CATCHWORDS Federal Court of Australia - Jurisdiction - Transitional Provisions ~ Transfer of proceedings in Australian Industrial Court - Whether hearing cf proceedings hac commenced - Meaning of "proceedings" - Federal Court of Australia (Consequential Provisions) Act 1976, s.4. Jurisdiction to set aside order ~ Finality of orders ~ Whether different considerations apply to interlocutory orders - Whether exception if order made on incorrect facts -— Whether order should be varied. L. Grollo & Co. Pty. Limited v. Theo Hsmmond & Ors. ice) VG. No. 38 of 1977 Before Bowen, ©.J., Nimmo and Keely JJ. Melbourne 14th June, 1977 IN THE FEDERAL COURT OF AUSTRALIA }VICTORIA DISTRICT REGISTRY } VG No. 38 of 1977 GENERAL DIVISION ) CORAM: BOWEN C.J., NIMMO and KEELY JJ 44th June, 977 L. GROLLO & CO. PTY. LTD. v. THEO HAMMOND and JUDGMENT. This is an appeal against a decision of Smithers J. given on 23rd March 1977. On 23rd July 1976 proceedings were commenced by L. Grollo & Co. Pty. Ltd., the plaintiff, against Theo Hammond and Igor Osidacz and Theo Hammond & Partners (A Firm) and The Royal Australian Institute of Architects, the defendants, by writ issued out of the Australian Industrial Court with a statement of claim endorsed thereon. By its statement of claim. the plaintiff stated that the action was brought under the Trade Practices Act 1974. It set forth descriptions of the parties and various allegations relating to the engagement, by the plainviff, of the first, second and thira defendants as architects to advise it in relation to a tender and later a contract for the construction of certain houses in Darwin to be undertaken by the plaintiff and a company named Wincope (Australia) Pty. Ltd. It further set forth the purported entry into an agreement in writing dated 25th March 1976 between these parties. It alleged that this agreement was in restraint of trade and was contrary to section 45 of the Trade Practices Act 1974. It included allegations regarding certain architects' fees which had been rendered. Some of these fees had been paid - a figure of $39,936-20 was mentioned. Some fees, which had been rendered, were outstanding and were in dispute - a figure of $202,034-61 was mentioned The Plaintiff claimed, inter alia, a declaration that the agreement was void; a declaration that the plaintiff was not indebted in the sum of $202,034-61; an order that the thirdnamed defendant repay to the plaintiff the sum of $39,936-20; and, an order varying the said agreement. It contained also a claim for damages and other relief. Summonses were issued by the defendants seeking to have the statement of claim struck out on the ground that no cause of action was disclosed and that the statement of claim was embarrassing, and on other grounds. The summonses came on to be heard before Smithers J. who made orders that certain paragraphs of the statement of claim be struck out. Other paragraphs were left in. It became apparent to Smithers J. in the course of argument, that the statement of claim did disclose matters upon which, if properly pleaded, arguable and identifiable claims might well be raised against the four defendants. These claims appeared to depend on the suggestion that the defendants were parties to a contract, arrangement or understanding constituted by the terms of the memorandum and articles of the fourth defendant and that these were in restraint of trade ard were unenforceable or void, notwithstanding a purported application to the Trade Practices Commission for an authorisation and the purported issue of an interim authorisation. In the course of the argument concerning the statement of claim, the fourth defendant made an oral request that certain questions of law be dealt with before the trial of the facts and requested the Judge to act under High Court Rules Order 35 rule 2. The first, second and third defendants joined in this request. The plaintiff opposed the taking of this course. In the result, the Judge made an order that preliminary questions of law be dealt with separately. The plaintiff did not agree with the form of questions proposed by the defendants and on 25th October 1976 issued a summons setting forth the questions which it claimed should be dealt with, on the basis that the course ordered by the Judge had to be followed. The questions thus raised were considered by the Judge when the ' matter came on for further hearing before him on 1st November 1976. Broadly speaking, his Honour adopted the questions 1n the ; form proposed by the plaintiff. Argument took place and his Honour proceeded to give his answers to the various questions posed. His reasons for judgment and the order incorporating these answers are dated 1st November 1976. The answers which his Honour gave were considered by the plaintiff to be unfavourable to its case. It decided tc appeal. No appeal lay from the trial Judge to a full bench cf the Australian Industrial Court. Accordingly, the plaintiff, by Notice of Motion dated 