LSB September 2018_Web

CASE NOTE
by the enactment of the judicature
appellate powers, instead it remains as an
exception to the principles of finality. 9
In circumstances that Players, incorrectly
applied to the SASCFC to set aside its
own perfected judgment enlivening the
equitable jurisdiction of the “original bill”,
Players were required to clearly plead and
prove fraud. This was not done. Instead
Players argued that malpractice was
enough to enliven the court’s discretionary
power to set aside the judgment. However,
the HCA found that this was and is not
sufficient basis to enliven the court’s
discretionary power to set aside the
judgment. 10
Clone also sought to impose that in the
event that an applicant seeks to set aside
a judgment for fraud, the applicant must
also show that reasonable diligence was
taken prior to the judgment to discover
the fraud. The HCA in this regard held
that reasonable diligence has never been
a requirement of an original action based
upon fraud. 11 Reasonable diligence was
only required for new trials based upon
claims of errors of law, not for original
actions. 12
Notwithstanding the above, Players
submitted that to confine the original bill
to only circumstances of fraud, would be
absurd (the HCA finding that it was not
absurd). Citing, Burrell v The Queen (2008)
238 CLR 218, 223, the HCA held the
interests of finality in litigation means that
“later correction of error is not always possible.
If it is possible, it is often difficult and timeconsuming,
and it is almost always costly.” The
HCA stated that this litigation is a good
example of the need for a strict approach
to finality.
The Players Case has since been
applied in the Supreme Court of South
Australia, 13 dismissing an attempt to reopen
an appeal based on new, fresh and
compelling evidence not available to the
applicant at the time Justice Anderson
handed down his decision in 2008. Justice
Vanstone held that it should be dismissed
in circumstances that the application
was filed in the original action before
Anderson J and the applicant’s material
does not support any allegations of actual
fraud as required in the Players Case. B
Endnotes
1 Clone Pty Ltd v Players Pty Ltd (in liquidation)
(Receivers and Managers appointed) & Ors [2018] HCA
12 [43]-[44].
2 Ibid [44].
3 Ibid [45].
4 Ibid [47].
5 See Supreme Court Act 1935 (SA) s 50.
6 [2018] HCA 12 [49].
7 Ibid [50].
8 Ibid [55], citing Patch v Ward (1867) LR 3 Ch App
203, 212-3.
9 Ibid [56].
10 Ibid [62].
11 Ibid [63]-[64].
12 Ibid [68].
13 McDonald v State of South Australia [2018] SASC 41.