Uniform Civil Procedure Rules 1999 (UCPR Qld) - Digest
back to table of provisionsChapter 16 – Orders
- [658] General
- [659] Judgment
- [660] Order
- [661] Filing an order
- [662] Certified duplicate of filed order
- [663] Reasons for order
- [664] Delivery of reserved decision by a different judicial officer
- [665] Time for compliance
- [666] Consent orders
- [667] Setting aside
- [668] Matters arising after order
- [669] Appointment to settle
[658] General go to top
The rule confers ample power on the Court to give an appropriate judgment, notwithstanding deficiencies in the form of the proceedings: Warwick v Tankey [2004] QSC 274, [19] (Chesterman J).
The Court may make an order under r 658 at any stage in the proceeding for the summary disposal of a proceeding, including a proceeding commenced by application. This power is in addition to the court’s inherent jurisdiction to summarily dispose of proceedings: Higgins v Higgins [2005] 2 Qd R 502; [2005] QSC 110, [15] (White J), citing General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.
The Court’s jurisdiction to dismiss summarily an application pursuant to r 658 should be exercised with exceptional caution: Higgins v Higgins [2005] 2 Qd R 502; [2005] QSC 110, [16] (White J), citing General Steel Industries Inc. v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129-130 (Barwick CJ); see also Catelan v Herceg [2012] QSC 320, (discretion to be exercised with “considerable care”), [15] (de Jersey CJ).
Under r 658(2) a judge may grant relief beyond that specifically claimed where appropriate: Coppo v Banalasta Oil Plantation Ltd; Borg Pawski [2005] QCA 96, [30] (McMurdo P, Jerrard JA agreeing).
The terms of r 658 recognise that whether an order is made or a judgment is delivered will depend upon the nature of the case or proceeding which leads to the making of that order or the giving of that judgment: Mitchell v Pacific Dawn Pty Ltd [2003] QSC 179, [22] (Ambrose J).
Examples of application
In Amos v National Australia Bank Ltd [2001] QSC 31, Ambrose J (at [1], [14], [29]) relied upon the rule to give judgment in the terms of a consent order attached to a settlement agreement. See also The Trust Company (PTAL) Limited v Amos [2018] QSC 92 (Brown J) at [101] and LPD Holdings (Aust) Pty Ltd v Russells [2017] QSC 45.
In Warwick v Tankey [2004] QSC 274, Chesterman J (at [19]) relied upon the rule to give a money judgment to the applicant as being appropriate to do justice between the parties, even though the applicant had only sought, by its originating application, injunctive relief.
In Coppo v Banalasta Oil Plantation Ltd; Borg Pawski [2005] QCA 96, the Court of Appeal held that the appellants were entitled to damages for amounts outstanding under loan agreements, even though they had sought at trial declarations setting aside the loan agreements: [30] (McMurdo P), [32] (Jerrard JA), [83] (Chesterman J).
In Alder v Khoo [2010] QCA 360, the Court of Appeal held that the primary judge did not err in making an order sought by the first respondent, even though the first respondent had not itself sought that relief by way of an originating application and the original proceeding was by way of the appellant’s application: [27]-[28] (Chesterman JA, Muir JA and White JA agreeing).
[659] Judgment go to top
In Mitchell v Pacific Dawn Pty Ltd [2003] QSC 179, Ambrose J held that the determination of questions ordered to be delivered by way of interlocutory proceeding constituted a judgment within the meaning of r 659. The answers to the questions posed in that case finally determined a significant, if not the principal, factual issue raised by the defendant in defence of the plaintiff's claim against it: [18]-[19], [21].
Once final relief is given pursuant to r 659, there is no longer an issue before the Court for which an order may be made in reliance upon the Court’s inherent jurisdiction: Perpetual Trustees Qld Ltd v Thompson [2012] 2 Qd R 266, [24] (Martin J).
[660] Order go to top
The effect of r 600 is that the appeal period from an order commences to run from the date the order is pronounced in court: Kilvington v State of Queensland [2012] QCA 174, [2] (Holmes JA, Fryberg J and Martin J agreeing).
[661] Filing an order go to top
It appears that it will be unnecessary to obtain leave for the purpose of r 661(4)(b), provided that the order sought to be appealed is filed prior to the determination of the appeal: Osachy v O’Sachy [2013] QCA 212, [10] (Gotterson JA, de Jersey CJ and Mullins J agreeing); Hayes v Surfers Paradise Rock and Roll Café Pty Ltd [2011] 1 Qd R 346; [2010] QCA 48, [16] (Fraser JA, McMurdo P and Chesterman JA agreeing).
