Industrial Relations Commission of New South Wales in Court Session CITATION : Vasile Nan v Andreas Van den Berg and ors [2004] NSWIRComm 361 PARTIES : Vasile Nan v Andreas Van den Berg and ors FILE NUMBER: IRC 6240 of 2003 CORAM: Kavanagh J; Haylen J; Staunton J CATCHWORDS : Application for leave to appeal and appeal decision to dismiss Notice of Motion - Motion to join party to orders under s 275 of the Industrial Relations Act 1991, alternatively to join party to proceedings after orders perfected - evidence led as to wife's interest in business of the respondents against whom orders stand - enforcement of judgment frustrated - respondent company deregistered - individual respondent's assets in joint names or liquidated - power of Full Bench of Commission in Court Session to grant orders sought - application effectively to re-open original case after orders entered - finality of decision - no error - applicant bound by conduct of original proceedings - invitation to join wife in original proceedings declined by appellant - leave to appeal refused Autodesk Inc v Dyason (No 2) (1993) 176 CLR 30 Bailey v Marinoff (1971) 125 CLR 529 Blair v Curran (1939) 62 CLR 464 Caltex Petroleum Pty Ltd v Harmer (1999) 99 IR 264 at 269 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1987-1988) 165 CLR 268 Fairfax Publications Pty Ltd v Abernathy [1999] NSWSC 820 House v The King (1936) 55 CLR 499 Metwally v University of Wollongong (1985) 60 ALR 68 Nan v Van den Berg & anor (unreported, 21 February 1997, Cahill VP, Ct 1140 of 1996 CASES CITED : Peipkorn v Caroma Industries Pty Ltd [2002] FCA 182 Perrott v Xcellenet Ltd (1998) 84 IR 255 at 265 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 Rogers v Queen (1994) 181 CLR 251 State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 Venkata's Case (1886) 11 App Cas at 663-664 Walton v Gardiner (1992) 177 CLR 378 at 393 Wentworth v Wentworth [1999] NSWSC 638 WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2002) 124 IR 59 HEARING DATES: 10/28/2004; 10/29/2004 DATE OF JUDGMENT: 11/26/2004 APPELLANT: Mr Vasile Nan in person LEGAL REPRESENTATIVES: FIRST AND THIRD RESPONDENTS: Mr G Stuart, Solicitor SOLICITORS: Heidtman & Co JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Kavanagh J Haylen J Staunton J 26 November 2004 Matter No. IRC 6240 of 2003 Vasile Nan v Andreas Van den Berg and ors. Application by Vasile Dan to extend time to appeal and leave to appeal and appeal against the judgments of Justice Cahill and Justice Peterson given on 21.2.1997 and 18.9.2003 in Matter No CT 1140 of 1996 JUDGMENT OF THE FULL BENCH [2004] NSWIRComm 361 1 The appellant, Vasile Nan, applies for leave to appeal, and if leave is granted appeals a judgment of Peterson J of 18 September 2003, pursuant to ss187 and 189 of the Industrial Relations Act 1996. BACKGROUND 2 On 31 May 1996, the appellant brought proceedings under s275 of the Industrial Relations Act 1991 against Andreas Van den Berg ("the first respondent"), Range Transport Pty Ltd ("the second respondent") and Mountain Bulk Haulage Pty Ltd. The appellant discontinued proceedings against the third respondent, Mountain Bulk Haulage Pty Ltd, on 25 September 1996. 3 On 21 February 1997, Cahill VP delivered a first instance judgment in favour of the appellant and against the first and second respondent. The judgment provided for payment in the amount of $53,441.75, together with interest calculated at the statutory rate as from 2 March 1995 payable by the first and second respondents, jointly and severally. There was also an order made in respect of costs. (Nan v Van den Berg & anor (unreported, 21 February 1997, Cahill J, VP, CT 1140 of 1996). 4 The appellant was unsuccessful in his attempts to enforce the judgment of Cahill VP against either the first and or second respondents. While the appellant has taken a number of steps to enforce the orders of the Court, by the time the order was entered the second respondent, Range Transport Pty Ltd , had ceased trading and has since been deregistered. The first respondent, Mr Van den Berg, retired and has no assets except for a home jointly owned with his wife. The appellant feels frustrated by these events and, in effect, asserts that the respondents have arranged their affairs so as to frustrate satisfaction of the orders made by the Court. On the application for leave to appeal and appeal, the respondents submitted no evidence to explain the financial circumstances that left the orders of the Court unsatisfied. That omission may have added to the appellant's suspicion but the evidentiary position was not advanced beyond that state. 