Gamser v Nominal Defendant [1977] HCA 7

High Court of Australia Barwick C.J. Gibbs, Stephen, Murphy and Aickin JJ. Gamser v Nominal Defendant [1977] HCA 7

ORDER Appeal no. 148 of 1976 dismissed with costs. Appeal no. 98 of 1975 allowed with costs. Order of the Supreme Court of New South Wales (Court of Appeal Division) set aside and in lieu thereof order that the appeal to that Court be dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1977, Feb. 25 Barwick C.J.

I have had the advantage of reading the reasons for judgment prepared in these appeals by my brother Aickin. I am in full agreement with these reasons and the conclusion that the Supreme Court, Court of Appeal Division, had no power to set aside and reopen the judgment already given and entered and that there was no basis on which the Court could properly interfere with the amount of the judgment of the learned trial judge.

In my opinion appeal no. 148 of 1976 should be dismissed and appeal no. 98 of 1975 should be allowed with costs the orders of the Supreme Court, Court of Appeal Division, set aside and in lieu thereof that it be ordered that the appeal to that Court be dismissed with costs.

Gibbs J.

I have had the advantage of reading the reasons for judgment prepared by my brother Aickin.

I agree that appeal no. 148 of 1976 must be dismissed for the reasons which my brother Aickin has given. I regard it as unfortunate that the inherent power of an appellate court does not extend to varying its own orders when the interests of justice require it. It is of course a most important principle, based on sound grounds of policy, that there should be finality in litigation. However, exceptional cases may arise in which it clearly appears from further evidence that has become available that a judgment which has been given rested on assumptions that were false and that it would be manifestly unjust if the judgment were allowed to stand. In my opinion it is desirable that the Court of Appeal should have a discretion—however guardedly it might have to be exercised—to reopen its judgments in cases such as that in which the needs of justice require it. I agree, however, that the decision in Bailey v. Marinoff [1] shows that the Court of Appeal lacks that inherent power.