New South Wales Supreme Court CITATION : Gate Gourmet Australia Pty Limited (in liquidation) v Gate Gourmet Holding AG & Ors [2004] NSWSC 761 HEARING DATE(S) : 18 August 2004 JUDGMENT DATE : 18 August 2004 JURISDICTION: Equity Division Commercial List JUDGMENT OF : Einstein J DECISION : Notice of Motion dismissed. CATCHWORDS : Practice and procedure - Part 31 separate question determination - Judgment delivered - Application for reasons for judgment to be reviewed and varied - Principles LEGISLATION CITED : Supreme Court Rules 1970 (NSW) Trade Practices Act 1974 (Cth) Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 Amalgamated Television Services Pty Limited v Marsden [1999] NSWCA 313 Arthur Anderson & Co (a firm) v GPA Group PLC & Ors [Spender, Drummond and Sundberg JJ, Federal Court of Australia Queensland District Registry, November 1998, unreported], BC9806237 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 Brimaud v Honeysett Instant Print Pty Limited, [McLelland J, Supreme Court of New South Wales, 19 September 1988, unreported] BC8801491 De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207 Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290 CASES CITED : R v Nitin Giri (No 2) [2001] NSWCCA 234 Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29 Sydney Airport Corp Limited v Baulderstone Hornibrook Engineering Pty Limited [2003] NSWSC 486 Twenty-First Australia Inc v Shade (1998) NSWSC 325, BC9803667 Wentworth v Rogers [2002] NSWSC 921 Wentworth v Wentworth [1999] NSWSC 638 Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672 Gate Gourmet Australia Pty Limited (in liquidation) ACN 089 347 562 (Plaintiff) Gate Gourmet Holding AG, Company Number CH-020.3.003.945-1 (First Plaintiff) Gate Gourmet (Holdings) Pty Limited ACN 004 122 872 (Second Defendant) PARTIES : Odd Gunnar Engebretsen (Third Defendant) Lars Fredrik Larsen (Fourth Defendant) Henning Boysen (Fifth Defendant) Lucas Grolimund (Sixth Defendant) Gate Gourmet Switzerland GMBH (Seventh Defendant) FILE NUMBER(S) : SC 50180/01 COUNSEL : Mr B Coles QC, Ms E Collins (Plaintiff) Mr M Pembroke QC, Mr N Perram (Second, Fifth, Sixth and Seventh Defendants) SOLICITORS : Clayton Utz (Plaintiff) Mallesons Stephen Jaques (Second, Fifth, Sixth and Seventh Defendants) IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION COMMERCIAL LIST Einstein J Wednesday 18 August 2004 ex tempore Revised 24 August 2004 50180/01 Gate Gourmet Australia Pty Limited (in liquidation) v Gate Gourmet Holdings AG & Ors JUDGMENT The background 1 Following the delivery of the reserved judgment handed down on 31 March 2004 dealing with all issues other than quantification of the plaintiff's damages, attempts have been made by the parties to prepare for the final hearing of the remaining issues. Those attempts have met with a number of difficulties, the most recent occurrence being the vacation of the hearing date set to commence on 16 August 2004, two days ago. 2 Notwithstanding the vacation of that hearing date, the matter has been listed for the purpose of the Court endeavouring to understand and deal with some of the threshold concerns of the parties so as to be in a position to better case manage the further directions which require to be given to achieve a circumstance in which all parties will, after so much time, be ready to finally litigate all outstanding issues as soon as practicable. 3 It is obviously unnecessary to repeat that which may be found the judgment which is to be read as a whole. The definitions used in the judgment and the terminology used in the judgment are adopted for present purposes. It will, however, be necessary to refer to some very limited portions of the reserve judgment in what follows. The defendants' approach/application 4 The most significant issue has been put in a number of ways by the defendants. It is primarily put by dint of a notice of motion filed on 18 August 2004 as an application for the reasons for judgment to be reviewed and varied as to the section titled "Inducement" consisting of paragraphs 307 to 313. The Court's power to review and vary reasons for judgment 5 The Court has an inherent power to reopen a hearing, inter alia, for the purpose of reviewing and varying reasons for judgment before any judgment or order has been entered [Wentworth v Wentworth [1999] NSWSC 638 paragraph 6, per Santow J]. 6 There is no serious issue as to the principles to be applied in relation to such applications. 7 The matter was put as follows by Barrett J in Wentworth v Rogers [2002] NSWSC 921: "7. On the application for re-opening of the hearing, senior counsel for the second plaintiff referred to a number of the High Court decisions on re-opening after judgment but before entry of orders. The first plaintiff, who again appeared in person, made reference to a great number of authorities. While cases on this subject as it affects appellate courts are no doubt instructive, the fact remains that treatment of the issue at that level is affected by considerations which do not apply when it is sought to have proceedings determined by a single judge at first instance re-opened after judgment. In R v Nitin Giri (No 2) [2001] NSWCCA 234, Heydon JA distilled from High Court authority ( Wentworth v Woollahra Municipal