Jenkins v Visualeyes Pty Ltd [2003] VSC 14

5. It is not in issue that, as explained in the affidavit of Mr Crump, solicitor for the plaintiff, the failure of the plaintiff to appear arose from an oversight in the office of a barristers' clerk. On 18 November 2002 the plaintiff filed a summons seeking an order pursuant to Rule 46.08 of the Rules to set aside what was there described as "the order" of Master Evans. On 5 February 2003 that summons came before Master Evans, who referred it to the Judge in the Practice Court, reserving the costs. His reasons for doing so were:

because it appeared that Rule 46.08 was restricted to orders (See Delmo v Merrigal Pty Ltd (Murphy J 29 April 1988, unreported), but that the question whether the court could make the order sought in its inherent jurisdiction was not apparently considered by his Honour and merits an authoritative answer.

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

(a) was made on notice to that person, but he did not attend the hearing of the application; or

The Court clearly has power pursuant to Rule 21.07 to set aside a judgment given. Rule 21.07 reads:

"21.07 The Court may set aside or vary any judgment entered or given in accordance with this order".

The present judgment was given upon the statement of claim under Rule 21.04

This is a new rule. It relates only to orders. As the Rules distinguish between judgments and orders, it is I think fairly clear that Rule 46.08 does not relate to judgments. It appears that Order 46 applies to interlocutory applications in a proceeding. . . .

Rule 46.08 appears to me to complement Rule 21.07, the former applying to orders, the latter to judgments.

Rule 1.14(2) would allow "any person who has a sufficient interest" to apply to the Court for an order setting aside a judgment (Rule 21.07) or setting aside an order (Rule 46.08).

26. The argument before the Court turned on the question whether, absent a specific Rule providing for the Court to set aside a judgment as opposed to an order, the Court has an inherent power to do so. If the answer to that question is no, it was common ground that it would be open to the plaintiff to discontinue the application under Rule 46.08 and formally appeal against the decision of Master Evans.

29. It was put that the only Rules expressly providing for the setting aside of a judgment are:

* Rule 21.07: providing for the setting aside of a judgment entered or given in default of appearance or pleading;

* Rule 22.15: providing for the setting aside of a summary judgment given against a party who did not attend;

* Rule 24.06: providing for the setting aside of a judgment entered or given upon the failure of a party to do any act or take any step;

35. However, the submissions appear to have overlooked Rule 49.02(2), which provides:

The Court may set aside or vary any judgment, order or verdict obtained where a party is absent at a trial.

Given that the issue between the parties was decided on the merits, what took place before the Master on 6 November appears to have been the actual trial of the action. If that is the case, there is jurisdiction in the Court under Rule 49.02(2) to set the decision aside, although it would be necessary for the Court to have before it affidavit material to that effect.

40. Rule 49.02(3) provides that an application under Rule 49.02(2) must be made within 14 days of the trial. Whether application is made to amend the summons accordingly, or a separate application brought to file a further summons out of time is a question for the plaintiff.

43. It would seem appropriate for the matter to be referred back to the Master for reconsideration in the light of this ruling.