22nd November 1976, applied to the High ! Court for an order that it have leave, or alternatively special leave, to appeal from the order of the ist November 1976. This motion came on for hearing before the Full Court of the High Court of Australia om 28th February 1977, and the application was refused. A transcript of the argument is before us. Both Barwick C.J. and Jacobs J. indicated during the course of argument that the matter was interlocutory and that it was desirable that the case should proceed to a hearing and determination on the facts, before the questions of law, which had been decided upon assumed facts, were canvassed on any appeal. It was pointed out that a decision on appeal on the questions raised and decided by Smithers J. would not determine the proceedings It should be mentioned that on 7th December 1976 an amended statement of claim was filed by the plaintiff. On 24th December 1976 the first, second and third defendants filed their statement of defence, admitting some allegations in the amended statement of claim and denying others. On 8th March 1977 the fourth defendant filed its statement of defence, admitting some allegations in the amended statement of claim and denying others. On 16th March 1977 the plaintiff filed its reply to the statement of defence of the first, second and third defendants and on the same day filed its reply to the statement of defence of the fourth defendant. On 16th March 1977, the same day as its replies were filed, the plaintiff issued a summons against the defendants seeking various orders and directions. Those which are material to this appeal were that the order and judgment of the 1st November 1976 be negated or, alternatively, recalled; that the issue of the validity of the application and authorisation referred to in the order and judgment be tried as a separate issue; that @ the trial of such issue all questions of fact be tried with a jury; that, alternatively, the order and judgment be varied and that certain additional questions be raised for determination. This summons which was issued in the Federal Court of Australia General Division came on before Smithers J. sitting as a Judge of this Court on 23rd March 1977. In his reasons for judgment, his Honour dealt first with a preliminary question whether or not the Federal Court of Australia had jurisdiction in the matter. He referred to section 4(2) of the Federal Court of Australia (Consequential Provisions) Act, 1976. The date of commencement of that Act was 1st February 1977 and the jurisdiction of the Court commenced on that date. The short question was whether the hearing of the proceedings in the Australian Industrial Court had commenced. If it had, then the statute required that it should continue in the Australian Industrial Court. If it had not, then the Federal Court of Australia could deal with it and was required to treat the matter as if all things which had been done in and in relation to the proceedings in the Australian Industrial Court had been done in and in relation to the proceedings in this Court. His Honour on this preliminary question, formed the opinion that the Federal Court of Australia had jurisdiction to hear the matter. It should be mentioned that the preliminary question w3s only briefly argued before his Honour, but the representatives of all parties and the representative of the Trade Practices Commission, which was allowed to intervene, all argued in favour of jurisdiction in this Court. Dealing with the matters raised by the summons of 16th March 1977, his Honour, in his reasons for judgment, expressed the view in relation to the application for an order that he recall or negate his order of 1st November 1976, that if he had power to make such an order which he did not decide, he would not exercise that power because he saw no reason to do so. Accordingly, he refused to make the order sought. As to the request for the trial of certain matters as a separate issue, his Honour stated that he saw no reason for any order at that stage for a trial of those particular issues as separate from the whole of the case. He therefore rejected the application for that order. As to the request that all questions of fact relating to the issue referred to in the summons be tried by a jury, his Honour, after referring to section 40 of the Federal Court of Australia Act 1976, which empowers the Court or a Judge in any suit in which the ends of justice appear to render it expedient to do so to direct a trial with a jury of a suit or an issue of fact, stated that it had not been shown to his satisfaction that the ends of justice rendered it expedient to direct trial with a jury. He therefore refused to make that order. Section 24 of the Federal Court of Australia Act 1976 provides, subject to certain matters not material to this appeal, that the Court has jurisdiction to hear and determine appeals from judgments of the Court constituted by a single Judge. No distinction is drawn