Council (No 2) (1982) 149 CLR 672, State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29, Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300) the three issues central to the re-opening jurisdiction which the High Court regarded as exercisable by appellate courts in only "extremely rare" or "quite exceptional" circumstances and then only with "great caution": • first, whether the appellant has shown that, without accident or fault on the appellant's part, he or she has not been heard on a relevant matter; • second, whether the appellant has shown an error in the court's reasoning because of a misapprehension of the facts; and • third, whether the appellant has shown an error in the court's reasoning because of some misapprehension of the relevant law. [See also, in particular, Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256 and De L v Director-General, New South Wales Department of Community Services (No 2) (1997) 190 CLR 207.)" 8 Justice Barrett then proceeded to cite portions of a judgment delivered by Justice Santow (Wentworth v Wentworth [1999] NSWSC 638) in the course of which excerpts Justice Santow had given the following examples of where review had been allowed in the case of a judgment or order of a court of first instance. "(i) Where the court's reasons for judgment inadvertently did not deal with important matters argued by counsel at the hearing where an appeal to correct this would involve inevitable delay; Twenty-First Australia Inc v Shade (NSWSC, Young J, 31 July 1998, unreported) in Butterworths Unreported Judgments at 18. (ii) Where the court's reasons involve 'infelicity of expression and ambiguous statements' which may be corrected by the trial judge upon the bringing in of short minutes; Fexuto Pty Ltd v Bosnjak Holdings Pty Ltd (No 2) (1998) 29 ACSR 290." 9 Justice Barrett went on to cite the following paragraph from Justice Santow: "While illustrations of where the courts have or have not re-opened a judgment not yet entered are of value, they can be subsumed more generally in what Mason CJ said in Autodesk (at 301-302). He delimited the scope of the discretion by explaining that "the exceptional step" of reviewing an issue might occur where a court has good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant's neglect or default." 10 Justice Barrett then concluded as follows: "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." 11 It is of course important to recognise when referring to the approach taken by Mason CJ in Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 that the Court before whom the present motion is put is a Court of first instance and not the High Court of Australia. The circumstances in which an issue might be reviewed as described by Mason CJ in Autodesk v Dyason were as follows: "Where a court has good reason to consider that it had proceeded on a misapprehension as to the facts or the law and where the misapprehension cannot be attributed solely to the applicant's neglect or default." 12 In Twenty-First Australia Inc. v Shade & Anor (1998) NSWSC 325, Young J, [now Young CJ in Eq], had occasion to refer to the significance of the Autodesk decision being one of the High Court. His Honour in the appendix to the judgment said as follows: "Mr Russell, for the defendant, says that I should not permit Mr Robinson to raise these matters. He says, and his submission is based on the decision of the High Court in Autodesk Inc v Dyson [No 2] (1993) 176 CLR 300, that leave to reopen a matter after reasons for judgment have been handed down, even though there has been no formal entry of the judgment, is something to be given only in exceptional circumstances. The first thing to note is the decision relied on is a decision of the High Court. The High Court has for many years adopted the policy that not even submissions made in writing the day after the court's oral hearing will be take into account, and that counsel either says what needs to be said on the day or not at all. The practice in the Equity Division of this court has not been so severe. Indeed, it quite frequently happens in this Court that counsel uninvited put in further written submissions before the judge delivers judgment. Leave, as far as I know, has never been sought on these occasions, though if counsel does not communicate with the Judge's Associate, counsel runs the risk judgment will be delivered before the written submissions are seen. Indeed, this is a tactic often used by counsel to remind the judge that he has been sitting on the judgment too long. Further, the procedure in the Equity Division has been that because counsel are in court to assist the judge, rather than with the prime purpose of winning the case, a freer attitude is taken to reopening decisions than may be the case elsewhere. Accordingly, although the Autodesk case does set out some general principles, it is important that one apply those principles in the facts and circumstances of the procedure of each particular court." 