RAJSKI v BAINTON SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL SAMUELS, MAHONEY and HANDLEY JJA 18 February, 6 September 1991 [1991] NSWCA 232 PRACTICE AND PROCEDURE — Appeal from decision of Judge dismissing action as frivolous and vexatious — Appeal heard and judgment delivered dismissing appeal — Order dismissing appeal not entered — Application by appellant for order dismissing appeal to be set aside on the grounds that the Court failed to consider some of the appellant's arguments in the hearing of the appeal and misunderstood others. Held The application was competent under RSC Pt 40 r 9(1) and under the Court's inherent jurisdiction; State Rail Authority v Codelfa Construction Pty Ltd (No 2) (1981) 150 CLR 29 and Wentworth v Rogers (No 9) (1987) 8 NSWLR 388 applied; but the jurisdiction was to be exercised sparingly. In the circumstances the claimant had failed to establish any case for the exercise of the Court's jurisdiction to review its own orders. Taylor v Taylor (1978-79) 143 CLR; State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (No 2) (1981) 150 CLR 29; TJM Products Pty Ltd vA & P Tyres Pty Ltd & Ors (1987) 17 FCR 390; Wentworth v Rogers & Ors (No 9) (1987) 8 NSWLR 388; Yore Contractors Pty Ltd v Holcom Pty Ltd & Anor (Rogers CJ CommD, 13 July 1989, unreported); The New South Wales Bar Assn v Smith (Court of Appeal, 4 July 1991, unreported), cited. Samuels and Handley JJA. On 18 September 1986 Leszek John Rajski ('Rajski') filed a statement of claim seeking damages, interest and costs from Russell John Bainton ("Bainton') one of Her Majesty's Counsel. The cause of action upon which Rajski relied was conspiracy to abuse the process of the court and to pervert the course of justice. Bainton, in June 1984, had been briefed by Allen Allen & Hemsley ('Allens'), a firm of solicitors acting for a company, Tectran Corporation Pty Ltd ('Tectran') in proceedings against Raybos Australia Pty Ltd, ('Raybos'), a company controlled by Rajski, and against Rajski himself. The statement of claim asserted that Bainton became aware after he was retained that the allegations made by Tectran were false, but, notwithstanding that knowledge, agreed with various other persons to do everything necessary to represent to the court that Tectran was acting bona fide in the carriage of its proceedings. By that means Bainton sought to abuse the process of the court and to pervert the course of justice in order to force Raybos and Rajski into forensic submission. Bainton then moved to strike out the action on the ground that it was itself an abuse of the process of the court, relying upon Pt 13 r 5(1)(c), Pt 15 r 26(1)(a) and (c) of the rules of the Supreme Court, and the court's inherent power. The application came before Clarke J (as he then was) who, on 19 November 1987, gave judgment ordering that the statement of claim be struck out and the proceedings dismissed. Rajski appealed and the appeal was heard on 26, 27 and 28 February and | and 2 March 1990. After the argument had concluded, further very substantial written submissions were received, and while judgment was 2 UNREPORTED JUDGMENTS reserved, Rajski made an application to reopen the appeal in order to tender additional evidence pursuant to s 75A(7) of the Supreme Court Act. On 21 December 1990 the court refused that application and dismissed the appeal from Clarke J. On 25 January 1991 Rajski filed a notice of motion seeking that the order that the appeal be dismissed be set aside "so that the court may give further consideration to the matters raised in the notice of appeal and argued before the court but not dealt with in the judgment delivered on 21 December 1990". This claim was supported by Rajski's affidavits of 25 January and 12 February 1991. Further, it appears from an affidavit filed by Rajski's solicitor, Mr J T Johnson, that after Bainton had notice of Rajski's notice of motion, the orders dismissing the appeal and dismissing Rajski's motion for leave to produce further evidence were entered; and in an amended notice of motion Rajski seeks that those orders be set aside. The order that the Court should set aside its own order dismissing the appeal is sought pursuant to Pt 20 r 10, Pt 40 r 9 and the inherent power of the Court "to set aside and reconsider a judgment delivered on the basis of a misunderstanding or omission to consider matters properly raised before it." We do not think that Pt 20 r 10 (the 'slip rule') has any application, but there is no doubt that, by dint of Pt 40 r 9(1): "The Court may set aside or vary a judgment where notice of motion for the setting aside or variation is filed before entry of the judgment." The facts here satisfy that prescription, and the entry of the orders was ineffective to prevent review of the judgment, if that were indeed its purpose. It may be noted that the rule in debate in TJM Products Pty Ltd v A & P Tyres Pty Ltd & Ors (1987) 17 FCR 390 (O 35 r 7 of the rules of the Federal Court) differs significantly in its terms from Pt 40 r 9(1). The power is one to be exercised sparingly and with considerable care: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1981) 150 CLR 29 and Wentworth v Rogers & Ors (No 9) (1987) 8 NSWLR 388. In Codelfa, at 38, Mason and Wilson JJ, having concluded that the High Court had jurisdiction to entertain an application to vacate its orders, continued: Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional. At 45, Brennan J, having also concluded that there was jurisdiction to entertain the application, said: That jurisdiction inheres in this Court as a final court of appeal to prevent irremediable injustice being done by a Court of last resort, but the occasions of its exercise must be rare indeed. Reference may also be made to Taylor v Taylor (1978-79) 143 CLR 1, to Yore Contractors Pty Ltd v Holcom Pty Ltd & Anor (Rogers CJ CommD, 13 July 1989, unreported) and to The New South Wales Bar Assn v Smith (Court of Appeal, 4 July 1991, unreported). For reasons which will presently appear, we think it unnecessary to pursue the question of jurisdiction any more closely. The present application is made on the grounds that the Court failed to consider arguments put to it during the hearing of the appeal, and misunderstood others. Each of these grounds might provide reasons for a court to exercise its