between interlocutory and final judgments (see s.4 definition of "judgment"). The plaintiff/appellant, by its notice of appeal, appealed from the judgment and orders of 23rd March 1977 and sought an order from the Full Court that the judgment and order given and made on 1st November 1976 be negated or recalled or set aside or varied; that the trial of certain issues separately from others be ordered; and that there be trial with a jury in regard to certain issues. On the hearing of the appeal before this Court, it was submitted, on behalf of the plaintiff/appellant, that the order of 1st November 1976 should be recalled or negated or alternatively varied, that an order should be made for the trial of separate issues and that an order should be made for the trial with a jury of certain issues. On the second day of the hearing it was announced on behalf of the plaintiff/appellant that it was no longer proposed to argue before this Court in support of an order for the trial of separate issues or for trial with a jury. The Court therefore is concerned only with the appeal against his Honour'ts refusal to recall, negate or vary his judgment and order of 1st November 1976. At the outset it is necessary to deal with the question whether jurisdiction in the proceedings was transferred to this Court as the learned trial Judge decided, or whether it remained with the Australian Industrial Court. Notwithstanding the expressed wish of the parties that the matter should be dealt with by this Court, this difficulty has to be faced. This is a Court of statutory jurisdiction. Jurisdiction cannot be conferred by consent of parties. The answer to the question depends upon the interpretation to be placed on Section 4 of the Federal Court of Australia (Consequential Provisions) Act, 1976. This is as follows:- "4.(1) The amendments made by this Act do not affect the jurisdiction of the Australian Industrial Court in any proceedings the hearing of which had commenced before the date of commencement of this Act. (2) Where, immediately before the date of commencement of this Act, proceedings in a matter arising under an Act specified in the Schedule were pending in the Australian Industrial Court but the hearing of the proceedings had not commenced - (a) the proceedings are, by force of this Act, transferred to the Federal Court of Australia on the date of commencement of this Act; (b) the Federal Court of Australia may hear and determine the proceedings; (c) all documents filed of record in the Australian Industrial Court in the proceedings shall be transmitted to the Registrar of the Federal Court of Australia; and (d) any moneys lodged with the Australian Industrial Court in relation to the proceedings shall be trans-— ferred to the Federal Court of Australia and dealt with as 1f they had been lodged with that Court; (e) all things done in and in relation to the - proceedings in the Australian Industrial Court shall be deemed to have been done in and in relation to the proceedings in the Federal Court of Australia. (3) The Federal Court of Australia has the same powers (including powers in respect of contempt of court and enforcing of orders) in respect of an order of the Australian Industrial Court made, whether before or after the commencement of this Act, under an Act referred to in the Schedule as 1f it were an order of the Federal Court of Australia." The legislature might, of course, have provided that only completely new proceedings should be heard by this Court. That is, matters where the originating process was issued out of this Court on or after 1st February 1977. Presumably it was considered that this would have left an unnecessarily large number of cases which the Australian Industrial Court would continue to hear. It appears to have been designed to bring about as comprehensive a transfer of jurisdiction as was practicable. The legislature might of course have provided that jurisdiction in all matters pending in the Australian Industrial Court should be transferred to this Court and thus have brought about a complete transfer of jurisdiction. However, this would have raised practical difficulties. It would have involved the transfer of matters which may have been part-heard before the Australian Industrial Court. Plainly it was considered undesirable to have a change of Court during the hearing of a matter. The Australian Industrial Court remains in existence until a day to be fixed by proclamation being a day upon which no person holds office as a Judge of that Court (Conciliation and Arbitration Amendment Act (No. 3), 1976, s.4). The solution adopted in section 4 of the Federal Court of Australia (Consequential Provisions) Act, 1976, which has been quoted, is to leave with the Australian Industrial Court jurisdiction in any proceedings, the hearing of which had commenced before the 1st February 1977, and to transfer jurisdiction to this Court where, immediately before 1st February 1977, proceedings were pending