5 Having been unable to enforce the orders of the Court, a Notice of Motion was then filed by the appellant on 14 April 2003, seeking an order amending the orders made in February 1997 by inserting as a fourth respondent the wife of the first respondent, Mrs Elfriede Van Den Berg or alternatively, seeking an order allowing the appellant to join her as a fourth respondent to the application heard by Cahill VP. While, on their face, these seem unusual orders, they reflect the appellant's apparent view that Mr and Mrs Van den Berg were jointly responsible for the operation of Range Transport Pty Ltd and were each culpable for the unfair contract found to exist by Cahill VP in the 1997 judgment. It seems that the appellant relies on the facts of joint ownership of the truck, the holding of shares in Range Transport Pty Ltd and the occupation of the position of company secretary in Range Transport Pty Ltd as amounting to culpable conduct on the part of Mrs Van den Berg in relation to the impugned contract. That evidence, by itself, does not go that far but may have been sufficient to support an order for joinder if that application had been made at an appropriate time. On the appellant's approach, if Mr Van den Berg was culpably involved in the contract then so was his wife: thus, on the motion, the first order sought was simply to insert the name of Mrs Van den Berg in the existing orders making her immediately jointly and severally liable for the payment of $53,441.75 plus interest and costs without any further hearing. The alternative order appeared to contemplate joinder of Mrs Van den Berg as a respondent and as such would require the further hearing of the matter. THE JUDGMENT 6. On 18 September 2003, the Motion came before Peterson J. It is noted that by the time the motion was heard, the second respondent had been deregistered. In dismissing the Motion, his Honour stated: 5 I have now on three occasions sought to deal with the motion, which is opposed by the existing respondents and by Mrs Van Den Berg. 6 On 22 May 2003 Mr Collinge, solicitor, appeared for the applicant, at which time I expressed some concern about the nature of the application and the power of the court to grant the relief which the motion sought. On 3 July 2003 the matter was again dealt with and then stood over to enable Mr Nan to obtain legal representation, his former representation then having withdrawn. 7 Today Mr Isaksen, solicitor, has appeared for the applicant and advanced arguments in support of the motion. Whilst I am fully appreciative of the dilemma which has faced Mr Nan in pursuing what he no doubt sees as his rightful entitlement in executing the orders of Justice Cahill, the question before the Commission now is whether the court can either amend the orders of Justice Cahill or amend the original application under s 275 by adding a further respondent. 8 No argument has been able to be advanced on behalf of the applicant which would persuade me that the court presently has the power to do as the motion seeks. Because of the limited argument which has been advanced against the motion I do not intend to elaborate any further on concerns which I have felt about the matter. 9 It seems to me to be necessary that the Commission order that the motion be dismissed, thereby bringing to an end this attempt to, as it were, revive the proceedings. I so order: Vasile Nan v Andrew Van den Berg & Ors [2003] NSWIRComm 322. 7 On 2 March 2004, Kavanagh J on delegation from the Full Bench, ordered Mrs Elfriede Van den Berg, be joined as a respondent to the appellant's application for an extension of time and for leave to appeal and to appeal, the ex tempore judgment of Peterson J, particularly to allow Mrs Van den Berg to be heard on these issues and proposed orders. On 16 March 2004, Kavanagh J granted an extension of time for the application for leave to appeal and appeal. 8 Mr Nan in his application for leave to appeal and appeal was self represented. A certified Romanian interpreter was required and attended over the two day hearing. Mr G. Stuart, solicitor, appeared for the first and fourth respondents to the appeal. 