13 In Brimaud v Honeysett Instant Print Pty Limited, unreported, McLelland J, Supreme Court of New South Wales, 19 September 1988, his Honour noted that the private injustice and public undesirability of permitting the relitigation of matters already litigated is recognised in a number of principles of law, notably the rules relating to res judicata and issue estoppel, vexation and abuse of process, and the restrictive provisions governing the adducing of further evidence on the hearing of an appeal. While his Honour accepted that interlocutory orders create no res judicata or estoppel and that the court retains jurisdiction to set aside, vary or discharge an interlocutory order, up until the time of the final disposition of the proceedings, his Honour was of the view that the general rationale of those principles applies even in the case of interlocutory orders. In his Honour's words, "It would be conducive to great injustice and enormous waste of judicial time and resources if there were no limit on the power of the party to have any interlocutory application or order re-litigated at will" (at page 5). His Honour went on to hold: "In the present case I am dealing with an interlocutory order of a substantive nature made after a contested hearing in contemplation that it would operate in the final disposition of the proceedings. In such a case the ordinary rule of practice is that an application to set aside, vary or discharge the order must be founded on a material changes of circumstances since the original application was heard or the discovery of new material which could not reasonably have been put before the court on the hearing of the original application." [at page 5] 14 His Honour's judgment in Brimaud was cited with approval by the New South Wales Court of Appeal in Amalgamated Television Services Pty Limited v Marsden [1999] NSWCA 313 at paragraph 38; and by a Full Court of the Federal Court of Australia in Arthur Anderson & Co (a firm) v GPA Group PLC & Ors, unreported, Spender, Drummond and Sundberg JJ, Federal Court of Australia, November 1998, at page 2; see also Adam P Brown Male Fashions Pty Ltd v Phillip Morris Inc (1981) 148 CLR 170 at 178 per Gibbs CJ. Aickin, Wilson and Brennan JJ; and Sydney Airport Corp Limited v Baulderstone Hornibrook Engineering Pty Limited [2003] NSWSC 486 at paragraphs [30]-[31] per Einstein J. 15 Clearly, the approach taken by his Honour in Brimaud was apt in the circumstances in relation to an interlocutory hearing of a common type in the Equity Division where the attempt is to procure a status quo or set of orders which will regulate the parties' conduct until final disposition of the proceedings. The present case is not in precisely that position at all. Indeed, the circumstances in terms of the present position of these proceedings, where the first tranche following the Part 31 order has been heard, seems to be a via media somewhere in between. It is clear that no orders have yet been made following the first tranche judgment. It is also clear that a reserved judgment, dealing with many matters of fact and principle, credit and other issues, has been handed down. 16 To my mind the proper approach to the defendants' application presently is by reference to the very principles outlined by Barrett J in the judgment to which I have referred. The basal proposition is that a single judge whose decision is susceptible to appeal through readily available channels, with or without preliminary need for leave to appeal, should allow reopening after judgment where it is obvious to that judge that the decision has been 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 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. 17 At a more general level the authorities establish that in considering an application for leave to reopen where it is sometimes put that new or additional evidence is available, the guiding principle would be whether the interests of justice are better served by allowing or rejecting the application. As the transcript will record, the current position presently before the court is that there is no live application by the defendants for leave to reopen in order to be in a position to adduce new or additional evidence. 18 The introduction of the Supreme Court Rules, Part 1 rule 3, requiring the court to give effect to the overriding purpose of the rules, namely, to facilitate the just, quick and cheap resolution of the real issues in the proceedings, must also very importantly be kept in mind in the entertaining of applications such as the instant application. The defendants' contentions 19 The defendants have put forward detailed written submissions covering 13 pages in support of the application. It is not necessary to recite all of those submissions. It seems to me appropriate to mark the submissions for identification D1 and I proceed accordingly. 20 Whilst there are a number of matters sought to be raised by the defendants, to my mind none of those matters are of substance. Each of them may, of course, be appropriate to be pressed on any appeal from a first tranche judgment, the Court of Appeal being the relevant forum in that regard. Placing the application into context 21 It is convenient before turning to the formal position in relation to the proceedings to examine the context in which the reserve judgment was delivered with some care. I proceed accordingly. 22 The first tranche of the trial in March 2004 was the appropriate time, as it seems to me, for all issues bar the quantification of the plaintiff's damages to be litigated. 