in the Australian Industrial Court but the hearing of the proceedings had not commenced. The difficulty in giving effect to this solution lies in determining the meaning of the words "the hearing of the proceedings had not commenced.". The word "proceedings" may bear a variety of meanings according to the context. (See Strouds Judicial Dictionary 4th Edn. Vol. 4 pp. 2124-2128; Federated Amalgamated Government Railway and Tramway Service Association v. New South Wales Traffic Employees! Association 4 C.L.R. 488; Cheney v. Spooner 41 C.L.R. 532). As to the distinction between "matter" and "proceeding" see Collins v. Charles Marshall 92 C.L.R. 529, affirmed by the Privy Council 96 C.L.R. 1. In section 4(2), the words "proceedings in a matter arising under an Act specified in the Schedule were pending", seem to refer to what is sometimes called an action, suit or cause. The words may be compared with the words "cause pending ie in the Supreme Court of a State" used in section 40A of the Judiciary Act 1903 as it stood before the amendment of 1976. i dal (See Hooper v. Hooper 91 C.L.R. 529). The word "pending" conveys the idea that the proceedings have been commenced, are still on foot, and have not been determined. (cf. James v. Robinson (1963) 37 A.L.J.R. 151). The more difficult question is raised by the ensuing words of section 4(2) "but the hearing of the proceedings had rot commenced". The word "hearing" is also a word of varying meaning depending on the context. (See Strouds Judicial Dictionary 4th Edn. Vol. 2 pp. 1218-9). When used in association with the word "trial" in the phrase "at the trial or hearing", it has been held to mean the final determination of the matter. (Wozniak v. Wozniak (1953) P.179). Where it appeared in the phrase "hearing of any motion or summons", it was held to include an application for a rule nisi. (Morgan v. Alexander L.R. 10 C.P. 184). In the context in which the word "hearing" appears in section 4(1) and (2), more than one meaning might be suggested. It may be argued that it means the main hearing or trial of the action, suit or cause; or that it means the hearing of any part of the proceedings, including the hearing of an interlocutory application; or that it means that each step in the proceedings has to be separately considered as to whether it is pending, whether the hearing of it has commenced end consequently, whether it should be transferred to this Court. Dealing with the last of these possibilities, it appears to us that in both section 4(1) and (2), the reference to "proceedings pending" refers to the action, suit or cause and that where the conditions referred to in section 4(2) exist, the whole action, suit or cause is transferred to this Court. It does not appear to us that piecemeal transfers of jurisdiction to hear different parts of the proceedings is contemplated by these provisions. Furthermore, practical difficulties would arise if this view were adopted and it is unlikely the legislature would have intended to create such a result. As to the first meaning suggested, it might be argued that the section does not say "main" hearing, or we the word "trial" or some such word indicating that the hearing referred to is the hearing which would lead to the final determination of the matter. On the other hand, it might be argued that the terms of section 4(3) tend to support that interpretation. However, section 4(3) is general in its terms. It does not appear to be directed specifically to the enforcement of interlocutory orders made by the Australian Industrial Court in the proceedings before the final hearing of the proceedings. Althougn, if the first interpretation were adopted, it could possibly apply in that way. It should be pointed out that practical difficulties would also arise if the first interpretation were adopted. Assuming the interlocutory proceedings before Smithers J. had been delayed and were still part-heard at 1st February 1977, then on this interpretation, because the main hearing had not commenced, the proceedings, i.e. the whole action, suit or cause, would be transferred by force of the statute. The same result would follow if the hearing of the interlocutory application had been completed but judgment had been reserved and not yet delivered by 1st February 1977. It seems that in these 1 circumstances, either Smithers J., who has a commission as a Judge of this Court, or some other Judge of this Court, would have had to recommence the hearing of the interlocutory matter. Doubtless a recommenced hearing before Smithers J. might, if the parties consented, be a very short re-hearing, using the transcript of the earlier hearing before the Australian Industrial Court. But the interlocutory application night have been part-heard or heard and not determined before a Judge of the Australian Industrial Court who did not receive a commission es a Judge of this Court. If the first interpretation were applied, in such a case a Judge of this Court would