power to vacate or withdraw its final order and repair an omission or error, if the URJ RAJSKI v BAINTON (Samuels and Handley JJA) 3 interests of justice so required. But, first of all, the applicant should establish the basis for review, that is to say, that the suggested defect exists. In most cases, the existence of error or misunderstanding can be demonstrated by reference to the court's reasons. However, a failure to address a submission (it being clear that such a submission was made) cannot be established merely because it is not recited in the judgment. In complicated litigation, as this has been, accompanied by lengthy oral and profuse written submissions (on 23 April 1990 the Court received 461 pages of submissions provided by Rajski), it is quite understandable that a court will not deal explicitly with every variation upon which a party relies. In the present case, for example, Clarke J, in his detailed and careful judgment, said: The plaintiff may complain that I have not dealt in detail with each and every one of his myriad of complaints. To have done so in the light of the failure to show any evidentiary support for what I have described as guilty knowledge would involve enlarging these reasons greatly to no purpose. In this Court, Mahoney JA, (with whom, on the point with which he was then dealing, Handley JA and I agreed) observed: I have not attempted to detail, and to detail an examination of, every way in which the case was argued by Mr Rajski. I have confined what I have said to the main matters which have been put or have emerged. However, we can understand that it might not be regarded as wholly satisfactory if the judges who allegedly failed to consider some argument rebut the suggestion merely by denying it. For that reason, and for others which are inherent in the whole course and history of this litigation, and which we need not identify, we think that we should treat the application as we might treat an application for leave to appeal, and deal with the merits of the application before deciding whether or not we will, in this case, exercise our power to review the judgment. What may be open to review is the judgment, in the sense of the final dispositive order of the Court; in this case that the appeal, from Clarke J, be dismissed. Rajski seeks to have that judgment set aside. The facts of the matter are fully dealt with in Clarke J's judgment, and in the judgment of Mahoney JA. We need not recapitulate them, although it is necessary for us to augment in certain particulars the skeletal summary which we have already provided. We gratefully take these further facts from the very helpful written submissions provided to us by Mr John Basten of Counsel who appeared for Rajski. Pursuant to an agreement dated 15 February 1980 Tectran and Rajski were joint owners of computer software known as Raybol, such joint ownership to subsist until Tectran paid Rajski the sum of $2 million, whereupon the software would vest in Tectran. The agreement provided that, whilst joint ownership persisted, Tectran would not make the software available to any third party without Rajski's agreement. That agreement extended to "inter alia, any of the master copies of any designs, programs, listings, documentation, tapes or disks relating to" the software. Bainton did not argue that he was not aware of this agreement. At the outset of the proceedings which commenced in 1980, in which Tectran was the plaintiff and Raybos and Rajski defendants, the software was available in three forms, identified in the course of discovery. These were magnetic tapes, computer disks and a printout, each containing the source codes which 4 UNREPORTED JUDGMENTS constituted the software. It was ascertained early in the proceedings that the same source codes were found in each medium. It will be remembered that it was not until June 1984 that Bainton was briefed to appear for Tectran and associated interests. So far as relevant, Bainton first appeared, before Miles J on 26 November 1984, to oppose a motion by Rajski to pursue a cross-claim against a large number of cross-defendants. It is common ground that for that purpose Bainton made himself familiar with all the complex factual material which the proceedings had by then generated. Thus it is agreed that he read a large quantity of transcript recording the various applications which had been heard by different judges from at least February 1981. In November 1984, as the return day of the application by Rajski to join cross-defendants drew near, Tectran did not have in its possession the tapes or the printout (which was known as 293 from its number in the list of documents) which had been produced from the disks (known as 338 for the same reason) by one Cowper in December 1980. However, they did have the disks, and grounds to believe that Raybol, the software, comprised, in part at least, programs which, as Bainton's written submissions before Clarke J put it, had been "pirated from someone in the USA". So, in November 1984, Bainton advised his solicitors and his lay client, Tectran, to use the disks, which were then lodged in Allens' strongroom, for the purpose of producing and examining a further printout of the source codes. This was produced on 26 November 1984 and made available to Mr A Bainton, Bainton's son, who was a computer expert, for examination. The first ground upon which Rajski claims to be entitled to have our judgment set aside (since there can be no question of varying it) is that the Court, and Clarke J, failed to consider his argument that in giving that advice Bainton acted in disregard of certain court orders. Of these orders Bainton may be taken to have been aware, in the sense that he had read the transcript in which they are recorded. It must, of course, be appreciated that a triable issue of conspiracy against Bainton is not established merely by proof that he advised his clients to act in disregard of orders of the court. Rajski's case is that Bainton, in advising action contrary to such orders, was acting in such flagrant disregard of his professional obligations that the inference is open that he had abandoned the role of counsel and adopted that of conspirator. That is the triable issue that must be offered. The orders of the court (of various judges of the Supreme Court) upon which Rajski