23 The March judgment determined all issues except for quantification and the plaintiff's estoppel claim [which the Court held did not need to be determined in the light of the other findings]. That this is the case is evidenced, as the plaintiffs point out, by the orders of the Court made consensually on 29 November 2002: "(a) 4. Pursuant to Part 31 Rule 2, the quantification of the plaintiff's damages, if any, be determined separately and after all other issues in these proceedings. 12. Note that the plaintiff accepts that during the hearing it must demonstrate that it has suffered some damage before there is any necessity for the determination of the quantification of its damages." Findings on prima facie case 24 The Court made the following findings on the question of causation and on the establishment of a prima facie case of loss and damage. "(a) that the quantification of the plaintiff's damages, if any, was to be determined separately and after all other issues in the proceedings , and that the hearing with which the Judgment is concerned proceeded accordingly (paragraphs [3] and [248])(emphasis added); (b) that the facts clearly establish breaches of the express and implied terms of the contract contained within the Letter and that the plaintiff has established a prima facie case of loss and damage, the current hearing not dealing with the issue otherwise than in principle (paragraphs [246-7]); (c) that in the absence of the provision of the Letter, trading would not have been permitted and that the company would have gone into administration (paragraph [309]); (d) that the representation contained within the Letter materially contributed to the loss and damage sustained by the Australian trading company and that in relation to the trade practices cause of action the Plaintiff has also established a prima facie case of loss and damage (paragraphs [312-3])." 25 As the plaintiff has submitted, the first tranche of the trial was the appropriate opportunity to adduce evidence on all issues bar the quantum of the plaintiff's damages. The purpose of a split trial pursuant to Part 31 of the rules is to separate the issues in the proceedings and not, as it seems to me, to afford the unsuccessful party an opportunity to attempt to persuade the judge to change his or her view on issues already determined. The burden of the defendants' submissions 26 The central proposition of the defendants' submissions is the contention that it is appropriate to review and revise the findings at paragraphs 307 to 313 having regard to what is put as a need for "clarity of the issues" before the second stage of the hearing commences. The contention is that the ultimate finding in paragraph 313 that the plaintiff has established a prima facie case of loss and damage in relation to the trade practices cause of action should be withdrawn. 27 Although there are a number of submissions which have been advanced, to my mind the only critical matter which is germane for treatment by this Court presently [as opposed to other matters which may be the subject of the invocation of appellate rights following completion of the whole of the first instance proceedings] concerns the claim that the reserve judgment failed to include a finding as to the date when the plaintiff would have gone into administration. Paragraphs 307 to 309 28 The judgment as a whole requires to be carefully read. Paragraphs 307 to 309 were as follows: "307 The finding is that the representations were, in the circumstances, a real inducement to the Australian trading company continuing to trade. The plaintiff has established on the balance of probabilities that, in reliance upon the Letter, the unqualified audit for the year ended 31 December 2000 came forward, the plaintiff's directors provided the relevant directors' declaration and opinion and the Australian trading company continued to trade and incur debts in circumstances where its financial position was such that, absent the Letter, the company would have ceased trading. 308 Mr McIntyre's evidence was that the existence of the Letter was crucial to the plaintiff's ability to be able to pay its debts as and when they fell due [paragraph 22, Exhibit P5]. Further, if he had been aware that the Swiss parent did not intend to honour the Letter, he would have considered that the plaintiff was trading insolvent and would have called a board meeting and taken steps to appoint a voluntary administrator [paragraph 16, Exhibit P6]. 309. The case which is established is that , in the absence of the provision of the Letter, trading would not have been permitted . The Court's finding is that without that document the company would have gone into administration." 