T.J.M. Products Pty Ltd (trading as A.R.B. Vehicle Accessories) v A. & P. Tyres Pty Ltd (trading as Steel Tyre Co.) & Ors [1987] FCA 575

T.J.M. Products Pty Ltd (trading as A.R.B. Vehicle Accessories) v A. & P. Tyres Pty Ltd (trading as Steel Tyre Co.) & Ors [1987] FCA 575

The entry and sealing of the order of 27 March 1987 by T.J.M.'s solicitors after service of a motion to vary or set aside that order was done to frustrate the jurisdiction of the Court and was an abuse of process. The Court's inherent power to prevent its process being used for a collateral advantage enabled it to set aside the entry and sealing of the order, notwithstanding procedural rules about finality of entered orders.

Parties
Applicant / Cross Respondent: T.J.M. Products Pty. Ltd. (trading as A.R.B. Vehicle Accessories); First Respondent: A. & P. Tyres Pty. Ltd. (trading as Steel Tyre Co); Second Respondent / Cross Claimant: Brigalow Park Pty. Ltd. (trading as A.R.B. Equipment S.A.; trading as A.R.B. Products); Third Respondent: Keith James Parkes; Fourth Respondent: Wilhelmina Maria Elizabeth Parkes; Fifth Respondent: Bruce Sampson; Sixth Respondent: Terence John Gavin; Seventh Respondent: Michael Gladwich; Cross Claimant: A.R.B. Engineering Pty. Ltd.
Jurisdiction
Australia
Judgment Date
23 October 1987
Procedural Posture
Notice of Motion / Post Judgment Application / Judgment on Motion to Set Aside or Vary Previous Order as to Costs
Outcome
Order entered and sealed on 8 April 1987 set aside as abuse of process; motion as to costs to be heard further; costs of motion reserved.
Legal Topics
Abuse of Process, Setting Aside Orders, Costs Orders
Civil Procedure Abuse of Process Setting Aside Orders Costs Orders

Case Brief

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Parties

T.J.M. Products Pty. Ltd. (trading as A.R.B. Vehicle Accessories)

Applicant / Cross Respondent

A. & P. Tyres Pty. Ltd. (trading as Steel Tyre Co)

First Respondent

Brigalow Park Pty. Ltd. (trading as A.R.B. Equipment S.A.; trading as A.R.B. Products)

Second Respondent / Cross Claimant

Keith James Parkes

Third Respondent

Wilhelmina Maria Elizabeth Parkes

Fourth Respondent

Bruce Sampson

Fifth Respondent

Terence John Gavin

Sixth Respondent

Michael Gladwich

Seventh Respondent

A.R.B. Engineering Pty. Ltd.

Cross Claimant

Procedural Posture

Notice of Motion / Post Judgment Application / Judgment on Motion to Set Aside or Vary Previous Order as to Costs

Legal Issues

  1. 1 Whether the Court has jurisdiction or power to set aside or vary an order as to costs after entry and sealing where a notice of motion was filed but the order was entered in the face of the motion
  2. 2 Whether the entry and sealing of the 27 March 1987 order amounted to an abuse of process

Ratio Decidendi

The entry and sealing of the order of 27 March 1987 by T.J.M.'s solicitors after service of a motion to vary or set aside that order was done to frustrate the jurisdiction of the Court and was an abuse of process. The Court's inherent power to prevent its process being used for a collateral advantage enabled it to set aside the entry and sealing of the order, notwithstanding procedural rules about finality of entered orders.

Court Disposition

Order entered and sealed on 8 April 1987 set aside as abuse of process; motion as to costs to be heard further; costs of motion reserved.

Orders

  • The entry and sealing of the order made 27 March 1987 be struck out.
  • The motion be set down for further submissions from counsel on the question of the costs of the proceedings.