relied in his written submissions to Clarke J were "the June 1981 order", an order made in or about September 1981 and a further order made on 17 November 1981. In ground of appeal 6, which complained that Clarke J had failed to consider certain matters, the orders allegedly overlooked are those of 24 June 1981, 10 December 1984 and 3 December 1984. Reference may also be made to ground of appeal 5, and to paras 4 and 7 of Rajski's affidavit of 25 January 1991. In his written submissions Mr Basten advanced the following orders: of 12 February 1981 made by Rogers J, of 24 June 1981 made by Yeldham J, of 25 September 1981 made by Yeldham J, of 17 November 1981 made by Yeldham J and of 3 and 10 December made by Miles J. We will deal with them in turn. On 12 February 1981 Rogers J dealt with an application by Tectran for an order authorising the Commonwealth Trading Bank, which then had custody of the tapes, to make them available for examination to persons nominated by Tectran. However, it turned out that the person nominated to receive and hold the tapes on Tectran's behalf was not one of the two persons who would make copies URJ RAJSKI v BAINTON (Samuels and Handley JJA) 5 of them. The learned judge took the view that he would not release the tapes under those circumstances because there was a fundamental difference between making available a highly secret process, which he assumed the tapes to constitute, to three persons rather than to one. He thought it would be necessary to evaluate the situation later in the proceedings, and dismissed the motion seeking access to the tapes "without prejudice to the rights of the plaintiff to make another application in respect of such persons as it is intended should have access to the tapes..." On 24 June 1981 Yeldham J made an order in the following terms in respect of an application for access to the printouts: That these documents be put in envelopes and sealed; and if the parties want access to them, that can be done by arrangement with his Honour's associate on the understanding that they are confidential to the parties and their legal advisers and are not to be shown to, or disclosed to, any other person or persons without consent of the both parties or further order of the Court. In relation to Mr-Cowper and all other experts in the case, counsel to seek to agree on some formula for those people to see the exhibit. It will be observed that each of these orders was made in response to a specific application rendered necessary in the view of the moving party by a particular exigency in the case being run. Neither of them, in our opinion, can be regarded as any kind of a blanket restraint upon dealing with the tapes or the printouts respectively. In particular, Yeldham J's order of 24 June explicitly contemplated that experts might be required to handle the documents for the purpose, presumably, of advising the party by which they had been retained. On 25 September 1981 Yeldham J dealt with an application by Tectran which, so far as we can see, sought access to the printouts and other documents, including the manuals. The purpose was to enable Mr Cowper to refresh his memory before giving evidence in the case. His Honour, feeling that he was not at that stage fully apprised of the issues, thought that it was probable that if he were to grant the application "it might be unjust to the defendants." He continued: ...so far as the plaintiff is concerned, and Mr Cowper in particular, if it emerges during the course of his evidence that it is necessary for him to have access to any of those documents and it is desirable that he should have it, then I would have to consider what steps should then be taken to give him that opportunity. In the end, his Honour simply made no order in the application, reserving "the right of the plaintiff to make an application during the course of Mr Cowper's evidence, or otherwise at the resumed hearing, for access to these documents." We find it impossible to regard this order either as any kind of a blanket restraint upon dealing with any of the documents to which Yeldham J was then directing himself or, of course, with the tapes or disks. On 17 November 1981, after certain tests had been made which established that the contents of the disks and tapes, with some immaterial exceptions, were congruent, Yeldham J dealt with a further application by the plaintiff for leave to have an expert examine the disks. His Honour was at first disposed to permit this, but subsequently decided not to allow it on the footing that such an examination was not relevant to the narrow issue to which counsel for Raybos and Rajski undertook to confine his case. This plainly cannot be regarded as any kind of a blanket restraint upon dealing with any of these materials. 6 UNREPORTED JUDGMENTS It will be evident from this recital that all of these were orders made, as we have said, in the running of a case in response to particular questions which arose from time to time implicating the disks, tapes and printouts. Finally, there are the orders of December 1984. We find it unnecessary to say any more about these than that they were made, of course, after the advice in question had been given by Bainton, to which therefore they cannot be relevant. The argument, as we understand it, is that in making the applications which led to these orders, and in the discussions which took place in court before Miles J, Bainton did not disclose the prior dealings with the disks, and that this accordingly was evidentiary of the malign purpose which Rajski asserts. We do not think that, on any view, that evidence is capable of establishing a triable issue. Nor do we consider that the terms of the other orders are such as to establish as a triable issue that Bainton's advice implicated him in the conspiracy alleged. We do not think that Clarke J overlooked the argument based on the various orders, although it is apparent that he did not believe that it had substance. In the course of his judgment he said: The printout of 338 could have, in the absence of an inhibiting court order or undertaking, been taken perfectly properly. It is common ground that there was no court order or undertaking to the court which had that effect but the argument is that there was evidence suggesting the existence of an inter partes undertaking of