Reported Decision: 69 NSWLR 575 New South Wales Court of Appeal CITATION: Forge & Ors v Australian Securities & Investments Commission [No 2] [2007] NSWCA 42 HEARING DATE(S): On the papers JUDGMENT DATE: 27 February 2007 JUDGMENT OF: Santow JA at 1; McColl JA at 1; Handley AJA at 1 DECISION: Notice of motion dismissed.; Parties to file submissions in respect of the claim for indemnity costs. CATCHWORDS: JUDGMENTS & ORDERS – orders of Court affirmed on appeal – subsisting orders those of appellate Court - RES JUDICATA – order for limited new trial – composite order – partly final partly interlocutory Adams v The Herald and Weekly Times Ltd (1934) 50 CLR 1 Gray v Dalgety & Co Ltd (1916) 21 CLR 509 CASES CITED: Hall v The Nominal Defendant (1966) 117 CLR 423 R v Marks (1981) 147 CLR 471 Webb v Hanlon (1939) 61 CLR 313 Wishart v Fraser (1941) 64 CLR 470 William Arthur Forge (First Appellant) Jozsef Endresz (Second Appellant) Dawn May Endresz (Third Appellant) PARTIES: Allan Paul Endresz (Fourth Appellant) Kamanga Holdings (Fifth Appellant) Bisoya Pty Limited (Sixth Appellant) Australian Securities & Investments Commission (Respondent) FILE NUMBER(S): CA 40854 of 2002 COUNSEL: J Glissan QC (Appellants) D R Stack (Respondent) SOLICITORS: Ken Cush & Associates (Appellants) Australian Securities & Investments Commission (Respondent) LOWER COURT JURISDICTION: Supreme Court - Equity Division LOWER COURT FILE NUMBER(S): SC 2338 of 2001 LOWER COURT JUDICIAL OFFICER: Foster AJ LOWER COURT DATE OF DECISION: 28 August 2002 LOWER COURT MEDIUM NEUTRAL CITATION: [2002] NSWSC 760 IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40854 of 2002 SANTOW JA McCOLL JA HANDLEY AJA 27 FEBRUARY 2007 WILLIAM ARTHUR FORGE & ORS v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION [No 2] CATCHWORDS JUDGMENTS & ORDERS – orders of Court affirmed on appeal – subsisting orders those of appellate Court RES JUDICATA – order for limited new trial – composite order – partly final partly interlocutory FACTS In December 2004 the Court of Appeal dismissed the defendants' appeal from declarations of civil contraventions of the Corporations Act, but remitted the issues of penalty to the Equity Division for re-hearing. In September 2006 the High Court dismissed the defendants' appeal. In December the defendants applied to the Court of Appeal for its order of December 2004 to be varied by substituting an order for a general re-hearing. HELD: The defendants' motion should be dismissed because (1) The only subsisting orders were those of the High Court: Wishart v Fraser (1941) 64 CLR 470; R v Marks (1981) 147 CLR 471, 476; (2) The orders of the Court of Appeal and High Court were composite in nature, partly final and partly interlocutory; (3) The order for a limited re-hearing was interlocutory as to the issues to be re-heard, but final as to all other issues; (4) The motion seeking a general re-trial was barred by res judicata. ORDERS The notice of motion is dismissed. Parties to file submissions in respect of the claim for indemnity costs. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40854 of 2002 SANTOW JA McCOLL JA HANDLEY AJA 27 FEBRUARY 2007 WILLIAM ARTHUR FORGE & ORS v AUSTRALIAN SECURITIES & INVESTMENTS COMMISSION [No 2] Judgment 1 THE COURT: On 21 December 2006 the claimants applied by notice of motion for orders setting aside the final judgment of Foster AJ of 28 August 2002 and directing that the matter be re-heard de novo by a judge of the Equity Division. The notice of motion comes before this Court for determination on the papers which include the written submissions of the parties. 2 On 7 December 2004 this Court gave judgment in the original appeal. The orders then made included an order that the proceedings be remitted to the Equity Division for hearing on penalty only. The orders have been entered. A further appeal by the appellants, the present claimants, to the High Court was, by majority, dismissed on 5 September 2006 (80 ALJR 1606, [2006] HCA 44). 3 Although the High Court dismissed the appeal from the judgment of this Court, the operative decision is now that of the High Court which has replaced the decision of this Court for all purposes. The orders of the High Court are now the source of any res judicata estoppels: Wishart v Fraser (1941) 64 CLR 470; R v Marks (1981) 147 CLR 471, 476. 4 The decisions of this Court and the High Court were composite in character, partly final, and partly interlocutory. The judgements were final insofar as they dismissed the appellants' challenge to the decision of Foster AJ and this Court on liability: Adams v The Herald and Weekly Times Ltd (1934) 50 CLR 1. They were interlocutory insofar as this Court ordered a re-hearing of the proceedings limited to the issue of penalty which was affirmed by the High Court: Gray v Dalgety & Co Ltd (1916) 21 CLR 509, 520; Webb v Hanlon (1939) 61 CLR 313, 321, 322, 325; Hall v The Nominal Defendant (1966) 117 CLR 423, 443. 5 The notice of motion is therefore incompetent because the operative order for a re-hearing limited to the issue of penalty is that of the High Court. In any event the notice of motion must be dismissed because the limited scope of the re-hearing is res judicata, the decisions of this Court and the High Court refusing to set aside the judgment on liability being final. 6 The notice of motion is dismissed. Parties to file submissions in respect of the claim for indemnity costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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