29 Mr Pembroke of senior counsel had made the point some time ago in one of the directions hearings [27 July 2004] leading up to the hearing date which had been fixed for determination of all of the remaining issues - "Now, your Honour, one of the important points is that the plaintiff did not specify, and your Honour [was not] asked to find, when the plaintiff would have ceased trading. Would it have ceased trading in February 2001 or on 2 April when the accounts were signed or at some later date? … So what is left unanswered are three questions. The first is: Notwithstanding your Honour's prima facie view, would the absence of the letter have in truth made any difference to the plaintiff, bearing in mind that there were three directors of this company, not one, and also bearing in mind that the company was wholly owned by the Swiss company, and perhaps thirdly bearing in mind that all that Mr McIntyre ever said was that he would discuss the matter and would have taken steps with all the limitations that that involves? The second issue which we think arises is: In the absence of the letter, if your Honour maintains the prima facie view that the company would have gone into administration, you would have to decide when that would have occurred, and the date of course which your Honour finally chooses will have a significant impact on the quantification of the damages. If it is February 2001 we are talking about a lot more money than if it were August 2001 or some date in between. The third issue which arises is: If your Honour maintains the prima facie view that you have expressed and if you hold that a certain date was the date after which the company would have gone into administration, what is the amount of the losses incurred by the company trading after that date ?" 30 The primary issues dealt with in the judgment were the issue of intent to contract and the issue of contractual construction. The construction issue was shortly summarised at 15 as follows: [15] The Australian trading company's primary claim is that, upon its proper construction, the Letter amounted to an offer by the Swiss parent to the Australian trading company, or alternatively an offer by the Swiss parent to the Australian holding company as agent for its controlled entities, which offer achieved contractual effect when it was accepted by the Australian trading company. 31 The judgment from [paragraph 208] travels throughout Court's findings in terms of the circumstances examined objectively as having thrown up an intent to enter legal relations. 32 As already observed, clearly enough the reserved judgment found [at 247] that the plaintiff had established a prima facie case of loss and damage, the first tranche hearing not dealing with the issue otherwise than in principle, and found [at 313] that in relation to the Trade Practices Act cause of action, the plaintiff had also established a prima facie case of loss and damage. 33 The following paragraphs are to be found in the judgment. [89] Mr Goggi gave evidence, which is accepted as reliable, that if it had been suggested to him that the Swiss parent did not intend to provide financial assistance to GGA or that the officers of the Swiss parent considered that they were under no obligation to honour the terms of the Letter, he would have been extremely alarmed by this suggestion as GGA would have been trading whilst insolvent. Also, he did not view the provision of the Letter as merely a procedural exercise to permit PWC to sign-off on GGA's statutory accounts. [Exhibit P1] [90] Mr McIntyre gave evidence, which is accepted as reliable, that he was never told by any of the officers of the Swiss parent that they did not consider themselves bound by the Letter. His evidence was that, if he had been aware that the Swiss parent did not intent to honour the Letter, he would have called a board meeting of GGA to discuss the matter with Mr Engebretsen and Mr Larsen and would have placed the company in to voluntary administration . [Exhibit P6 paragraphs 17 and 16] [157] I accept as reliable the entirety of the evidence given by Mr McIntyre in each of his statements: · where dealing with his reliance upon the Letter in signing the directors' declaration, which to his mind, operated as a fully enforceable inter-company guarantee; · that if he had been aware that the Swiss parent did not intend to honour that guarantee, he would not have signed the declaration under any circumstances; · that he would not have signed the declaration had the Letter not been provided at all; · that had he been aware that the Swiss parent did not intend to honour the Letter he would have considered that the Australian trading company was "trading insolvent" and would have called a board meeting to discuss the position with Mr Engebretsen and Mr Larsen and taken steps to appoint a voluntary administrator and would not have permitted the Australian trading company to continue to trade and incur liabilities. [158] These evidentiary findings take into account Mr McIntyre's evidence, under cross-examination, as to his state of mind as at July 2001. This evidence was that he made the assumption that the Letter was in place, it being so obvious that "it went without saying": these being the reasons why, albeit perhaps being 'commercially naïve', he did not put to the persons with whom he was dealing in Zurich, that the Swiss parent was contractually obliged to assist the Australian trading company. [159] These findings are corroborated by Mr McIntyre's evidence that in signing the solvency acknowledgment [part of the 17 August 2001 amended Westpac facility agreement], he had in mind that the Letter was in place. [160] Nor does anything in the other conduct of Mr McIntyre following the signing of the Letter remove the basis for the above finding. His own understanding as to the form of any further support from the Swiss parent, in terms of formal facilities being negotiated and the like and then documented in a legally binding form, does not erode or displace or replace his sworn reliance [earlier referred to in this judgment] upon the Letter having been in place as foundational to his preparedness to sign the directors' declaration and to permit the Australian trading company to continue to trade and to incur debts. 