somewhat uncertain content. His Honour's reference to "338" was a reference to the disks, and the alleged inter partes undertaking also concerned the disks. We see no reason not to accept his Honour's observation as indicating that no attempt was made before him to impose upon the order of 17 November 1981 (which concerned the disks) a significance which, in any case, it simply will not bear. Furthermore, although after Ex C had been put to Bainton in re-examination, Rajski was granted leave to cross-examine further, he made no attempt to challenge the propriety of the advice Bainton had given by reference to his understanding of any orders of the Court. Having regard to the terms of those orders they are quite incapable of sustaining a triable issue in the matter in the absence of some admission by Bainton; and there was none. Accordingly, if it be assumed that Clarke J and this Court overlooked the issue concerning any conflict between Bainton's advice and the terms of any court orders, the argument does not reveal that the issue, if pursued, is capable of raising the required inference against Bainton. There is therefore no warrant for setting the judgment aside on this ground, and no basis for review. The second ground upon which review is sought is that Clarke J and this Court both misunderstood the way in which the case had been run below. The argument, in some respects, has relevance to the first ground, and we have kept that in mind. It is contended that Bainton, before Clarke J, did not endeavour to establish that he had no knowledge of the court orders. So stated the proposition is correct. But once that knowledge was established or conceded, Bainton's complicity as a conspirator became a triable issue only if the orders on their face were capable of implicating him. If, however, they were not (and, in our opinion, they were not), then, without any admission by Bainton that he regarded them as having greater significance, they were incapable of establishing the allegations advanced. The submissions put to us must be considered against the factual background and the nature of the case which Rajski was seeking to make against Bainton. So far as relevant to this part of the argument Rajski was contending that, contrary URJ RAJSKI v BAINTON (Samuels and Handley JJA) 7 to, indeed, in deliberate defiance of, orders of the court and an inter partes undertaking, of all of which he had 'knowledge', Bainton advised his clients to take a printout of the disks for submission to experts. We have put knowledge between quotation marks for reasons which will appear in a moment. There can be no doubt but that the issue upon this point, before Clarke J and before us, was as we have just formulated it. Clarke J's finding was in these terms: It seems to me in these circumstances that the submission that it is open to a court to conclude that the defendant was, by advising or otherwise, combining with other persons deliberately to defy an inter partes undertaking for the purpose of harming the plaintiff can't be sustained. Even if it could be said, contrary to my view, that the defendant failed, in advising the taking of a dump for submission to experts, to give full weight to Oslington's statements, that conclusion would not, either viewed in isolation or in conjunction with the other evidence, support the case of conspiracy urged by the plaintiff. It seems to me that the support which the plaintiff seeks in this material depends upon the availability of an inference that the defendant counselled secret defiance of an inter partes undertaking. My conclusion adverse to the plaintiff on this point requires a rejection of his claim that this evidence supports the conspiracy asserted. It is true that in this Court Handley JA said, in the course of argument: "You failed below because Clarke J, as I read him on this point, was not satisfied that an inter partes undertaking was given." A little later on however Samuels JA observed: "You are trying to make good a charge that Mr Bainton with knowledge of an order and of an undertaking did certain things. I know you did not cross-examine him about the inter partes undertaking but I take it you did cross-examine him about other parts of that allegation." Mr Basten submitted that "the case below was run upon the absence of an undertaking": there was no case concerning the absence of knowledge of the undertaking." With all respect, this is not so. 'Knowledge' tends towards ambiguity, it is true; and in the present case it was necessary to distinguish between what Bainton knew, in the sense of knowing what he had read in the transcript and in correspondence, and what he knew in the sense of believed or accepted. If there had been evidence of orders or undertakings in terms which admitted only of one plain conclusion, then knowledge of the text would necessarily be conclusive of its meaning. But as we have endeavoured to show, no material of that simple character emerged here. Accordingly, the concession that Bainton had read the transcript could not constitute any admission as to the meaning or construction which he had attributed to what he had read. As Clarke J recorded concerning the dump of 338: "What the defendant disputes is that this was done in defiance of a Court order or inter partes undertaking." Indeed it is by no means clear that Clarke J rejected the existence of an undertaking; but it is plain that he concluded that the material was incapable of raising the inference that Bainton's advice was given in defiance of a court order or inter partes undertaking. Therefore the real issue was not whether Bainton had read the transcript (it was conceded he had although Clarke J was evidently disposed not to assume that he must have remembered everything he had read) but whether it was open to infer that he understood that his advice (to take a dump from 338) was contrary to the material on which Rajski relied. Accordingly, it seems to us that the criticism, made by Clarke J and repeated by this Court, that Rajski did not seek to cross-examine Bainton about his understanding whether his advice contradicted 8 UNREPORTED JUDGMENTS court orders or an undertaking, remains justified. It does not seem to us to matter that the concession that the disks were in fact used on his advice was first made in address after the evidence