9 The matter now before the Full Bench raises the question of leave to appeal and appeal against the decision of Peterson J of 18 September 2003. The Application for Leave to Appeal and Appeal advances three reasons in support of his application being: i) it is in the interests of justice to grant the appeal; ii) the Appellant has limited English and has been poorly advised; iii) the Appellant is entitled to the relief sought. The Grounds of Appeal relied upon state, "J Peterson [sic] was wrong". SUBMISSIONS 10 The appellant filed a statement on leave to appeal and to appeal. Some 31 documents were tendered by the appellant without objection: they included various court documents, transcripts, affidavits and bank statements, mostly collated from the proceedings heard by Cahill VP. 11 Much of the evidence presented was relied upon by the appellant to prove his allegation that Mrs Elfriede Van den Berg ("the fourth respondent") had a legal interest in the second respondent and in a truck that was registered in the names of Mr and Mrs Van den Berg. The appellant claimed, however, that he had an interest in the truck but the truck was sold by the respondents. 12 Joint submissions on leave to appeal and appeal were filed by the first respondent and the fourth respondent. The first and fourth respondents contend that the issues to be considered in relation to the appellant's application for leave to appeal and to appeal are as follows: i. whether the appellant is seeking to appeal the decision of Cahill VP, and if so, whether such an appeal is competent? ii. whether the application for leave to appeal discloses any valid basis to grant leave? iii. whether the appeal in respect of the Motion as heard discloses in the grounds of appeal an error of law in the judgment of Peterson J? iv. whether the Appellant is estopped from seeking the relief sought in the application for leave to appeal and to appeal? v. whether the appeal constitutes an abuse of process? vi. whether s170 of the Industrial Relations Act 1996 applies? RESPONDENTS' SUBMISSIONS AS TO LEAVE 13 The respondents submit that the appellant's claim has been heard and finally determined by Cahill VP and justice has been afforded to the appellant with respect to his claim. The respondents also assert there is no doubt as to the correctness of the judgment of Peterson J and as such there is no reason to warrant it being considered on appeal. 14 As to the issue of the appellant's legal representation during the course of these entire proceedings, the respondents contend that the appellant was legally represented, at all relevant times. The appellant further submits that any question as to the quality and content of the advice provided to the appellant by his legal representatives or the quality of that representation in the Commission is a matter for him to take up with those legal representatives and has no relevance to the present application. 15 The respondents submit the appellant's appeal is frivolous and vexatious and has no prospect of success. The respondents further submit that the appellant is estopped from seeking the orders sought or alternatively, the appeal is an abuse of the Commission's processes (Peipkorn v Caroma Industries Pty Ltd [2002] FCA 182). 16 The respondents contend the appellant will not suffer any injustice if leave to appeal is refused as the appellant's cause of action has been finally and conclusively determined in his favour (Peipkorn). RESPONDENTS' SUBMISSIONS ON APPEAL 17 The respondents indicate there is no error of law disclosed in the appellant's application or in his affidavit setting out the grounds upon which the relief claimed was sought. On this basis alone, the respondents submit, the appeal should fail. 18 The respondents submit that in essence, the appeal from the judgment of Peterson J, seeks to allow the appellant to either: i. re-litigate the cause of action with Mrs Van den Berg as a further respondent; or ii. add Mrs Van den Berg as a judgment debtor without her having had the opportunity to defend the cause of action. 19 The respondents submit the appellant is prevented from appealing the judgment of Cahill VP, as the time for filing such an appeal expired on 14 March 1997. The respondents also submit the appellant is estopped from re-litigating the cause of action against the first respondent, as the issues have been litigated and determined by Cahill VP. The respondents further submit the appellant's cause of action has merged with the judgment of Cahill VP and that the doctrine of res judicata applies (Blair v Curran (1939) 62 CLR 464). 20 Similarly, as against the fourth respondent, it is also submitted that the appellant is estopped from re-litigating the cause of action. The respondents contend the fourth respondent could have and should have been joined as a respondent to the proceedings before Cahill VP (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589). However, any failure to do so is a matter for the appellant to raise with his legal representatives. 