As New Printing Machinery Co Pty Ltd v Hymans Asset Management Pty Ltd

25 Whilst her Honour did not expressly rule on the "against good faith" contention, I am of the view that it is a fair to infer that she either accepted it as made good or accepted that the reinstatement order had been made "irregularly". Her statement of acceptance of the defects in the two notices of motion not having being served upon ANP admits of no other conclusion. Making such a finding did not then mandate the setting aside of the order. The terms of r 36.15 UCPR clearly indicate that a court has a discretion as to this. The learned Magistrate's immediately following statement that "there is a substantial matter to be tried in these proceedings" leads me to conclude that she was of the view that the "just, quick and cheap" resolution of the proceedings would be best served by the matter advancing to it being determined on its merits rather than making orders that would bring the proceedings to an end and necessitating commencement afresh.

26 Criticism is made of the adequacy of the Magistrate's reasons. I accept that they are deficient in that they lack express statements of her findings on the "good faith" contention and the question of the discretion not to set aside the order notwithstanding the primary finding. It must, however be borne in mind that this was an ex tempore judgment given in proceedings that came before her Honour at the end of a busy day in a busy court. The hearing commenced not long before 4.00pm and was concluded shortly before 6.00pm.

27 In Maviglia v Maviglia [1999] NSWCA 188, Mason P said at [1]: "An ex tempore judgment should not be picked over. And appropriate allowance should be given for the pressures under which judges of the District Court are placed by the volume of cases coming before them."

28 The same can be said in respect of magistrates of the Local Court where the volume of cases is considerably greater.

29 There are, however, some minimum requirements. In Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449, Santow JA observed: "41 It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettitt v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279 per McHugh JA; Mifsud v Campbell (1991) 21 NSWLR 725; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings."

30 I am not satisfied that the reasoning of the Magistrate was not sufficiently disclosed. Her conclusions, and the bases for them, are adequately discernible in the manner which I have set out above. Power to set aside dismissal

31 The primary argument advanced by counsel for ANP was that there was no statutory power under r 36.16 to set aside an order of dismissal made pursuant to r 12.9. In Deputy Commissioner of Taxation v Meredith (No 2) [2008] NSWCA 133, Basten JA said: "6 In Bailey v Marinoff [1971] HCA 49; 125 CLR 529 at 530, Barwick CJ stated, in relation to this Court: 'Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed.' 7 As explained in DJL v Central Authority [2000] HCA 17; 201 CLR 226 in relation to the Family Court, subject to limited exceptions, one being in relation to fraud, that principle continues to operate: at [50]; see also Gamser v Nominal Defendant [1977] HCA 7; 136 CLR 145 and Harrison v Schipp [2002] NSWCA 78; 54 NSWLR 612 at [2]-[4] (Handley JA) and [138]-[140] (Giles JA) and [216] (Ipp AJA). Accordingly, the power of this Court to entertain the present application depends upon two questions; first, whether the orders were entered prior to the application to vary them and, secondly, if so, whether there is some statutory authority conferring power on this Court to reopen entered orders."

32 There is no issue that the order of dismissal had been entered and thus perfected. The question then arises as to whether there was any "specific and relevant statutory provision" to reinstate the proceedings. Hymans submitted that there was in r 36.16 whilst on behalf of ANP it was submitted that there was not.

33 Counsel for ANP correctly noted that the learned Magistrate did not indicate which subrule within r 36.16 she was referring to when stating that this rule conferred a power on the Court to vary an order dismissing proceedings. He suggested, correctly in my view, that it was r 36.16(2)(b). Counsel for Hymans concurred with this. Subrule 36.16(2) is in these terms: (2) The court may set aside or vary a judgment or order after it has been entered if: (a) it is a default judgment, or (b) it has been given or made in the absence of a party, whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order (c) in the case of proceedings for possession of land, it has been given or made in the absence of a person whom the court has ordered to be added as a defendant, whether or not the absent person had notice of the relevant hearing or of the application for the judgment or order.

34 It was submitted that this subrule is not apt to confer power on the Local Court to set aside an order dismissing proceedings under r 12.9 for two reasons. First, that "the power in UCPR 36.16(2)(b) operates in relation to only those circumstances where there has been a default in appearance by 'a party' in respect of a 'relevant hearing' or 'application' for a judgment or order irrespective of whether the party had notice of the 'relevant hearing' or 'application'." Counsel observed that the Court of its own motion exercises the power under r 12.9 in the absence of all parties rather than in the absence of "a party".

35 I see no reason why s 8 of the Interpretation Act 1987 should not be applied so as to construe "a party" as including both the singular and the plural. There is nothing in the subrule, the rule, or the rules generally that indicates an intention that "a party" in r 36.16(2)(b) should be construed literally to mean only the singular. In any event, to restrict the application of the subrule to judgments and orders made in the absence of one party, and hold that it does not apply where more than one party is absent, would lead to absurd results - for example it would deny relief in a case involving two defendants when a plaintiff obtained a judgment or order without notice and in the absence of them both.

36 As to the second part of the argument, I do not regard the words "whether or not the absent party had notice of the relevant hearing or of the application for the judgment or order" as dictating the circumstances in which the subrule can be applied. Clearly, the purpose of the subrule is to provide for the setting aside or variation of judgments and orders made in the absence of parties.

37 The second reason counsel submitted that the subrule is not apt to confer power on the Local Court to set aside an order dismissing proceedings under r 12.9 was that r 36.16(2) should be read with 36.16(3) which is in these terms: (3) In addition to its powers under subrules (1) and (2), the court may set aside or vary any judgment or order except so far as it: (a) determines any claim for relief, or determines any question (whether of fact or law or both) arising on any claim for relief, or (b) dismisses proceedings, or dismisses proceedings so far as concerns the whole or any part of any claim for relief.

38 This subrule was said by counsel to preserve the common law principle that a court has no power to set aside a final judgment or order disposing of proceedings after it has been entered. This led to the submission that for this reason r 36.16(2) should also be read as preserving that principle, otherwise there would be an inconsistency between the operation of r 36.16(2) and (3). Counsel did not explain how his argument could succeed with the inclusion of "default judgments" in r 36.16(2). In any event I reject this submission. Subrule 36.16(2) is clearly intended to apply to all judgments or orders of the type described that are entered or made in the circumstances described. Conclusion

39 I have concluded that there is no merit to any of the contentions advanced on behalf of ANP. Even if there were, I would not be disposed to grant the relief sought. There is really no utility in this proceeding. Success for ANP would only result in Hymans having to recommence the proceedings in the Local Court. If these proceedings were confined to the application for leave to appeal under s.74(2)(a) of the Local Courts Act I would be disposed to refuse leave. However, given there is the alternative relief sought under s.69 of the Supreme Court Act I have heard full argument on the matter and have dealt with the issues on their merits. For that reason alone I will grant leave to appeal. Judgment

2. The appeal is dismissed. 3. The plaintiff is to pay the defendant's costs of the appeal as agreed or assessed.

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