34 Neither these paragraphs nor paragraphs 307 to 309 expressly state a finding as to the date on which the Australian trading company would have had a voluntary administrator appointed. 35 Mr Pembroke's submission is in short that notwithstanding the matters carefully dealt with in the judgment, the presence or absence of the letter cannot be said on the Court's findings to be determinative of the date upon which the company would have been placed into administration. 36 The submission is rejected. It flies in the face of the findings, which can only be read as clearly holding that had the Letter not been provided at all the Australian trading company would have been placed into liquidation. The words "absent the letter the company would have ceased trading" [paragraph 307] could not be clearer. 37 The so-called timing issue is not of real moment. The Letter was signed on 16 February 2001. The judgment is to be read as including an implicit finding that had that letter not been signed on or about that date the company would, on or about that date [that is to say on or about or within a few days of that date] had been placed into administration. For further case management purposes and as so much emphasis has been placed upon the suggested need for precision with respect to identification of the precise date, the parties should proceed by regarding 16 February 2001 – [that is to say on or about or within a few days of 16 February 2001] as the relevant date. 38 This is not an occasion for the Court at first instance to examine suggestions of issues which it is contended that the plaintiff did not address in its presentation of the first tranche case; nor is it an occasion for the Court at first instance to examine parameters of what the defendants now contend to have been their forensic entitlement to call or not call first tranche evidence in terms of their submission that the plaintiff's evidence at the hearing was insufficient to permit the Court to have reached its findings set out in the reserved judgment. Those are matters for the Court of Appeal on an appeal from the final judgment disposing of the proceedings at first instance. It would be wrong and destructive of the Court's procedures for refinement and clarification of issues prior to trial if the parties were now able to re-argue issues already litigated during the first tranche outside of being in a position to establish the proposition summarised by Barrett J in the judgment to which I have referred. 39 It is unnecessary to further treat with any of the defendants' detailed submissions. To treat in detail with those matters may well cause the Court to become involved in a questioning of matters fundamental in terms of going to the heart of the matters dealt with in the first tranche hearing and in the first tranche judgment. The procedural position 40 In terms of the strict procedural position, I do not regard what I have said in paragraph 37 as procedurally requiring a reopening of the judgment in order to vary the judgment; nor is there occasion to set the judgment aside; nor is there occasion to reopen the first tranche hearing. I reject the application to review and vary the reasons for judgment. No good reason has been put forward showing that the Court proceeded on a misapprehension as to the facts or the law. No reason of substance substantiates any suggested miscarriage of the decision the subject of the reserved judgment. Whilst the categories of the situation where courts will grant leave to reopen a judgment are not closed, the attack of the defendants does not qualify for an exercise of the Court's discretion to permit any such reopening. 41 If I be wrong in terms of the strict procedural position and had it been necessary to formally grant leave to the parties to reopen any part of the first tranche hearing, I would have only granted leave permitting the parties to address on the question now dealt with in paragraph 37 and would not have permitted the parties to adduce any further evidence than that which had been adduced during the first tranche hearing. Essentially, the very same submissions as would then have required to be examined have now been placed before the Court and have been fully examined. I have approached the matter in precisely the same way as is set out in paragraph 37, so that the differing procedural position would have made no difference to the result. 42 For those reasons the notice of motion filed today is dismissed. I certify that paragraphs 1 - 42 are a true copy of the reasons for judgment herein of the Hon. Justice Einstein given on 18 August 2004ex tempore and revised 24 August 2004 ___________________ Susan Piggott Associate 24 August 2004 Last Modified: 09/02/2004 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.