21 The respondents contend that to allow the appellant's appeal would be contrary to the public interest in that there must be an end to litigation (Rogers v The Queen (1994) 181 CLR 251). If the fourth respondent was joined as a respondent to the appellant's initial application, it would be necessary to re-litigate the appellant's application in circumstances where the cause of action pursued by the appellant has already been finally determined by the Commission. 22 The respondents further submit there is no legal basis to allow the appellant to add the fourth respondent as a judgment debtor to the judgment of Cahill VP. The fourth respondent was not a party to the proceedings and to allow the joinder would be oppressive and unjust to the fourth respondent. Clearly the fourth respondent was not afforded an opportunity to defend herself against the allegations advanced by the appellant. To impose on her an obligation to satisfy a judgment debt in these circumstances would be oppressive, unjust and contrary to the public interest. It is also submitted that the appellant's appeal is an abuse of the Commission's processes (Walton v Gardiner (1992) 177 CLR 378 at 393). 23 Ultimately, the respondents assert the appropriate course is for the appellant to pursue enforcement of the judgment of Cahill VP. LEAVE 24 Section 188(1) of the Industrial Relations Act 1996 provides an appeal to a Full Bench of the Commission may be made only with the leave of the Full Bench. Section 188(2) requires that leave be granted if the Full Bench is of the opinion that the matter is of such importance that in the public interest, leave should be granted. 25 The principles applicable to the granting of leave to appeal are well settled: 1. Leave will not lightly or automatically be granted: Perrott v Xcellenet Limited (1998) 84 IR 255 at 265. The legislative intention is to restrict access to appeals to appropriate cases and cases meeting the public interest test stated in s.188(2) of the Act. ( WorkCover Authority of New South Wales (Inspector Moore) v Blacktown City Council (2002) 124 IR 59). 2. Leave would ordinarily be refused where an appeal raises arguments which were not squarely raised at first instance, that is, where the appellant has brought, in substance, a new or materially different case on appeal: Caltex Petroleum Pty Ltd v Harmer (1999) 99 IR 264 at 269. 3. An appeal should raise substantial and important considerations, and any public interest considerations need to be evaluated in the light of the nature of the issues raised in the appeal, including firstly whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission and secondly including whether the decision has widespread practical application. THE EVIDENCE AND NATURE OF THE APPLICATION 26 At the relevant times Mrs Van den Berg was one of the two directors of the second respondent was a shareholder and was the company secretary. Mr and Mrs Van den Berg appear as the only shareholders in the second respondent. 27 Evidence revealed that there were proceedings before Marks J when interlocutory orders were sought, designed to prevent any dealing with the Volvo truck (which had been re-possessed from Mr Nan by the respondents) before the matter was concluded. In those interlocutory proceedings, the legal representative for the respondents drew to the court's attention the fact that the truck was jointly owned by Mr and Mrs Van den Berg but that only Mr Van Den Berg had been joined as a respondent to the application. The respondents argued before Marks J that the interlocutory order could not be fully effective unless Mrs Van den Berg was joined. At this early stage in the proceedings, Mrs Van den Berg's connection with the case was clearly exposed but no application was made by the appellant, who at that stage had legal representation, to amend the Summons for Relief so as to join her as a respondent. The matter proceeded before Cahill VP without Mrs Van den Berg being joined as a party. 