have to have a re-hearing of the interlocutory matter. The words in section 4(2)(e) do not seem apt to cover the partial or completed hearing of a matter, particularly as section 4(2)(b) gives a power to hear and determine but does not expressly confer a power to complete an already part-— heard hearing; let alone determine a matter which another Judge of a different Court has heard. The absence of an express power to continue the hearing of proceedings already part-heard before the Australian Industrial Court may be contrasted with the express power given in other instances. For example, in 1946, when the Conciliation Commissioners took over much of the jurisdiction previously exercised by Judges of the Commonwealth Court of Conciliation and Arbitration, section 3 of Act No. 10 of 1947, provided that "(2) A Conciliation Commissioner shall continue the hearing of and determine all matters ....the hearing of which had been commenced by the Court prior to the commencement of this Act ... (and) (3) ... shall have regard to any evidence given or reports made in the hearing of that matter prior to the commencement of this Act." In 1956, upon the establishment of the Commonwealth Conciliation and Arbitration Commission after the Boilermakerst Case, (94 C.L.R. 254; on appeal to Privy Council (1957) A.C. 288) section 46 of Act No. 44 of 1956 directed the Commission "to continue and complete the hearing and determination of industrial disputes and other matters, the hearing and determination of which had been begun by a Conciliation Commissioner but had not been completed before the commencement of this section". The Commissim was directed "to have regard to any evidence given and arguments adduced during that portion of the hearing which took place before the commencement of" the section. When the Flight Crew Officers' Industrial Tribunai took over certain functions of the Conciliation and Arbitration Commission Act 101 of 1967, section 5 inserted in the Conciliation and Arbitration Act a new section 88T(4) which expressly empowered that Tribunal to have regard to any evidence given or arguments adduced in proceedings before the Commission in relation to the industrial question that were not completed. We turn now to the remaining suggested interpretation that is that "the hearing of the proceedings" refers to the hearing of any part of the proceedings, including the hearing of an interlocutory application. It appears to us that the word "proceedings" when used in section 4(1) and when first used in section 4(2), refers to the action, suit or cause as a whole. The word "proceedings" when it is used for the second time in section 4(2) in association with the word "hearing", r should, we think, bear the same meaning. In other words, we do not consider that the legislature should be taken to have used the same word twice in section 4(2) with a different meaning in each case. This interpretation of the word "proceedings" as meaning any part of the proceedings is also consistent with the definition of the word "proceeding" in section 4 of the closely related Federal Court of Australia Act 1976. In that Act "proceeding" is defined to mean "a proceeding in a Court, whether between parties or not, and includes an incidental proceeding in the course of, or in connection with, a proceeding, and also includes an appeal". This particular interpretation does not produce practical difficulties. Indeed, where the Australian Industrial Court has concerned itself in an action, suit or cause to the extent of deciding preliminary questions of law, as has occurred in the present case, it would seem reasonable to conclude that the hearing of the proceeding had commenced and not unreasonable to require that Court to continue the proceedings until they have been finally determined. In the result, we have formed the opinion that the hearing of the proceedings had commenced before the Australian Industrial Court in the sense used in section 4 of the Federal Court of Australia (Consequential Provisions) Act 1976 and accordingly that the proceedings were not transferred to this Court. It follows that in our view this appeal must fail for lack of jurisdiction. We turn now to the substantive questions raised on the appeal. Notwithstanding our conclusion on jurisdiction, we consider it appropriate to express our views on these questions which were argued. The first question is whether the learned trial Judge, assuming he had jurisdiction, had power to recall or negate his order of 1st November 1976. Until an order is perfected it may be recalled. (Re Harrison's Share under a Settlement; Harrison v. Harrison (1955) Ch. 260). However, the general rule is that once an order is perfected, it cannot be set aside or altered otherwise than on appeal. It is common ground that the order of 1st November 1976 was perfected. Indeed, an application for leave or special leave was made to the High Court in respect of it. There are certain cases where the