principle in Whistler v Hancock has now been severely qualified, if not entirely abrogated, by the High Court in FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268.

9 In the second place, at least so far as the addition and removal of parties is concerned, there has been legislative intervention in the form of rr 220 and 230 of the Court Procedures Rules, in both cases permitting orders under the rules to be made ‘at any stage in the proceedings’.

10 Clearly, the proceedings must be on foot in a relevant sense for that to be permitted. This would include the hearing of the proceedings in an appellate court. There is considerable authority in support of this. See Farley and Lewers Ltd v Attorney-General [1963] SR (NSW) 814 (at 821–4); Mulcahy v Curramore Pty Ltd [1974] 2 NSWLR 464 (at 481); Woden Valley Glass v Psaila(1993) 44 FCR 140 (at 150).

11 It would also include the situation where an oral order had been pronounced but the sealed order had not been issued. Thus, as the NSW Court of Appeal held in Perpetual Trustees Australia Ltd v Heperu Pty Ltd (No 2)[2009] NSWCA 387 (at [44]), ‘final orders regularly made and formally entered can only be challenged on appeal or in proceedings to set aside the judgment for fraud’. Of course, this does not exclude what is commonly known as the slip rule, which, in this jurisdiction, is enacted in r 6906 of the Court Procedures Rules.

12 Here, it seems to me that the filing of the Notice of Discontinuance brought the proceedings to an end and, in the absence of an appeal prevented rr 220 or 230 from operating.

13 It is clear, however, that the termination of the proceedings by discontinuance does not completely prevent any further proceedings.

14 Thus, the courts have held that notwithstanding a discontinuance, the proceedings survived for the purpose of securing payment of costs and in those circumstances the court retains power to substitute parties where a party's name has been used without authority: Gold Reefs of Western Australia Ltd v Dawson[1897] 1 Ch 115.

15 Naturally, a perpetual injunction survives a discontinuance: Apple Computer Inc v Popiolek [1984] VR...