GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ROSNIAK [NO 2] [1992] NSWCA 94

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v ROSNIAK [NO 2]

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MEAGHER JJA 17 and 21 August 1992, 29 October 1992

[1992] NSWCA 94

PRACTICE and PROCEDURE — judgment — following appeal to Court of Appeal — order not perfected — judgment not entered — application by party for order setting aside or varying the judgment and review thereof — complaint that judgment based upon failure of the members of the Court separately to determine the plaintiff's application to expand her cross appeal upon which rested the order for retrial favoured by Kirby P — complaint that Kirby P and Meagher JA (and possibly Mahoney JA) erred in assuming that the plaintiff's fund of damages would be exhausted after nine years — evidence suggests exhaustion after about 25 years — plaintiff's life expectancy accepted as 61 years — whether argument forbidden by Todorovic and Anor v Waller (1981) 150 CLR 402 — held: (1) The power to set aside or vary a judgment of the Court of Appeal is discretionary, one to be exercised rarely and only in exceptional circumstances having regard to the desirability of the maintenance of the finality of litigation. Smith vy New South Wales Bar Association [No 2] (1992) 66 ALJR 605 (HC); Rajski v Bainton, Court of Appeal, unreported, 18 February 1991; (1991) NSWJB 3 applied; (2) One ground for the reopening of an order or judgment pronounced was demonstration of a mistake or misapprehension going to the root of the judgment. State Rail Authority of New South Wales v Codelfa Constructions Pty Ltd (1982) 150 CLR 29 applied; (3) To resolve differences of opinion in a collegiate court, and thereby to secure an order of the Court disposing of proceedings, it is open to the judge junior in seniority to agree with the orders of the senior judge. Pennant Hills Restaurants Pty Ltd v Barrell Insurances Pty Ltd [1977] 2 NSWLR 827 (CA) 866; O'Brien v Tanning Research Laboratories Inc (1988) 14 NSWLR 601 (CA) 641 applied; (4) As this had been done by Meagher JA in the instant case, and as it was adhered to, no error appeared warranting reopening; (5) Although error on the assumption of the depletion of the fund from 9 years was shown, it remained open to conclusion that the fund would be depleted in about 25 years which could result in an injustice to the plaintiff warranting the conclusion that she should have the opportunity, by evidence at a retrial, to challenge the consequences which followed from Todorovic and Anor v Waller (above); (6) Accordingly, (per Kirby P, Meagher JA concurring) no basis was shown to reopen the orders of the Court which were affirmed and should be entered without delay. (per Mahoney JA): Any suggested errors could be corrected at the retrial.