Applicant v Respondent

Supreme Court of Victoria|2007-10-01|Before: KAYE J

PRACTICE AND PROCEDURE - Application to set aside previous order for costs in absence of applicant - Previous order granting adjournment at request of applicant - Whether Rule 46.08 applies - Delay - Application without merit - Application to set aside costs order refused.

1 This is an application made by the applicant/appellant by summons dated 20 July 2007. By that summons, the applicant firstly applies for an order that the order of Byrne J made in August 2006, which I understand to be 3 August 2006, be set aside. If that order is made, she also applies for orders extending time for bringing the notice of appeal, which is dated 11 April 2006, and applies to have that appeal heard before me.

2 However, it is the first part of the summons which must be disposed of first. That relates to the order of Byrne J of 3 August 2006. By that order, his Honour ordered that the plaintiff's application, which I understand to be her appeal, be adjourned to 21 August 2006 in the Practice Court; that the plaintiff pay the defendant's costs of the day fixed in the sum of $1,750; and that if those costs were not paid by 17 August 2006, the adjourned date be vacated and the application be stayed until they are paid or until further order. The applicant has not paid the respondent's costs fixed by Byrne J. Accordingly, her application for leave to extend the period of time within which to bring her appeal and her appeal are stayed unless I set aside the order made by Byrne J on 3 August.

3 This matter has a very long history. Relevantly, it can be summarised as follows. In this and two related matters, the applicant sought leave to appeal orders made by the Victorian Civil and Administrative Tribunal on 13 September 2001. On 2 August 2002, Byrne J dismissed the application for leave to appeal with costs. The applicant sought leave to appeal that decision to the Court of Appeal. On 29 November 2002, the Court of Appeal refused leave with costs.

4 On 9 November 2002, Master Bruce taxed the respondent's costs in relation to the hearing before Byrne J in the sum of $17,139.20 and in respect of the application before the Court of Appeal in the sum of $12,716.95. On 23 November 2005, the applicant applied for review of the taxation of costs pursuant to r.63.56(1)(v). On 31 January 2006, at a callover, Master Bruce struck out that application, upon the non-attendance of the applicant. The applicant apparently had notified the Court that she would not be attending.

5 On 11 April 2006, the applicant filed the notice of appeal from the order of Master Bruce dated 31 January 2006. That appeal and the application for leave to extend the period of appeal came before Hargrave J on 1 May 2006. His Honour referred the matter to the Listing Master, who on the same date set the matter down for 3 August 2006. Shortly before 3 August 2006, the applicant notified the Listing Master that she sought an adjournment of the date for the hearing of her application on the basis of ill health, and provided a medical certificate in support of that application. The application was resisted by the respondent, and so it came before Byrne J on 3 August 2006, and on that date his Honour made the orders to which I have just referred.

6 As I stated, the first clause of the applicant's summons which is before me seeks orders setting aside the orders of Byrne J of August 2006. That application has been made under r. 46.08 of the Rules of the Supreme Court. That rule was introduced for the first time in this State in 1986. However, hitherto it had been recognised that this Court has an inherent jurisdiction to set aside any order that was made in the absence of a party. Generally, where such an order has been made, the applicant who seeks to have it set aside must show, firstly, a reason why he or she did not attend and, secondly, that the applicant has an arguable case why a different order might be made than was made in his or her absence. In addition, any such application must be made without undue delay and issues of prejudice to the respondent are relevant: see, for example, Rosing v Ben Shemesh.[1] In my view, similar principles should be applied to Order 46.08.

7 In the course of argument I expressed some doubt as to whether indeed this case fell within Order 46.08 or within the ambit of the inherent jurisdiction of the Court. I say that because, notwithstanding that the applicant did not attend before Byrne J on 3 August 2006, nonetheless she made an application for an adjournment. That application was considered by his Honour and indeed granted. The rationale for the rule of Court enabling the Court to set aside an order made in the absence of a party is that the order is made without an adjudication on its merits. Here there was an adjudication on the merits of the application, that is, the merits of the application to have the applicant's appeal adjourned. Accordingly, I have some doubt as to whether this Court, constituted by myself, has the jurisdictional power to set aside the order of Byrne J. However, I have come to the conclusion that I do not need to resolve that issue because, in my view, the application must fail in any event.

8 First, it is clear that there has been inordinate delay on behalf of the applicant in making her application to set aside the order of Byrne J. It does appear that the applicant did send an application in expeditiously in August 2006, but for some reason it was returned to her. It does not seem that the applicant can be criticised or blamed for that. Nonetheless, she did not then proceed to make any further application to set aside Byrne J's order until 20 July 2007, and did not serve that application on the respondent until 27 September 2007. The applicant has attested to the fact that she had other commitments including looking after her ill mother. Nonetheless, as she accepted, she appeared before me in November last year. Furthermore, the matters set out in her affidavit do not, in my view, provide any proper explanation why she has not issued her application more expeditiously. The order of Byrne J is an order of this Court which has stood in full force. It is a long-standing principle, as I stated, that parties who wish to have such an order set aside must act expeditiously. The delay by the applicant in this case is in the order of twelve months and, indeed, if one takes into account the fact that it was not served until 27 September, almost fourteen months. In those circumstances, I consider that there has been inordinate delay which in itself is sufficient to warrant the refusal of the application by the applicant.

9 Secondly, I am of the view that the application before me is without merit. The fact of the matter is that the application for an adjournment before Byrne J was made at a late stage. In my view, the respondent was justified in opposing it. The medical material that was sent in support of the application was, to say the least, exiguous. It was not unreasonable for the respondent to oppose that application, given the fact that the matter was a long-standing one which was well overdue for completion. In those circumstances, in my view, no adequate basis has been shown why an order ought not have been made against the applicant for costs on 3 August. I also consider that no basis has been made out for setting aside the order by Byrne J that the matter be stayed unless and until those costs had been paid by the applicant.

10 For those reasons, I refuse the application for an order setting aside the orders of Byrne J made in August 2006. That being so, it would seem to me clear that the appeal and the application for leave to extend the time of that appeal are stayed and thus the remainder of the summons brought by the applicant on 20 July must also fail and be dismissed.

11 I therefore order that the summons herein dated 20 July 2007 be dismissed.

13 Costs should follow the event. Therefore, I order:

1. That the applicant's summons dated 20 July 2007 be dismissed.

2. That the applicant pay the respondent's costs of her summons.

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Judgment (17 paragraphs)

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