New South Wales Supreme Court CITATION : Norsemeter Holdings AS v Pieter Boele [No. 2] [2002] NSWSC 389 FILE NUMBER(S) : SC HEARING DATE(S) : 24/04/02 JUDGMENT DATE : 24 April 2002 PARTIES : Norsemeter Holdings AS (Plaintiff) Pieter Boele (Defendant) JUDGMENT OF : Einstein J COUNSEL : Mr D Sturzaker (solicitor) (Plaintiff) Mr A Street SC (Defendant) SOLICITORS : Corrs Chambers Westgarth (Plaintiff) Hogan Geikie Poole (Defendant) CATCHWORDS : Evidence - Admissibility - Formal proof of terms of foreign legislation - Power to dispense with rules of evidence - Practice and Procedure - Notice of Motion - Set aside or vary judgment - Evidence Act 1995 9NSW) LEGISLATION CITED : Norwegian Civil Procedure Act 1915 Supreme Court Act 1970 (NSW) Autodesk Inc v Dyason [No. 2] (1993) 176 CLR 300 Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 Idoport Pty Limited & Anor v National Australia Bank & Ors [2001] NSWSC 661 CASES CITED : New South Wales Bar Association v Smith (unreported, NSWCA 4 July 1991) BC 9102691 Pittalis v Sherefettin [1986] QB 868 Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (No 15) (unreported 8 July 1993, NSWCA, BC 9301784) Smith v New South Wales Bar Association (1992) 176 CLR 256 DECISION : The court grants leave to the plaintiff · to have an opportunity to adduce further evidence in relation to the regulations made under the Norwegian legislation, to which Mr Sturzaker referred in his affidavit of 8 March 2002; · to deal also with the terms of the legislation as well as terms of the formal proof thereof; · to permit the defendants an opportunity, as they had with respect to section 49, to adduce evidence also going to the terms of the legislation and the regulations. IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST EINSTEIN J Wednesday 24 April 2002 ex tempore Revised Friday 10 May 2002 50173/01 NORSEMETER HOLDINGS AS v PIETER BOELE [No. 2] JUDGMENT 1 In proceedings No. 50173 of 2001 an ex tempore judgment was delivered on 19 April 2002. The judgment granted limited leave to the plaintiff to attend to the adducing of further evidence in relation to the formal proving of the terms of section 49 of the Norwegian Civil Procedure Act 1915. The judgment stated that it seemed appropriate that the plaintiff be granted the leave, which it sought, to formally prove the terms of the section and that subject only to the formalisation of the proof of the terms of the section, there was no effective 'revocation' under that section. The judgment included: "Whilst I have considerable doubt as to whether or not this is a matter which may be said to be bona fide in dispute and have had in mind the possibility of dispensing with the rules of evidence for proving the section, on reflection, it seems appropriate to permit the plaintiffs the leave to which I have referred. It is perhaps appropriate to add that I do not see the precise terms of the section as determinative of the issue raised on the motion." 2 The judgment further included: "The plaintiff will be given an opportunity to attend to the adducing of further evidence in relation to section 49 and both parties will then be heard on that issue. The defendants may respond by adducing their own evidence only on that matter. Any further submissions relating to that matter and to the effect of that evidence upon this judgment will then be taken and no doubt short minutes of order will then be in order. 3 The proceedings before the court today have included the filing by consent by the plaintiff of an affidavit of 23 April 2002 by Ms Ann Stensletten, who is a registered interpreter and translator with the National Accreditation Authority for Translation and Interpreters. A copy of her affidavit is appended to this supplementary judgment. 4 The position in so far as the defendant has been concerned has today fallen into three separate categories. The first relates to the admissibility of the material in the affidavit. The affidavit has been objected to on the grounds of relevance and centrally on grounds to be found in submissions which the defendant seeks leave to address, which have been marked for identification MFI 24/4/D. Those paragraphs of those submissions which the defendant relies upon in the objection to the reading of the affidavit are paragraphs 1 through to 6 inclusive and paragraph 7(a). 5 The Evidence Act 1995 (NSW) section 174, dealing with evidence of foreign law, provides that evidence of a statute, proclamation, treaty or act of state of a foreign country may be adduced in a proceeding by producing, inter alia, a copy of the statute, proclamation, treaty or act of state that is proved to be an "examined copy". Mr Street of senior counsel for the defendant, has in answer to a question as to whether an objection is taken to the affidavit to which I have referred on the basis that the statute is not proved to be an examined copy, fairly and frankly conceded that in so far as the terms of the statute are concerned, that form of objection is not taken. He has squarely referred to and fairly conceded that in that regard the provisions of section 82 of the Supreme Court Act 1970 (NSW) would be appropriately enlivened were the objection to be taken - in short, the court may dispense with the rules of evidence for proving any matter which is not bona fide in dispute. It seems to me that in those circumstances, whilst it may not strictly now be necessary for the court to dispense with the rules of evidence, it is appropriate notwithstanding that the objection is not taken, to dispense with the rules of evidence for proving formally the terms of section 49. Accordingly the Court dispenses with those rules of evidence. 