had been completed. It is true that Clarke J said that the concession that the disks had been inspected in November 1984 "came as a surprise to me"; but he also commented that it emerged from Bainton's evidence "that when he tendered particular advice to Allens concerning this copying... " We consider, with all respect, that it was tolerably plain from the evidence that Bainton advised taking a dump and that his advice was carried out. In re-examination he was asked this: MR JACOBSON: Q — Mr Bainton, you gave some evidence about some advice that was given prior to something being done by your son. Are you able to say in relation to the commencement of the proceedings, the hearing of the proceedings before Miles J when that advice was given? (Objected to: allowed). A — I wouldn't like to be categorical about it. It was around about the time of commencement I think, either just before or just after, if I correctly appreciate which piece of advice you are asking me about. Q— Are you able to say what were the circumstances in which the advice was given? A — This was the advice relating to my son? Q— Yes. A — Yes, I had some material which I wanted compared with some other material and some advice to the effect or possible effect on the litigation of the contents of one of the sets of material. Q — Was the advice given in conference? A — I think almost certainly, yes. I don't think I put it in writing. Q — Was there one conference or more than one conference? HIS HONOUR: You mean in relation to the Miles J application? Is that what you are talking about now? You are really trying to fix the time aren't you? MR JACOBSON: Yes. MR RAJSKI: I know exact date because I have the evidence. HIS HONOUR: Q — The first work done by Mr Bainton Junior was 20 November and I am sure Mr Bainton would agree it must have been before 20 November? A — Obviously. MR JACOBSON: Q — Were you shown any correspondence in the conference? A — Not at that conference. That happened at an earlier occasion and it was a consequence of what was done after that that I gave the advice to engage as it turned out my son for some further advice. The first set of advice must have been well before 20 November if that is the first date on which Tony carried out the activities he was asked to carry out but in connection with that earlier piece of advice yes, I was shown some correspondence. Q — (Shown Ex C). A — Yes I have seen this before. HIS HONOUR: Q — Is this what you were shown when you gave the first set of advice. Is not that the question? A — The sequence of events was this, when I started to prepare for the application before Miles I gave some advice that certain things should be done and that I should be briefed with certain material. Having given that advice Mr Lind came up to see me with copies of these letters for me to look at them and asked me to consider whether they revealed anything which would impede the implementation of the earlier advice. I took them away and I read them and after having done that and formed an opinion about them I had a further conference with both Mr Lind and Mr Jones and expressed the opinion I had formed having considered these letters. They went away and the earlier advice was then implemented. It was after the implementation of that earlier advice which was after the consideration of these letters URJ RAJSKI v BAINTON (Samuels and Handley JJA) 9 that I contacted my son and it was after that contact that he was asked by Allens to do what he in fact did and if he commenced it on 20 November that will be the sequence of events in the right order. HIS HONOUR: Q — And Mr Bainton, you said this was the correspondence that you were shown by Mr Lind when he came up? A— Yes. Q — Was this the totality of the correspondence you were shown on that occasion? A — On that particular question? Q— Yes? A— I believe it is. | have not gone back to check if there is anything missing, I think it is all here. Some of it, that is to say all but the last three letters were tendered by Cotman before Miles J. The last three weren't but I think this is the totality of the correspondence on the subject matter that I was asked to consider. MR JACOBSON: Q — Was there anything in that correspondence which caused you to reconsider or alter any of the advice that you had given? A — I reconsidered it but I didn't alter it. Q — You were asked at pp 102 and following about some orders that were said to have been made preventing Mr Rajski from contacting lawyers for Tectran and at p 104 the form of order was read out. Do you remember that order being read out in court? A—I remember two orders being read out, I remember his Honour reading one from a court record document and his Honour reading another from I'm not sure what it was. Q — (Shown p 104 of transcript)? A — Yes, I recollect that being read out that is the order Yeldham J made. Q — Were you aware of the terms of that order at the time of the [the word is indecipherable] incident that you have given evidence of? A — I was aware that Yeldham J had made some sort of an order, I was not aware of the precise terms of it. All I knew was what was recorded in the transcript and I remember when the order was read out forming the view that there was in fact more being read out than the transcript had recorded. The correspondence Bainton was shown included references to an inter partes undertaking. Clearly he was asked whether he considered that his advice was in any way inconsistent with anything which appeared in the documents. Rajski cross-examined further, but did not challenge Bainton's evidence concerning his view of the correspondence; nor did he raise the inter partes undertaking in any other way or suggest that the witness's advice was directly opposed to the requirements of orders of the court. He could certainly, in our view, have pursued all of these paths. We find it impossible to accept the argument that the concession about the use of the disks "avoided any basis for cross examination as to his beliefs in advising on such use." The advice was one thing, and the critical element: its implementation was another. We do not consider that Clarke J or this Court laboured under the misapprehension suggested. For these reasons we decline to review the judgments of 21 December 1990. We add one thing more of general import. Our decision in this case should not be regarded as an indication of the procedure the Court will generally adopt in dealing with an application for review. We emphasise that such an application will be rarely acceded to, and that care must be taken to discourage attempts to employ it as a substitute for, or as an alternative to, an application for special leave to appeal. In the majority of cases the first stage in the application, that is, whether review will be granted, can no doubt be determined without extensive examination of the record and without elaborate reasons. This case is not of the common run. It is unnecessary to deal with the entry of the orders. The motion must be dismissed with costs. 