McAdam v Robertson No. SCGRG-97-1458 Judgment No. S169

(1999) 73 SASR 360; [1999] SASC 169

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Interrogate

Catchwords

1. Practice and Procedure
2. › Reopening of judgments
3. › Power of court to reopen before perfection of orders
4. › Full Court of Supreme Court
5. › Whether power exists to reopen appeal decision
6. › Whether differently constituted Full Court may exercise power
7. › Smith v New South Wales Bar Association [1992] HCA 36
1. Practice and Procedure
2. › Reopening of judgments
3. › Discretion to reopen
4. › Whether application should be heard by original or differently constituted court
5. › Public interest in finality of litigation
6. › Whether arguable case of error sufficient to enliven jurisdiction
1. Practice and Procedure
2. › Bias
3. › Apprehended bias
4. › Whether fair-minded observer would apprehend prejudgment by judges asked to reconsider their own decision
5. › Whether errors in reasons give rise to reasonable apprehension of bias
6. › Livesey v New South Wales Bar Association [1983] HCA 17
1. Courts
2. › Supreme Court
3. › Full Court
4. › Constitution of Full Court
5. › Whether Full Court differently constituted exercises same jurisdiction
6. › Supreme Court Act 1935 (SA), s 5(1)

Quick Take

A Full Court has power to reopen its decision before the formal order is perfected where there is an arguable misapprehension of fact or law, but the application should ordinarily be made to the Full Court as originally constituted. A differently constituted Full Court has jurisdiction but should only hear the application where there is good reason, such as an arguable case of bias or where credibility findings based on demeanour are under challenge. The mere fact that judges are asked to reconsider their own decision does not give rise to apprehended bias.