28 The substance of the appellant's application before Peterson J therefore was to seek to re-open the proceedings determined by Cahill VP some six years after judgment was delivered, after he had failed to successfully enforce the judgment, and, in circumstances where no party sought to appeal the judgment at first instance. Mr Nan, of course, had no reason to appeal the judgment because he was successful at first instance and had obtained orders of the court in his favour. Significantly, four months after judgment the Court's order was entered under seal and the matter was concluded. PRINCIPLES APPLICABLE ON RE-OPENING 29 The law and applicable principles related to a court's power to re-open a case becomes a matter at issue before us. There is no inherent power in a court (including the Supreme Court of NSW) to deal with a further matter or appeal which has already been dismissed by formal order and where the order was entered before an application to vary it was made. In Bailey v Marinoff (1971) 125 CLR 529, Barwick CJ stated at (530): Once an order disposing of a proceeding has been perfected by being drawn up as the record of the Court, that proceeding, apart from any specific and relevant statutory provision, is at an end in that the Court and is in its substance, in my opinion, beyond recall by that Court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a Court to have a power to reinstate a proceeding of which it has finally disposed. 30 The principles referred to in Bailey were later considered by the High Court in FAI General Insurance Co Ltd v Southern Cross Exploration NL (1987-1988) 165 CLR 268. In that case the court was dealing with rules of the court and seemed to confine the decision in Bailey to the inherent jurisdiction of the court, and in some of the judgments restricted it to judgments of the Court of Appeal. However, Gaudron J noted that the statements of Barwick CJ and other members of the Court were in broad and general terms of principle. In the absence of a specific statutory provision or rule permitting the re-opening of the case, the court is usually regarded as functus officio and the matter is incapable of being revived. 31 In Wentworth v Wentworth [1999] NSWSC 638, Santow J dealt with the issue of re-opening a judgment that had been entered and considered both the principle of re-opening and what constituted a judgment which had been entered. In relation to these matters his Honour stated: 3. The jurisdiction to re-open is, as I explain, an exceptional jurisdiction. It is to be exercised only where warranted. Otherwise, public policy in favour of finality of litigation will be jeopardised. The question here is whether its invocation is indeed justified. It is clearly important that Courts in the interests of justice do not fail to recognise when those exceptional circumstances are made out. No less important is that unjustified applications are discouraged. ... 6. The jurisdiction to set aside or vary a judgment prior to entry of judgment or the relevant order had its origin in the common law power in that behalf. The jurisdiction is recognised in the Supreme Court Rules; see Pt 40, rr 9 & 10. Apart from the so called 'slip rule' a Court has an inherent power at common law to review, correct or alter its judgment or orders before the judgment or order has been entered. This is a power which applies both to a single judge or an appellate court including the High Court. It is exemplified in Smith v NSW Bar Association (No 2) (1992) 176 CLR 256, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; State Rail Authority of NSW v Codelfa Construction Pty Ltd (1982) 150 CLR 29 and Yenald Nominees Pty Ltd v Como Investments Pty Ltd and ors (1996) ATPR 41-508. 7. However, even after a Court's judgment or order has been perfected by entry, the jurisdiction to re-open may be exercised, although the circumstances must again be exceptional. As Walsh J said in Bailey v Marinoff (1971) 125 CLR 529 at 535 and speaking generally of the jurisdiction to re-open before or after judgment is perfected, Courts have not been disposed to extend the range of circumstances in which their inherent jurisdiction to set aside or vary judgments and orders may be invoked, or to treat that jurisdiction as allowing variations in judgments or orders whenever the interests of justice might seem to demand variation: see generally Enid Campbell 'Revocation and Variation in Administrative Decisions' (1996) 22 Mon LR 30 at 33-38. 8. When, for that purpose, is judgment or an order entered? A policy of the finality of litigation underpins our system of law: Bailey v Marinoff (supra) per Gibbs J at 539. Entry of judgments or orders in the Registry of the Court achieves this finality by brining the litigation to an end: see Holtby v Hodgson (1889) 24 QBD 103 at 107; Antoniadis v Ramsay Surgical Ltd [1972] VR 323; Tripp Ltd v Henderson Investments Pty Ltd (1990) 101 FLR 261. 