Where appropriate, leave to appeal can be granted to a party to an appeal pursuant to r 661(4)(b) nunc pro tunc, even though no application was properly made for leave for the purpose of the rule: Tep v ATS Australasian Technical Services Pty Ltd [2015] 2 Qd R 234; [2013] QCA 180, [4] (Holmes JA, Gotterson JA and Douglas J agreeing).
[662] Certified duplicate of filed order go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[663] Reasons for order go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[664] Delivery of reserved decision by a different judicial officer go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.
[665] Time for compliance go to top
Rule 665(3) requires explicit notification in the order that disobedience will expose the recipient of the order to proceedings for contempt. The purpose of the rule is not merely to provide the party who has the benefit of the order with a basis for inferring deliberate disobedience from non-compliance, though it may incidentally have that effect. Rule 665(3) is also apt to ensure that the recipient of the order is given fair notice that non-compliance may give rise to proceedings for contempt so that the recipient may so conduct himself or herself as to avoid or minimise that peril: Camm v ASI Development Company Pty Ltd [2007] QCA 317, pp.10-11 (Keane JA, Muir JA and Douglas J agreeing).
In the context of civil contempt proceedings, the Court will generally require strict compliance with the prescribed procedure, including the requirement in r 665(3): Camm v ASI Development Company Pty Ltd [2007] QCA 317, p.10 (Court of Appeal, per Keane JA, Muir JA and Douglas J agreeing), citing Chiltern District Council v Keane [1985] 1 WLR 619.
The Court’s broad powers to make orders inconsistent with the procedural rules and/or in the face of non-compliance with the rules (see rr 367 and 371 read with r 5) may allow it to hear a contempt application notwithstanding the absence of a notice as required by r 665: Costello v Courtney [2001] 1 Qd R 481; [2000] QSC 67, [12] (Wilson J), citing Jolly v Hull (Court of Appeal England, 21 January 2000); Davy International Ltd v Tazzyman [1997] 1 WLR 1256.
Where an order is subject to a condition, the time for the fulfilment of which is specified in the order, the order does not require the person to perform the act specified in the condition: Vicary v State of Queensland [2009] QSC 284, [70] (P Lyons J), citing Asia Pacific Glass Pty Ltd v Sindea Trading Co Pty Ltd (No 2) (2004) 47 ASCR 737, [13].
Rule 665(3) does not apply to an undertaking incorporated in an order of the court (although the position may be different for undertakings for the payment of money due to r 900): O’Connor v Hough [2016] QSC 4, [20] (Burns J).
[666] Consent orders go to top
The Deputy Registrar has jurisdiction under r 666 to make an order to which all parties to a proceeding consent, even in respect of matters for which the Deputy Registrar would not otherwise have jurisdiction: Harris v Commissioner of Taxation [2006] 2 Qd R 445; [2006] QSC 108, [15] - [19] (Mackenzie J).
[667] Setting aside go to top
Nature of the discretion
Neither r 667 nor r 668 are intended to replace the inherent jurisdiction in the Court to recall a judgment which has been pronounced against a person who, without fault on the part of that person, had not had the opportunity to be heard as to why that judgment should not be pronounced: Frith v Schubert [2010] QSC 444, [10], [13] (Lyons J), citing Autodesk Inc v Dyason (No 2) (1983) 176 CLR 300.
Although a judgment is normally final, there exists a power under r 667 to set it aside if it was procured by fraud, or under r 668 where facts are discovered after the trial: Rodgers v ANZ Banking Group Ltd [2005] QSC 365, [11] (Dutney J).
Rule 667(1) confers a general discretion on the Court to vary or set aside an order. The exercise of that discretion cannot be confined by the conditions set out in rr 667(2) and 668(1): Frith v Schubert [2010] QSC 444, [15] (Lyons J).
Considerations relating to the public interest in the finality of litigation are relevant to the discretion conferred by r 667(1): Frith v Schubert [2010] QSC 444, [16] (Lyons J).
Generally, the recourse available to a party who is dissatisfied with an order made by the Trial Division is by way of appeal to the Court of Appeal, rather than by a further application in the Trial Division. Rules 667 and 668 afford a limited scope for a further application to the Trial Division: Lu v Petrou [2011] QCA 226, [41]-[42] (Margaret Wilson AJA, Chesterman JA and Fraser JA agreeing).
Mistake
Where a mistake is made in the reasons for judgment before the formal order is taken out, the court can correct the reasons for judgment and order, under rr 388, 667(2)(d) and the court’s inherent power to recall a judgment before its formal entry where the interests of justice so require: Qld Pork Pty Ltd v Lott [2003] QCA 271, [2] (McMurdo P), citing Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300.