general rule does not apply; default orders, orders made ex parte or by consent, and certain orders of a court exercising bankruptcy jurisdiction appear to be outside the rule. Furthermore, there are some exceptions to the rule. Thus, if the order contains a clerical mistake or an error arising from an accidental slip or omission, or if it fails in its wording to reflect the intention of the court, 1t may be corrected. Again, if the order was made after a procedural irregularity so serious as to nullify the order, it may be set aside. Finally, if the order was obtained by fraud, it may be set aside. The present case does not fall within any of the classes of case which are outside the general rule or which are exceptions to the rule. However, it was argued for the plaintiff/appellant, that there are other exceptions to the general rule. It was submitted first that although the rule applied to final orders, different considerations applied to interlocutory orders and, secondly, that even a final order might be set aside if it was made on facts which it subsequently appeared were not the true facts. As to the first of these submissions, it appears to us tht it is correct to say that the order of the 1st November 1976 was an interlocutory order. (Salaman v. Warner (1891)1 Q.B. 734). But we are not persuaded that in applying the rule, different considerations apply to interlocutory orders. In support of the plaintiff/appellant's argument, reference was made to Penrice v. Williams (1883) 23 Ch.D. 353, and Lewis v. Daily Telegraph Limited (No. 2) (1964) 2 W.L.R. 736, but neither of these cases furnishes any support for the argument. Penrice v. Williams was a case of a consent order. In Lewis v. Daily Telegraph Limited (No. 2), Pearson L.J. (at p.742) approved the statements in the Annual Practice (1964) p.465, that unless express provision is made for the alteration, interlocutory orders stand in the same position as final orders and cannot be altered except on appeal. A similar statement appears in the Annual Practice (1976) Vol. 1 p.353. See also Hall v. Nominal Defendant 117 C.L.R. 423 at p.443. As to the second submission, there was an initial difficulty confronting the plaintiff/appellant in that it could not properly be asserted that the order of tst November 1976 was based on one set of facts and that it had subsequently appeared that the true facts were otherwise. The order of 1st November 1976, which directed that certain preliminary questions of law be decided before the hearing of the facts, and whicn settied those questions and set forth his Honour's answers thereto, was based on certain assumed facts. It is not entirely clear what these facts were. A statement of claim had been filed, but a substantial part of it had been struck out. The plaintiff had apparently prepared an amended statement of claim which ultimately was filed on 7th December 1976, Although it was not filed at the time of the order of 1st November 1976, it seems that an amended statement of claim was in fact before the learned trial Judge. One of the assumed facts, the correctness of which was challenged before us, concerned a copy of the memorandum and articles of association of the fourth defendant/respondent which had been submitted to the Trade Practices Commission with an application for an authorisation under the Trade Practices Act 1974. It was alleged, on behalf of the plaintiff/appellant, that there were amendments which had not been disclosed to the Trade Practices Commission or brought to the attention of the learned trial Judge. However, this allegation itself did not relate to a fact which had been litigated or determined. The assertion of the plaintiff/appellant in substance amounted to this, that the learned trial Judge should have formulated his preliminary questions and given his answers upon assumptions different from those which he had in fact adopted. However, leaving this difficulty on one side, it appears to us that the plaintiff/appellantts submission of law that an order may be set aside in the absence of fraud 1f the facts on which it was based are later found to be incorrect, must be rejected. For the plaintiff/appellant, reliance was placed upon four cases: Re Bruce (1886) 12 V.L.R. 696; McNally v. Jack (1885) 11 V.L.R. 666; Tuckett v. Blair (1888) 14 V.L.R. 264; and Hall v. Harris (1900) 25 V.L.R. 455. Re Bruce was a case before the Court of Insolvency; McNally v. Jack was a case of fraud; and Tuckett v. Blair concerned a consent order obtained by a misstatement of fact on the part of the applicant. These cases therefore do not appear to be directly in point, although in some there occurs a generality of statement about setting aside orders made improvidently or on facts which were withheld which may be thought to furnish some support for the plaintiff/appellant's submissions. In Hall v. Harris the Full Court of the Victorian Supreme Court decided the case upon another ground altogether, although in the