'Entering' (or 'authenticating' as it is sometimes known in other jurisdictions) judgment in the case of a Court of Record is the formal process by which the judgment or orders of the Court are 'perfected' by being drawn up as a record of the Court; see Bailey v Marinoff per Barwick CJ at 530. The judgments and orders of Courts of Record are not perfected until they have been formally passed and entered into the Court's record (R v Bellington [1980] VR 625). This is in contrast to a Court not of record whose judgment is perfected by the pronouncement. All judgments of the Supreme Court of New South Wales are required, subject to limited exceptions, to be entered: Pt 42 R 11(1) of the Supreme Court Rules ... . Entry of judgment is accomplished by the Registrar sealing a Minute of the judgment or order, which has been previously signed by a Registrar or the Judge or Master who made the judgment or order and filed: Pt 42 r 13 of the Rules. ... 10. For purposes of the doctrine of res judicata, the effect of giving judgment is said to be that 'the cause of action in respect of which it was given is merged in the judgment and its place is taken by the rights created by the judgment': Halsbury's Laws of England (4th ed) Vol 26 par 551; Commonwealth of Australia v Precision Pools Pty Ltd (1994) 53 FCR 183 at 191. At the time of delivering judgment a Judge is not yet functus officio: Cheeseman v Bowaters United Kingdom Paper Mills [1971] 3 All ER 513. In Driver v Driver (supra) at 10 Napier CJ said that until a judgment was entered it was 'inchoate and incomplete' having 'not yet passed from the control of the Judge who pronounced it'. ... 15. The discretion to re-open or vary judgment is thus significantly qualified. As is so often said, the power should 'be exercised with great caution'; Wentworth v Woollahra Municipal Council (1982) 149 CLR 672 at 684 ... 32 Santow J went on to consider cases where the power to re-open had been exercised and where it had been refused as giving a guide to the circumstances in which re-opening will be available. His Honour noted that in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 30, the discretion was not exercised because the parties had been sufficiently heard on the impugned issue. The judgment in Autodesk Inc applies the principle of functus officio yet admits of a discretion to re-open in very limited circumstances. In Fairfax Publications Pty Ltd v Abernathy [1999] NSWSC 820, Adams J stated: It is the essence of the notion of 'functus officio' that the relevant function or office has been discharged or performed 'the purpose for which its creation has been fulfilled' (Leung v Minister for Immigration (1997) 79 FCR 400 per Finkelstein J at 410; Jayasinghe v Minister for Immigration and Ethnic Affairs and anor, unreported, Federal Court of Australia, Goldberg J, 25 June 1997; Winters v Cross (1976) 1 NSWLR 616 per Samuels AJ at 624). 33 In Metwally v University of Wollongong (1985) 60 ALR 68, application was made to the High Court to vary an earlier order made by the Court and hear further argument. In this application the Court stated (at 70-71): It may be assumed, without deciding, that the Court had power to vacate its order of 22 November 1994, notwithstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 42 IELR 289; 150 CLR 29 at 38. The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order had been made against a party who was not heard. Mr Metwally was represented - and competently represented - in the argument before this Court ... . It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so. 34 The power to re-open, if it exists in a case where judgment is perfected, must be exercised with great caution. The jurisdiction should only be exercised when exceptional circumstances are made out. The authorities refer to a circumstance such as fraud, mistake or a party to the litigation not being heard as a circumstance which may be considered so exceptional as to attract a decision to re-open a perfected order of the court. A policy of finality of litigation underpins our system of law. CONSIDERATION 35 The relevant circumstances established by the evidence were as follows: (a) at an early stage of the proceedings in the Commission, Mr Nan and his legal advisors were put on notice as to the interest Mrs Van den Berg had in the truck which was, at least, partly the subject of the proceedings; (b) it was clear from the evidence that Mrs Van den Berg was a director and shareholder in the second respondent; (c) no application was made to amend the original proceedings before the Commission to join Mrs Van den Berg as a party to the litigation; (d) on 27 June 1997, over four months after judgment was delivered by Cahill VP, the court's order was 'entered' and the matter was concluded. The order was therefore "perfected". 