Power to vary orders August 9, 2016
4…the Court has power to vary its orders pursuant to r 36.16(3A) of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). Whilst conceding the availability of the power to vary, the Commission opposed the exercise of the power. It did so on three broadly defined bases. First, as a matter of principle, the Commission submitted that the power should be exercised sparingly, because it constituted an exception to the principle of finality.
5 Secondly, although the power is properly available to correct errors or misapprehensions, whether of fact or law, on the part of the Court, it should only be exercised where the reason for its exercise “cannot be attributed solely to the neglect or default of the party seeking the rehearing”.  In the present case, the Commission said the failure to seek the declaration now proposed was solely attributable to the failure of the applicant to seek it.
6 Mason CJ, in dissent in Autodesk, adopted a wider view than the majority as to the powers of the High Court to reopen a judgment where orders had not been entered. Without deciding the boundaries of the power, the Court said in Castle Constructions Pty Limited v Sahab Holdings Pty Ltd [No 2]: 
“ All members of the Court in Autodesk [No 2] accepted  that this Court may recall orders which it has made disposing of an appeal if those orders were made against a party who, without fault on the part of that person, has not had an opportunity to be heard as to why those orders should not be made. More particularly, it was accepted  that this Court may recall its orders if they were made on a ground which the person against whom the orders were made had no opportunity to argue. 
 … Mason CJ said  that the exercise of the jurisdiction to reopen should not be confined ‘in a way that would inhibit [the Court’s] capacity to rectify what it perceives to be an apparent error arising from some miscarriage in its judgment’. Nonetheless, Mason CJ emphasised  that the jurisdiction to reopen ‘is not to be exercised for the purpose of re-agitating arguments already considered by the Court’. Rather, Mason CJ concluded  that ‘[w]hat must emerge … is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and that this misapprehension cannot be attributed solely to the neglect or default of the party seeking the rehearing’.”