Order made in the absence of a party – r 667(2)(a)
Where an order is made in the absence of a party, assuming there is a real question to be tried, justice requires that the order, having been made in breach of a fundamental principle of natural justice, should be set aside and that the matters should be reconsidered on its merits: Amos v Wiltshire [2014] QCA 218, [12] (Muir J, North and Flanagan JJ concurring), citing Taylor v Taylor (1979) 143 CLR 1.
The fact that a party had been given notice that the matter was to be heard would not be decisive against the existence of a power under r 667(2)(a) to set aside an order. It would be a discretionary matter going to the question whether the power should be exercised: Sproule v Long [2001] 2 Qd R 335; [2000] QSC 232, [6]-[8] (Mackenzie J).
The fact that the discretion arises under r 667(2) does not mean that it will automatically be exercised. It is not exercised just for the asking. In a case where the party’s solicitor was given express notice of the date of the hearing, the very least that one would expect to see on an application by the party asking the court to exercise a discretion to set aside an order is an explanation for the non-appearance which resulted in the order being made in their absence: OPI Pacific Finance Ltd v Reef Cove Resort Ltd [2010] QSC 163, [23] (Daubney J).
Order obtained by fraud
It has long been held that a complete judgment may be impeached by a fresh action on the ground that the judgment is tainted by fraud. There needs to be more than a mere suspicion of fraud. The fresh action will be regarded as an abuse of process of the Court unless the plaintiff can establish that he or she has a reasonable prospect of success based on facts discovered since the judgment sought to be impeached: Rodgers v ANZ Banking Group Ltd [2005] QSC 365, [13] (Dutney J), citing Jonesco v Beard [1930] AC 298.
The legal principles relating to proceedings to have a judgment set aside under r 667 on the ground it was obtained by fraud are summarised in Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 at 538-539:
In summary, he or she must establish that the case is based on newly discovered facts; that the facts are material and such as to make it reasonably probable that the case will succeed; that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment: Wentworth v Rogers (N. 5) (1986) 6 NSWLR 534 at 539 (Kirby P).
For examples of the application of these principles in the context of r 667, see: Rodgers v ANZ Banking Group Ltd [2005] QSC 365, [14] (Dutney J) and AMA v CDK [2009] QSC 287, [22] (Applegarth J).
Delay in making the application
It is contemplated by r 667 that in the ordinary course slips in court orders should be promptly addressed in the court that made the orders: Hayes v Surfers Paradise Rock and Roll Café Pty Ltd [2011] 1 Qd R 346; [2010] QCA 48, [17] (Fraser JA, McMurdo P and Chesterman JA agreeing).
Delay will not ordinarily be a bar to setting aside an order where a person affected by it was not given a reasonable opportunity of appearing and presenting his case: Greig v Stramit Corporation Pty Ltd [2004] 2 Qd R 17, [47] (Williams JA), citing Taylor v Taylor (1979) 143 CLR 1; see also Averano v Mbuzi [2007] QCA 174, [12] (McMurdo P, Holmes JA and Fryberg J).
Where it is necessary to make an application under r 667 to set aside an order, an application made under sub-rule (1) is required to be made before the earlier of the filing of the order or the end of seven days after the making of the order. However, that time limit is one which can be extended after it has expired: Bechara v Sotrip Pty Ltd (In Liquidation) (No 2) [2013] QSC 160, [17] (Jackson J), citing McIntosh & Anor as Trustees of the Estate of Camm (A Bankrupt) v Linke Nominees Pty Ltd [2008] QCA 410, [8].
Rule 667(2) confers a discretionary power to set aside an order at any time if one or more of the circumstances listed in that rule are established. The discretion to exercise the power may be influenced by the applicant’s delay in bringing the application. A delay which prejudices the interests of a party, for example, a party which has acted to its detriment on the basis of the order by taking steps to enforce it and incurred costs in doing so, is a matter which should be taken into account in the discretion to extend time under r 667. The adequacy or otherwise of the applicant’s explanation for the delay is another factor: AMA v CDK [2009] QSC 287, [15] (Applegarth J).
Reservation – “Subject to further order”
An order expressed to be “subject to further order” is a reservation commonly used, and used in a way which ordinarily has the meaning that another order may qualify or alter the operation of the order to which it applies. There is no need to make an application under r 667 to set aside or vary an order when such order is expressed to be “subject to further order”: Bechara v Sotrip Pty Ltd (In Liquidation) (No 2) [2013] QSC 160, [16] (Jackson J).
Interaction with Rule 7
Rule 667(2), by listing a number of circumstances in which no time limit applies, does not impinge on the extent of the power conferred by r 7(1), although it may be relevant to the exercise of that power: McIntosh v Linke Nominees Pty Ltd [2010] 1 Qd R 152, [9] (Muir JA, Cullinane & Douglas JJ agreeing).