10 UNREPORTED JUDGMENTS Mahoney JA. I have the advantage of reading the judgment of Samuels and Handley JJA. I am in agreement generally with the conclusions at which their Honours have arrived and with the orders proposed by them. I would dismiss the present application for the following reasons. The application is that the court reconsider the conclusions it reached and the orders which it made on 21 December 1990 because, as it is alleged, there are "matters raised in the Notice of Appeal and argued before the Court but not dealt with in the judgments delivered on 21 December 1990". There are, in my opinion, three reasons why the application should be rejected: (a) The matters in question were "dealt with"; (b) The suggestion that a matter argued is not dealt with in the reasons for judgment is not a basis for an application such as the present; and (c) Such an application is appropriate only in "exceptional circumstances" and the present circumstance are not such. (a) The matters were "dealt with': The matter which, it is alleged, was not "dealt with" in the reasons of the court was the submission that there was "secret use" of certain computer material and that that had been brought about by Mr Bainton "in deliberate defiance" of "an inter-party undertaking" and certain court orders. (I have condensed the relevant part of the seven pages of Mr Rajski's written submissions on the appeal which have been cited by Mr Basten in the present application). Mr Rajski's submission was made in the following context. Mr Rajski had sued Mr Bainton for conspiracy. Mr Bainton had applied to strike out the proceeding because the statement of claim, inter alia, disclosed no properly arguable case. In order to show that it did, Mr Rajski sought to rely, inter alia, upon what, as he alleged, Mr Bainton had done with certain computer material. In my judgment, I pointed out the difficulty confronting Mr Rajski in the case he presented on the application and in particular the difficulty in relation to the matter now in question. It is difficult to state shortly what took place without the risk of oversimplification. But essentially the charge against Mr Bainton was that he had conspired with a Mr Carson and others to injure Mr Rajski, to abuse the court's process, and to interfere with the course of justice: Statement of Claim, cl 7. It was for this conspiracy that relief was sought. One of the matters "by reason of" which, as it was pleaded, this conspiracy occurred was an agreement made with Mr Bainton, "in or about October 1985", that he should seek access to certain computer material "in the custody of the Supreme Court of New South Wales" and that that should be done to prolong the existing court proceedings and to interfere with the course of justice: Statement of Claim, cl 6. It was the seeking of access to the computer material and for the achievement of those ends which was the thrust of this part of Mr Rajski's case. When, during the application, Mr Rajski sought to show that he had an arguable case in respect of the issues raised in this part of the Statement of Claim, he set up, inter alia, that, in or about November 1984 and not in October 1985, Mr Bainton had been concerned in procuring access to computer material, not in the possession of the Supreme Court, but in the possession of a firm of solicitors Allen Allen & Hemsley. URJ RAJSKI v BAINTON (Mahoney JA) 11 That matter had no apparent relationship to the case pleaded against Mr Bainton in the Statement of Claim. It did not go to establish the matter pleaded in cl 6 of the Statement of Claim nor was it evidence which would support the existence of the conspiracy which, in cl 7 of the Statement of Claim, had been pleaded. But the court nonetheless gave consideration to the matter in question. In doing so the court, as it pointed out, followed Clarke JA in allowing the argument to extend beyond Mr Rajski's case as pleaded. Clarke JA had considered whether, on the facts, there might be a case which could be set up by way of appropriate amendment to the Statement of Claim; this Court following the same course. To do this, it was necessary for the court to do two things: to attempt to formulate what precisely was the complaint which Mr Rajski was making in this regard; and then to see whether it would provide a proper basis for amendment of the statement of claim. In my judgment, I recorded the difficulty which faced the court in this regard. Essentially, the conspiracy pleaded against Mr Bainton appeared to rely in the main upon two things: the claim that Mr Bainton knowingly pressed a case against Mr Rajski that he knew was not a bona fide case; and a claim that Mr Bainton made applications for access to computer material for the collateral purpose of exhausting Mr Rajski's resources. It was the second of these to which the present matter was most closely related. It was, therefore, necessary to formulate precisely what Mr Rajski alleged in his argument before this Court, and then to see if it made out a case of that kind. There was no doubt but that Mr Bainton had been involved in seeking access to computer material held by Messrs Allen Allen & Hemsley: that was clear. It was to the circumstances of what Mr Bainton did that Mr Rajski directed argument. Mr Rajski's complaints against Mr Bainton in that regard were several: they included, for example, that Mr Bainton had failed to disclose to the court facts relevant to the matter and that he had deceived the court. But attention was directed mainly to the claim that Mr Bainton had acted "in deliberate defiance" of an inter-parties undertaking and of, as it was