course of reasons for judgment, it was indicated that they would be reluctant to say that when a judgment had been passed and entered, the Judge could not set aside the judgment if it was founded wholly upon his error as to a fact - 19 - and not upon any mistake as to his deliberation. However, it appears to us that the weight of authority is against the proposition contended for by the plaintiff/appellant (In Re St. Nazaire Company (1879) 12 Ch.D. 88 and Preston Banking Company v. William Allsup & Sons (1885) 1 Ch. 141; see Ivanhoe Gold Corporation Limited v. Symonds 4 C.L.R. 642 at pp. 669 et seq; Crown Solicitor for New South Wales v. Stubbs 42 C.L.R. 312 at p. 318; Grierson v. The King 60 C.L.R. 431 at p.436; cf. In Re Barrell Enterprises (1973) 1 W.L.R. 19). In our opinion, the learned trial Judge had no power to negate or recall his order in the sense of setting it aside. The question remains whether he had power to vary his order of 1st November 1976. In the summons issued on 16th March 1977, which was before the learned trial Judge on 23rd March 1977, one of the orders sought was an order that the order of 1st November 1976 be varied and that nineteen additional questions be raised and determined. In argument before us it was contended for the plaintiff/appellant that the Judge had jurisdiction to vary the order of 1st November 1976 and should have done so, although the argument on this was not put separately from, and indeed was confused with, the argument that the order should be set aside. It appears to us that although the general rule is that an order which has been perfected cannot be set aside, the operation of the order may, in appropriate circumstances be affected by a subsequent order. Different considerations apply in such a case. The application for a new order which alters the operation of the previous order starts with the assumption that the previous order was rightly made. There is no question of reversing or varying or re-hearing the original decision or order. The question is whether, in the circumstances, as they are later shown to exist, the applicant is entitled to be relieved from the operation of the original order. (Woods v. Sheriff of Queensland (1895) 6 Q.L.J. 163, per Griffith C.J. at p.163; Lewis v. Daily Telegraph Limited (No. 2) (1964) 2 W.L.R. 736 per Pearson L.J. at p.742.) In our view, assuming jurisdiction, the learned trial Judge would have had power to make an order varying the operation of the order of 1st November 1976, but we are not persuaded that any error has been shown on the part of the learned trial Judge which would justify interference with his exercise of discretion in refusing to vary it. Indeed, in all the circumstances, we would agree with his refusal. It appears to us that the conduct of the litigation has already resulted in too great an expenditure of time, effort and money on questions which it may be found do not arise at all when the actual facts are determined. Two matters remain to be mentioned. At the commencement of the hearing, the plaintiff/appellant tendered an affidavit of K.A. Hercules, sworn on 24th May 1977, to which he exhibited an agreement dated 25th March 1975 between Wincope (Australia) Pty. Limited and L. Grollo & Co. Pty. Limited (thereinafter called the client) and Theo Hammond & Partners (thereinafter called the architect). The affidavit also dealt with certain other matters. Counsel for the defendants/respondents did not object to the admissibility of the agreement, but did not concede that insofar as the affidavit dealt with other matters, the evidence should be admitted. The Court deferred its decision on whether it would admit the fresh evidence. Under the a Federal Court of Australia Act 1976, the Court on appeal has power in its discretion to receive further evidence (s.27). This is a power which the Court will exercise in accordance with the principles ordinarily followed by Courts hearing appeals. In the particular circumstances of this case, and having regard to the fact that Counsel for the defendants/respondents did not object to the admissibility of the agreement, we have come to the conclusion that the affidavit, insofar as it relates to the agreement, and the agreement, should be admitted, but that the Court should not accept evidence on the other matters dealt with by the affidavit. The final matter concerns the costs of the appeal. It was submitted on behalf of the defendants/respondemts that if the Court were minded to dismiss the appeal, it should order the plaintiff/appellant to pay the defendants/respondentst costs on a solicitor and client basis. We have given consideration to this submission and have come to the conclusion that cods should follow the event, but we are not satisfied that the Court in this case should depart from the usual order which it would make against an unsuccessful appellant. The order of the Court will be: appeal dismissed; order that the appellant pay the respondents! costs.