[668] Matters arising after order go to top
Rule 668(1)(a) does not apply to a claim to relief from a judgment or order that is challenged as erroneous (in which case, the proper remedy is to seek relief by way of appeal). Rule 668(1)(a) only permits a party that accepts a judgment or order as being correct at the time it was made, to seek to rely upon facts arising after the judgment or order for relief in accordance with the terms of the rule: Rockett v The Proprietors – “The Sands” Building Units Plan No. 82 [2002] 1 Qd R 307, [15] (McPherson JA, Williams JA and Wilson J agreeing).
Where a party seeks leave of the Court under r 668 in reliance on fresh evidence, it is appropriate to have regard to the principles applicable when a party appeals and relies on fresh evidence. Those principles require the court to be satisfied that the matter newly discovered was relevant and material, such as might probably have occasioned a different determination, and that it was not discoverable by due diligence before the trial: IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428, [15]-[18] (Jerrard JA), citing Harrison v Schipp (2002) 54 NSWLR 612, 617 [14] (Handley JA).
An obvious circumstance in which the discretion given by r 668 would be exercised is when new facts arise or are discovered after an interlocutory order is made, so that the order would not have been made had those facts then been known or existed: IVI Pty Ltd v Baycrown Pty Ltd [2007] 1 Qd R 428, [13] (Jerrard JA); see also AMA v CDK [2009] QSC 287, [36] (Applegarth J).
While it is appropriate to apply an expansive view of the words “entitling” or “entitled” in r 668(1) as extending to cases in which relief depends on a favourable exercise of discretion, the circumstances in which courts will permit a final order to be set aside are well-established and the exercise of the discretion under r 668 is affected by the principle protecting the finality of judgments: AMA v CDK [2009] QSC 287, [36] (Applegarth J).
What amounts to new facts
Judicial reasons for decision are not new “facts”, for the purpose of r 668(1): Rockett v The Proprietors – “The Sands” Building Units Plan No. 82 [2002] 1 Qd R 307, [8] (McPherson JA, Williams JA and Wilson J agreeing).
The striking out of a statement of claim in a proceeding is capable of being characterized as a “fact” for the purpose of r 668(1)(a), either by way of the act of making the order itself or by the operation and effect of that order: Paradise Grove Pty Ltd v Stubberfield [2002] 2 Qd R 612 [20] (Wilson J).
Close attention is required to the “facts” that are alleged to attract r 668, and the basis upon which those facts are said to entitle the person against whom the order is made to be relieved from it; or, if they had been discovered in time, would have entitled the person against whom the order is made to an order or decision in the person’s favour or to a different order. The words “entitle” and “entitled” in O 45 r 1 RSC were held by the Court of Appeal to be “capable of referring to instances in which the person seeking relief has to depend on a favourable exercise of discretion and claims no absolute right to relief”. The same interpretation should be given to the words “entitling” and “entitled” in r 668: Fairmont Suites and Hotels Pty Ltd v Duck Holes Creek Investments Pty Ltd [2009] QSC 98, [8] (Applegarth J), citing Rankin v Agen Biomedical Ltd [1999] 2 Qd R 435, [9].
Rule 668(1)(b) is not satisfied if facts were known to a party at the time the order was made, but not presented to a court: Frith v Schubert [2010] QSC 444, [23] (Lyons J).
Consent orders
Under the UCPR, there is no procedural bar, as a matter of law, against bringing an application to set aside a consent judgment or order in the original proceeding: Wilson Four Pty Ltd v Sihota [2014] QSC 257, [69] (Jackson J).
Courts have only limited powers to set aside their orders, and and the power to do so is even more restricted where the order in question has been made by consent of the parties to it, as a result of a compromise: Rockett v The Proprietors – “The Sands” Building Units Plan No. 82 [2002] 1 Qd R 307, [10] (McPherson JA, Williams JA and Wilson J agreeing).
The question whether a compromise embodied in a consent order is to be set aside “depends on the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it”: Rockett v The Proprietors – “The Sands” Building Units Plan No. 82 [2002] 1 Qd R 307, [10] (McPherson JA, Williams JA and Wilson J agreeing), citing Harvey v Phillips (1956) 95 CLR 235, 243-244; see also Chavez v Moreton Bay Regional Council [2010] 2 Qd R 299; [2009] QCA 398 [31] (Keane JA, Holmes JA and McMeekin J agreeing).
Self-executing orders
The Court has jurisdiction under r 7 or r 668 to relieve against the consequences of a self-executing order. The same factors inform the exercise of discretion under both rules: Mango Boulevard Pty Ltd v Spencer [2007] QSC 276, [14], [32] (Wilson J).
[669] Appointment to settle go to top
This rule does not appear to have been considered in any reasons delivered by a Queensland court.