Lunn v Cardiff Coal Co (No 2) [2003] NSWSC 25

New South Wales Supreme Court

CITATION : Lunn v Cardiff Coal Co (No 2) [2003] NSWSC 25 HEARING DATE(S) : 04/02/03 JUDGMENT DATE : 10 February 2003 JURISDICTION: Equity Division JUDGMENT OF : Barrett J DECISION : Application to set aside judgment dismissed.

CATCHWORDS : PROCEDURE - re-opening after judgment - obvious error of law asserted - CORPORATIONS - whether court's inherent jurisdiction extends to making of order for dissolution or winding up of body corporate created by statute LEGISLATION CITED : Cardiff Coal Company's Incorporation Act of 1863 Corporations Act 2001 (Cth) Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513 CASES CITED : Lunn v The Cardiff Coal Company [2002] NSWSC 1247 Wentworth v Rogers [2002] NSWSC 921 PARTIES : William Herbert Lunn - Plaintiff The Cardiff Coal Company - Defendant FILE NUMBER(S) : SC 5095/02 COUNSEL : Mr P.A. Hewitt, Solicitor - Plaintiff ex parte SOLICITORS : Hewitts Commercial Lawyers - Plaintiff

- 13 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION CORPORATIONS LIST

BARRETT J

MONDAY, 10 FEBRUARY 2003

5095/02 - LUNN v THE CARDIFF COAL COMPANY (NO 2)

JUDGMENT

1 On 20 December 2002, I dismissed an application by the plaintiff for an order for the winding up of the Cardiff Coal Company the proprietors of shares in which from time to time were, by the Cardiff Coal Company's Incorporation Act of 1863, made "one body politic and corporate": see Lunn v The Cardiff Coal Company [2002] NSWSC 1247. 2 Subsequently, on 4 February 2003, Mr Hewitt, who again appeared for the plaintiff, filed in court, by leave, a notice of motion under Part 40 rule 9(1) of the Supreme Court Rules by which the plaintiff sought to have the judgment of 20 December 2002 set aside. I directed that the notice of motion be returnable instanter, heard the application and reserved my decision. 3 The plaintiff's application was advanced on the footing that the original decision was affected by an obvious error of law of such a kind that it is open to the trial judge to correct the position and necessary that he do so. In Wentworth v Rogers [2002] NSWSC 921, I had occasion to consider the authorities concerning re-opening after judgment and said: "It seems to me that the relevant principles, as they apply in a case such as the present, can be summarised in one basic proposition, namely, that a single judge whose decision is susceptible to appeal through readily available channels (with or without any preliminary need for leave to appeal) should allow re-opening after judgment where it is obvious to that judge that the decision has miscarried and that the miscarriage may be rectified and the situation retrieved by attention to the matter by that judge rather than by an appeal court. What is highly undesirable is that the first instance judge should be cast in the role of hearing what amounts to an appeal against his or her own decision. I adopt, in that connection, the following observation of Rix LJ in Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513: 'I do not wish to say anything against the usefulness of the reconsideration jurisdiction, within its proper limits. I have made use of it myself. However, it is in the nature of the legal process that, once judgment has been rendered, analysis thereafter becomes clarified and refined, and citation of authority is applied to the findings made at first instance so as to illuminate that clarification and refinement of analysis of which I speak. But that is the function of the appeal process. In my judgment, to grant this application that I reconsider my judgment would subvert the appeal process itself. In doing so, it would not answer the interests of justice, but would be the antithesis of justice according to law. There are of course cases where an error of fact or law may be too clear for argument. The best test of that is perhaps - but not necessarily - where the judge himself identifies the error which concerns him. In such a case, it is better that the error is corrected without imposing on the parties the need for an appeal. But no parallel to Noga's application has been cited to me. It is in my judgment wrong for a judge to be treated to an exposition such as would be presented to a court of appeal. If in such circumstances a judge should be tempted to open up reconsideration of his judgment, an appeal would not be avoided, it would be made inevitable. Every case would become subject to an unending process of reconsideration, followed by appeal, both on the issue of reconsideration and on the merits.'" 4 I must therefore decide on the present application whether the judgment of 20 December 2002 was affected by an error of law "too clear for argument" so that, in the words of Rix LJ in Compagnie Noga D'Importation et D'Exportation SA v Abacha [2001] 3 All ER 513, "it is better that the error is corrected without imposing on the parties the need for an appeal". 5 The aspect of the judgment of 20 December 2002 exhibiting such an error of law is, in Mr Hewitt's submission, that dealing with the question whether the court's inherent jurisdiction enables it to make an order for the dissolution or winding up of a body corporate created by Act of Parliament, in circumstances where neither the incorporating Act nor any other statute for the time being in force contemplates the making of such an order in relation to that body corporate. At paragraphs 26 to 30 of the judgment of 20 December 2002, I held that such an order could not be made in exercise of the court's inherent jurisdiction and gave reasons for so holding. 6 It is now submitted on behalf of the plaintiff that that conclusion is wrong as a matter of law in such a way as to warrant exercise of the jurisdiction to re-open after judgment. That contention was advanced by means of written submissions supplemented orally on 4 February 2003. Mr Hewitt obviously devoted considerable time and effort to the preparation of the written submissions. So that I may be sure to do them justice, I set them out in full: " Inherent jurisdiction of the court