alleged, certain court orders. There was difficulty in seeing how the fact that what Mr Bainton had admittedly done was done "in deliberate defiance" of these matters assisted Mr Rajski's claim that there was a conspiracy. This part of his claim that there was a conspiracy depended upon the allegation that Mr Bainton had agreed to seek access to computer material and to do that for the purposes pleaded, viz, to exhaust Mr Rajski's resources and to interfere with the course of justice. It was, inter alia, "by reason of" that agreement that, as the pleadings suggested, the conspiracy was to be inferred. Whether a fact will ground an inference of conspiracy must, of course, depend on the conspiracy alleged. But in the circumstances advanced by Mr Rajski it was difficult to see how the fact that such an agreement was made or carried out in "deliberate defiance" of these matters assisted such an inference. However, following the course adopted by Clarke JA upon the original application and in fairness to Mr Rajski, I gave consideration to this part of his argument to see whether it could support an allegation that Mr Bainton had agreed to seek access to the computer material and to do it for the purposes alleged. As I have indicated, it was the allegation of the agreement pleaded that Mr Rajski had to make out — or, more accurately, to show was properly arguable 12 UNREPORTED JUDGMENTS — and the "deliberate defiance" of court orders or of an inter-parties undertaking was relevant, if at all, only so far as it might assist in establishing such agreement and conspiracy. There was little substance in the claim that Mr Bainton had acted contrary to orders of the court: in the present judgment of Samuels and Handley JJA reference is made to some of the material which makes this clear. If there was a case to show misconduct by Mr Bainton in this regard, Mr Rajski's strongest point lay in the allegation of breach of an inter-parties undertaking. I dealt at some length in my judgment, under the heading "The applications issue", with this aspect of the matter. I concluded that what was urged did not support the case that Mr Bainton had sought access to the computer material in breach of such an undertaking or that he had been party to a conspiracy of the kind which Mr Rajski appeared to put forward. In dealing with this matter I recorded that, in my consideration of the arguments put, I did not "detail the various ways in which Mr Rajski put this matter"; I indicated that the matter to which I had referred in relation to the use of the computer material was "sufficient to raise for consideration the main aspects of what was put". As I have said, I concluded that those arguments did not provide the foundation for the inference of a conspiracy of the kind alleged by Mr Rajski and that, the matters to which I had referred having failed, there was "nothing in the other matters to which reference has been made to support such a case'. I then considered whether the material which had been placed before the court would otherwise provide a reasonably arguable case for "a reformulated case against Mr Bainton". I concluded that it would not. I recorded that no reformulation of the Statement of Claim was suggested which could put the case against Mr Bainton more effectively than the existing Statement of Claim. Mr Basten, in his helpful submissions for Mr Rajski, has collected for the court material put by Mr Rajski in opposition to Mr Bainton's application, so far as it is immediately relevant. I have considered the matters to which Mr Basten has referred. What was done in relation to Mr Rajski's submissions does not mean that those matters were not "dealt with" by the judgments of the Court on 21 December 1990. (b) The need to refer to submissions in reasons for judgment: The fact (if it be such) that a judgment does not refer in terms to each issue raised or to each submission made in relation to it is no default: a fortiori, it does not justify an application to the court that the judgment be reconsidered. The fact that an issue or a submission is not pursued in terms does not mean that, in any relevant sense, it has not been "dealt with'. In the past, views of judges have differed as to what should be given by way of reasons for judgment. It may be that they will continue to differ. But in general there has been discussion in the cases of two things: when reasons must be given; and what reasons the law requires to be given. It is established that, in some but not all cases, the failure to give reasons for the orders made by a judge will constitute an error of law: see Pettitt v Dunkley (1971) 1 NSWLR 376. The matter was examined formally by this Court in Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378 and Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; and it has been referred to in the High Court: Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666 et seq; 676-7; (1984) 3 URJ RAJSKI v BAINTON (Mahoney JA) 13 NSWLR 447. In the present case, detailed reasons were given for the order dismissing Mr Rajski's proceeding. His present complaint is essentially that the reasons given were not sufficient. The reason why they were not sufficient is, the suggestion is, because, in dealing the allegation that Mr Bainton had agreed to seek access to computer material for the improper purposes alleged, the court dealt with the submission that he had done that "in deliberate defiance" of an inter-parties undertaking but had not dealt in terms with the allegation that he had done so "in deliberate defiance" of particular court orders. There is no mechanical formula for determining what reasons must be given for the orders which a judge makes. The reasons to be given are to be determined not by abstractions but by what the reasons are to do. Litigation is not a private game: it is a public procedure whereby disputes which parties have brought forward are formally determined. The judgment of the court is the public act of the State whereby such a dispute is determined. The reasons which are given are not given by way of legal essay: at least, they need not be. (I do not mean by this that a judge may not, in his reasons, say whatever he feels it proper to say. But what is here in question is not what a judge may say but what he must say). Reasons are given in essence