6 In so far as the other objections, to the reading of the affidavit are concerned, in my view they are not of substance, and the whole of the affidavit is therefore read. 7 The second of the matters which has been the subject of submission from the bar table concerns Mr Street's application to address supplementary submissions outside, as it seems to me, the term of the leave granted by the ex tempore judgment, which, as I have indicated, was specifically and expressly limited to giving both parties an opportunity to attend to the adducing of further evidence in relation to section 49 and to giving both parties an opportunity to be heard only on that issue. In so far as Mr Street's submissions have been to the effect that there is a material difference between the terms of section 49 now formally proven by Ms Ann Stensletten and the terms of that section referred to in the ex tempore judgment, my view is that there is plainly no material difference or difference in substance. In those circumstances, the formal proving of the section which has occurred today leads to no different or other reasons than precisely the same reasons as were given in the ex tempore judgment. Use of the words in the ex tempore judgment "revocation under that section" by reference to the translation before the court on the first occasion may conveniently be regarded, now that the section has been formally proved, as intended to have the same meaning as there having been no effective 'withdrawal of authority' under that section. 8 The second of the matters which Mr Street sought to raise today requires one to consider the circumstances in which the court having jurisdiction under part 40, rule 9, to entertain a motion to set aside or vary a judgment, provided that the motion is filed before entry of the judgment will see fit to exercise such a discretion. As was pointed out in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 265: "It has long been the common law that a court may review, correct or alter its judgment at any time until its order has been perfected." 9 The circumstances in which a court will recall or reopen a judgment were set out in paragraph 9 of the judgment of this court in Idoport Pty Limited & Anor v National Australia Bank & Ors [2001] NSWSC 661: "I accept as correct the defendants' submissions as to the circumstances in which a court will recall or reopen a judgment. Those submissions were as follows: "In Autodesk Inc v Dyason [No. 2] (1993) 176 CLR 300 at 302-3, Mason CJ identified various circumstances in which, under the authorities, the Court has exercised the jurisdiction to reopen a judgment which has apparently miscarried. One of the circumstances identified was the case of New South Wales Bar Association v Smith (unreported, NSWCA 4 July 1991) in which the New South Wales Court of Appeal reconsidered orders previously made in view of an argument that the Court had mistakenly assumed that particular evidence had not been given at earlier hearings. Another example given was Pittalis v Sherefettin [1986] QB 868 in which a judge recalled orders the day after the day they were made upon determining that he had erred in a material matter in his approach to the case. The guiding principle, as stated by Mason CJ (at 302) is as follows: "These examples indicate that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue where a court has good reason to consider that, in its earlier judgment, it has proceeded on a misapprehension as to the facts or the law." In the present case, the judgment is given in respect of an interlocutory question, namely the regime which is to govern access to certain documents pending the hearing of a motion. In such a case, if it be established that the Court has proceeded on a misapprehension, the Court should not be slow to take the step of reviewing or rehearing an issue: see for example Hutchinson v Nominal Defendant [1972] 1 NSWLR 443 at 447-448; Raybos Australia Pty Ltd v Tectran Corporation Pty Ltd (unreported) NSW Court of Appeal 8 July 1993, Priestley JA (BC9301787 at 6)." 10 The guiding principle, as stated by Mason CJ in Autodesk Inc. v Dyason, (supra) at 302, makes clear that the public interest in the finality of litigation will not preclude the exceptional step of reviewing or rehearing an issue where a court has good reason to consider that in its earlier judgment it has proceeded on a misapprehension as to the facts or the law. 11 In my view, none of the submissions which Mr Street seeks to reagitate, or to now agitate, in the document marked for identification MFI 24/4/D provides good reason for the court to consider that it proceeded on a misapprehension as to the facts or the law in the ex tempore judgment. For those reasons, the court declines to review or rehear issues which were litigated during the hearing of the motion last Thursday. 12 The third of the matters raised by Mr Street concerns the claims by the plaintiff to interest in terms of the summary judgment which will be entered. On the hearing of the motion an affidavit by Mr Sturzaker of 8 March 2002 in that regard was read. It seems to me that the matter concerning the question of the interest pursued by the plaintiff should, as an additional matter to the matters in respect of which the parties were granted leave to address further submissions, be treated with in the same way. 13 In short, it seems to me appropriate to grant leave to both parties to address the questions of interest as a matter of the formal identification of the Norwegian legislation and regulations and as a matter of the proper approach to be taken in terms of whether the court orders the summary judgment as to all or part, including the interest section, as a judgment by way of an amount expressed in the relevant kroner figure or Australian dollar figure. 14 For those reasons, I am disposed to grant leave to the plaintiff: · to have an opportunity to adduce further evidence in relation to the regulations made under the Norwegian legislation, to which Mr Sturzaker referred in his affidavit of 8 March 2002; · to deal also with the terms of the legislation as well as terms of the formal proof thereof; · to permit the defendants an opportunity, as they had with respect to section 49, to adduce evidence also going to the terms of the legislation and the regulations. 15 It is also then appropriate for both parties to be given an opportunity to address such submissions as they may seek to address on the questions of principle as to whether the judgment should be entered in Australian currency or otherwise, and as to the question of the time from which interest is to run and how it is to be calculated. I certify that paragraphs 1 – 15 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 24 April 2002 ex tempore and revised on 10 May 2002 ___________________ Susan Piggott Associate 10 May 2002 Last Modified: 06/21/2002 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.