Wilcox & Anor v Richardson & Anor [1999] NSWCA 192

New South Wales Court of Appeal CITATION : Wilcox & Anor v Richardson & Anor [1999] NSWCA 192 FILE NUMBER(S) : CA 40559/96 HEARING DATE(S) : 8 June 1999 JUDGMENT DATE : 8 June 1999

PARTIES : Graham Milton WILCOX, Rosanna WILCOX and John William SPICER, Brigitta SPICER v John Herbert RICHARDSON, Judith Dean RICHARDSON and KIAMA DEVELOPMENT CO PTY LIMITED (ACN 000 296 980) and John Desmond FRENCH JUDGMENT OF : Meagher JA at 1; Handley JA at 8; Powell JA at 9

LOWER COURT JURISDICTION : Supreme Court LOWER COURT FILE NUMBER(S) : CA 40559/96 LOWER COURT JUDICIAL OFFICER : Meagher, Handley, Powell JJA

COUNSEL : Appellant: D. Knaggs (sol) Respondent: G.R. Waugh SOLICITORS : Appellant: D. Knaggs Respondent: Warren McKeon Dickson CATCHWORDS : Practice and Procedure - effect of Court of Appeal judgement entered and taken out - application by way of notice of motion to have judgment set aside for illegaility. CASES CITED: Gamser v the Nominal Defendant -(1976) 136 CLR 145, Bailey v Marinoff (1971) 125 CLR 529, Haig v The Minister (1994) 85 LGERA. DECISION : Notice of motion dismissed with costs.

- 2 - THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA: 40559/96 MEAGHER JA HANDLEY JA POWELL JA

Tuesday, 8 June 1999 GRAHAM MILTON WILCOX v JOHN HERBERT RICHARDSON JUDGMENT

1 MEAGHER JA: This is a motion by Kiama Development Company Pty Ltd and Mr John Desmond French. They are two of the respondents in an appeal in which the appellants were Mr and Mrs Wilcox and Mr and Mrs Spicer and the respondents were Mr and Mrs Richardson, Kiama Development Company Pty Ltd and a Mr French. 2 This appeal which concerned very strenuously contested questions of fact and some obscure questions of law was decided by this Court in July 1997 and the orders made by this Court were perfected in September 1997. 3 The applicants to this notice of motion, Kiama Development Company Pty Ltd and Mr French seek certain orders, the principal one of which is the first namely that the judgment of this Court of 31 July 1997 be set aside. The reason for this application is that according to Mr Knaggs the solicitor for the applicants, the original Crown lease in cl 12 contained an illegality and all subsequent subleases were totally illegal. This is a submission which was not made to us in any shape or form during the litigation. 4 Whether the submission is right or wrong and in my view I am unconvinced of its correctness, the legal position as it stands now is that stated very succinctly by Sir Garfield Barwick in Gamser v The Nominal Defendant (1976) 136 CLR 145 at 146. What his Honour says is in line with the previous decision of the High Court in Bailey v Marinoff (1971) 125 CLR 529. Put briefly, what those two High Court authorities say is that the Court of Appeal has no power to set aside and reopen a judgment already given and entered and there is no basis upon which that court could properly interfere with a judgment so entered. In my view that states the law. 5 It is perfectly true the decision in this Court of Haig v The Minister (1994) 85 LGERA in which the matter was dealt with by Kirby J, Kirby J expressed the view that there was jurisdiction in this Court to reopen a perfected judgment but only in exceptional circumstances. 6 The authorities on which his Honour relied in my view do not substantiate the conclusion which he reached. The other members of the court did not agree with his views and in any event, they are in sharp contrast to the views of the High Court. 7 In those circumstances in my view we have no option but to dismiss this notice of motion with costs. 8 HANDLEY JA: I agree. 9 POWELL JA: As do I. 10 MEAGHER JA: The order of the Court therefore is that the motion is dismissed with costs.