as the formal statement by a judicial officer of the State of the basis on which he has, in the exercise of his office, affirmed the existence of rights in one party and not in the other. Essentially, reasons are part of a public act, the exercise of judicial power. In the ordinary case, the basic public function of reasons is twofold: to record the basis on which that exercise of judicial power has been made; and to enable the parties to know what, consequent upon the judgment, their rights are and how, by way of appeal or otherwise, they may act in exercise of them. In this sense, reasons go to professional matters: they are a professional statement, to be understood essentially by professionals, dealing with matters essentially professional. But there is, in my opinion, a third function. It derives from the broad context in which courts of justice operate. There is a public interest in maintaining public acceptance of judicial decisions and the judicial system. It is assumed that this will be assisted if courts give an explanation of why they have reached the conclusions they have and have made consequently the orders which have been made. Accordingly, it has been seen as desirable that appropriate reasons be given: see the general discussion of considerations of this kind in the judgments in Public Service Board of New South Wales v Osmond (1986) 159 CLR 656. But it is wrong to treat this consideration as requiring that reasons must be given on every issue and upon every argument. There are several reasons for this. First, the giving of reasons consumes much public time and resources. Judges must take time to prepare them; they must be recorded; and the paraphernalia of law reporting, indexing, and the like is expensive. These must be balanced against the assumption that good will be achieved by them. Second, the assumption that reasons will maintain a public acceptance of the judicial system requires the additional assumption that the public involved will read or otherwise know of the detail of the reasons, to an extent which will make worthwhile the detailing of them. Such an additional assumption should not, I think, be readily made. At least, any assumption in this regard must be significantly qualified. Third, this function requires only that reasons be given to the extent that the giving of them will achieve, as I have described it, the desired public acceptance of the judicial system. If what is desired is acceptance by the lawyers of what was 14 UNREPORTED JUDGMENTS decided, reasons need be brief: lawyers will seldom be in doubt as to the substantial reasons why they have won or lost. And if the parties' acceptance is in question, it will, as I have said, not be assumed that they will have read them or have been apprised of the detail of them. Whatever be the effect of considerations of this kind, it is a matter for judgment in each case as to what need be said. It has been suggested, I think, that what a judge is to do is ordinarily to give "the broad outlines and constitutive facts" of the basis of the orders which he has made: see the observations of McHugh JA in the Soulemezis case at 280 and of myself at 273. A judge may, in particular circumstances, conclude that he should not merely indicate by his reasons the basis on which his orders have been made; he may feel it necessary to go beyond that. But, in the end, it is not necessary that he pursue every argument or destroy every submission. And particularly is this so where, as in the present case, the arguments advanced have been many and the significance of them has been variable. In the present case the matter was before Clarke JA for, as the court was informed, some twenty-two days. This Court had before it the material that was before his Honour supplemented by further written material and some 500 pages or more of argument and submissions from Mr Rajski and some 150 pages from Mr Bainton. This was not a case in which it was necessary to pursue every argument raised in order that the matters in question should be "dealt with". (c) The nature of the present application: There is jurisdiction in this Court to hear an application for reconsideration of a judgment which has been given. Pt 40 r 9 makes this clear. But it is, in my opinion, important that it be made abundantly clear that such an application and the circumstances in which it may be brought should be "quite exceptional": see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1981) 150 CLR 29 at 38. A party having a legitimate claim has the right to seek every remedy which is properly available to him and to take such steps as properly he may take to obtain it. He is entitled to have his claim decided properly under the law. If it is not, he may take the steps which the law provides for the correction of the error. The remedy provided for error is primarily appeal. An application of the present kind may be made in circumstances which are "quite exceptional". But when it is made the court must balance against the need to correct an alleged error the interest of individuals and of the State "in maintaining the finality of litigation": ibid. Litigation can be an evil. It will be so if it is out of control. It may destroy the parties to it. It is not necessary for present purposes to attempt to mark out what circumstances will be "quite exceptional" so as to warrant an application of the present kind and the prolonging of the litigation involved. The proper exercise of the judicial discretion and the duty to do what is just will, I think, ordinarily lead to the conclusion that litigation should not be prolonged beyond its ordinary course. I do not doubt that there are cases in which justice will require that an application of the present kind be granted. But there is a distinction between justice and the law. That which is complained of in the present case is that a particular matter has not been "dealt with" in the judgments. That is not, in my opinion, the kind of matter to which Pt 40 r 9 applications should properly be directed. In my opinion, therefore, the application should be dismissed with costs. URJ RAJSKI v BAINTON (Mahoney JA) Orders accordingly. Counsel for the claimant: J Basten Counsel for the opponent: P M Jacobsen Solicitors for the claimant: Johnson & Co Solicitors for the opponent: Bruce & Stewart Turton