Duck Boo International Co Pty Ltd v Mizzan Pty Ltd [2006] VSCA 241

Court of Appeal (Vic)|2006-10-27|Before: MAXWELL, P. and EAMES, J.A.

PRACTICE AND PROCEDURE - County Court - Order made in the absence of party affected and without notice - Application to set aside - Party affected entitled to rehearing ex debito justitiae - Whether judge misapprehended jurisdiction - Whether judge mistook the facts - Decision set aside.

1 This is an application for leave to appeal from part of orders made by the judge in the County Court Practice Court on 1 September 2006. I will set out only so much of the history of the proceeding as is necessary to provide the context.

"1. The Third Defendants (sic) summons be dismissed with no order as to costs

2. The Third Defendant file and serve its defence on or before 30 September 2005

3. The time for service for notice of contribution under rule 11.15 be extended to September 5, 2005

4. Costs in relation to the application for extension of time are reserved".

Only the first two were orders sought by consent by Duck Boo and Curtis.

8 Later on 2 September, Mizzan filed a contribution notice which was said to be filed and served pursuant to the order of Her Honour Judge Gaynor made 1 September 2005. (Doubtless the date was meant to be "2 September", that being the date of the order.)

9 On 20 July 2006, Duck Boo filed a summons in the County Court seeking, relevantly, an order that the earlier notice claiming contribution against Duck Boo (dated 22 August 2005) be set aside, that the order made by her Honour extending time for service be set aside, and that the later notice of contribution (dated 2 September 2005) be set aside. The solicitor for Mizzan, Mr Weybury, filed an affidavit in opposition to that application. For reasons which will appear, that opposition was unfounded. The relevant order had been made ex parte, without notice, and the other party was entitled ex debito justitiae to have the application reheard. So the application to set it aside ought not to have been opposed. The application for the extension of time should have been re-heard.

10 Mr Weybury's affidavit contains very little detail as to the circumstances in which the ex parte order came to be made. He simply deposes to the fact that counsel was briefed to appear on behalf of Mizzan at the return of the application "to protect the interests of the first defendant". The solicitors were subsequently informed by counsel that he had appeared before the judge in the Practice Court and had "obtained an order extending the time for service of a Notice Claiming Contribution pursuant to Order 11.15 of the County Court Rules to 5 September 2005". The further notice was served pursuant to that order.

11 It is not apparent from this account how the judge came to make, purportedly by consent, the ex parte order sought by counsel for Mizzan. It is unnecessary for us to investigate how that could have occurred. What matters for present purposes is that Duck Boo was not present and did not consent to the making of those orders.

12 The summons seeking to have the ex parte order, and the notices of contribution, set aside was returnable before the judge in the County Court Practice Court on 31 July 2006. His Honour declined to set aside the later notice of contribution or the order extending time for service.

13 Duck Boo's application to set aside was based on Rule 46.08(b) of the County Court Rules, which is in the following terms:

"The court may set aside or vary an order which affects a person where the application for the order -

(a) ...

(b) was not made on notice to that person."

In addition to that rule, the County Court, like every court, has inherent jurisdiction to set aside its own orders.[1] Where an order is made ex parte without notice to a party affected, that party has the right, ex debito justitiae, to approach the court and have the application re-heard.[2] As Gillard, A.JA. noted in Savcor, where an application is made to set aside an order made without notice, whether the application is pursuant to the rule or the inherent power of the court, the court re-hears the original application.

14 Ordinarily, therefore, the court re-hearing the application will have the benefit of submissions and any material which the opposing party may wish to place before the court. As Gillard, A.J.A. said:

"...the party affected by the order [has the right] to appear before the court and put submissions as to why the order should not be made on the materials which were before the judge who made the first order. It is a rehearing and the court may reach a different decision after hearing submissions."[3]

15 In dealing with the application to set aside the order extending time for service of the notice of contribution, the judge below said:

"The present case is a little different from the usual application made pursuant to r.46.08(b). The consent order complained of was made on Duck Boo's summons and apparently procured by Duck Boo's solicitors, Messrs Deacons. It was not a case where a party overlooked attending court or did not have a reasonable opportunity to appear and present his case, or was absent through no fault of his own.

Accordingly, in all the circumstances, I think it is inappropriate to vary the order of her Honour Judge Gaynor..."

16 With respect, this was not an accurate characterisation of what had occurred before Judge Gaynor. The order purporting to extend time for service of the notice of contribution was not made by consent, nor was it made on Duck Boo's summons, nor was it "procured" by Duck Boo's solicitors. On the contrary, it was obtained ex parte on an oral application by counsel for Mizzan. So much is clear from the affidavit of the solicitor for Mizzan to which I have referred. His Honour therefore proceeded on a wholly mistaken view of the facts, and for that reason alone the decision cannot stand.

17 Contrary to what his Honour said, the application made by Duck Boo was a conventional application made pursuant to the rule. Duck Boo had had no reasonable opportunity to appear and present its case in opposition to the application for an extension of time. Its absence from court was through no fault of its own. In the conventional way, as I have said, the appearance of the plaintiff and Duck Boo on the return of the summons had been dispensed with, because they had agreed on the two orders which were to be made.

18 It is clear from his Honour's reasons that his misapprehension of what had occurred before Judge Gaynor was the basis of his conclusion that it was "inappropriate" to vary the order made extending time for service of the notice of contribution. As is made clear by Gillard, A.J.A. in Savcor, Duck Boo was entitled to a full re-hearing, as a matter of right. The order made without notice was therefore to be disregarded. The court had no discretion in that regard, that is, no discretion whether or not to start again. It follows that the judge mistook the nature of his jurisdiction and, for that reason also, the order for dismissal of the application cannot stand.

19 The power sought to be invoked by Mizzan on the oral application made by its counsel - that is, the power to extend time for service of a notice of contribution - is, of course, discretionary. The decision whether or not to exercise that power in this matter is properly a decision to be made by a judge of the County Court, after consideration of all the relevant circumstances and the applicable legal principles. As confirmed by senior counsel for Duck Boo, that consideration has never taken

place in the County Court. It is obviously inappropriate that it be undertaken by this Court.

20 It follows, in my view, that the application for leave to appeal should be granted, the appeal should be treated as having been instituted and heard instanter (pursuant to r.64.27(d)) and allowed, the impugned part of his Honour's order be set aside and the matter remitted to the County Court for hearing in accordance with law.

22 We will order that the respondent pay the appellant's costs of this application and of the appeal and that the question of the costs of the County Court summons be determined by the judge to whom the proceeding is remitted.

[1] Taylor v Taylor [1979] HCA 38; (1979) 143 CLR 1 at 16 per Mason J, provided that the inherent power has not been removed by statute.

[2] Savcor Pty Ltd v Cathodic Protection International [2005] VSCA 213; (2005) 12 VR 639 at [20] per Gillard AJA, with whom Ormiston and Buchanan JJA agreed.

[3] Ibid at [21]

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