36 Mr Nan now alleges that he had given instructions to his original legal advisors to join Mrs Van den Berg as a respondent. There was a change of solicitor during the proceedings. No steps were taken to join Mrs Van den Berg at any stage of the proceedings before Cahill VP. 37 As in Metwally, it would appear that Mr Nan was legally represented but if his instructions were not followed then Mr Nan may have another cause of action, albeit different to the one he pursues in these proceedings. The application continued before Cahill VP and was concluded without the joinder of Mrs Van den Berg being sought by the appellant. 38 In argument before Peterson J, when the enormity of the difficulties facing the application were being discussed, a different solicitor was appearing for Mr Nan: he indicated that if any proceedings were to be initiated against previous legal representatives, claiming professional negligence in the handling of Mr Nan's case, then the law required that all available steps to correct the alleged omissions should be taken and this application, unusual as it was, was such a step. 39 As to the grounds of appeal the appellant argues: i) It is in the interests of justice to grant the appeal. We reject this submission. While the appellant has suffered in not being able to enforce a judgment of this court, it is not in the interests of justice to grant an appeal in the nature of an application to re-open where there was for the applicant an available opportunity to join a party, where an order was perfected, and where there was no mistake or fraud in the order. ii) The appellant has limited English and has been poorly advised. The appellant before the Court has always been assisted by a certified interpreter. He had legal representation for most of the proceedings before before Cahill VP and before Peterson J for the hearing of the Notice of Motion. Mr Nan is bound by the conduct of his case by his legal representatives. iii) The appellant is entitled to the relief sought. The appellant has no entitlement to relief - to re-open the proceedings the appellant bears the onus to establish circumstances to the standard laid down by settled authority. The appellant has failed in this, admittedly, difficult task. 40 Whether by application of the principle of finality of litigation, the application of the principle of functus officio or upon the application of the principles dealing with re-opening of judgments entered and finalised, there is no proper ground to permit the re-opening as sought by the appellant. 41 The application is bound to fail; that in itself is sufficient reason to refuse leave to appeal against the decision of Peterson J. 42 The application for leave therefore does not satisfy the statutory requirements for leave to be granted. We find the appeal of the judgment of Peterson J fails to identify any requisite error as recognised in House v The King (1936) 55 CLR 499. In State Rail Authority of NSW v. Codelfa Construction Pty. Ltd. (1982) 150 CLR 29 at 38-9 there was a reference to Venkata's Case (1886) 11 App Cas, at 663-664 where Lord Brougham's quoted words from Rae's Case , which we find are still apposite: . . . There is a salutary maxim which ought to be observed by all Courts of last resort - Interest republicae ut sit finis litium. Its strict observance may occasionally entail hardship upon individual litigants, but the mischief arising from that source must be small in comparison with the great mischief which would necessarily result from doubt being thrown upon the finality of the decisions . . . The legal maxim quoted says that it concerns the State that there be an end to litigation. 43 Accordingly we give the following orders in disposition of the appeal: (1) Leave to appeal is refused. (2) The appeal is dismissed. POSTSCRIPT After the hearing had concluded and while the judgment was reserved, the appellant sent to the Court a Department of Lands Title Search for a property in Lithgow. The search showed the property to be held by Mr and Mrs Van den Berg as tenants in common together with other information. The Court gave no leave for this document to be filed by the appellant and it was wrong of him to forward it to the Court without leave and/or the consent of the respondents. The document has, therefore, not been taken into account in the conclusions reached by the Court. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.