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[2014] VSC 250
General information, not legal advice.
Supreme Court of Victoria
2014-05-30
Derham AsJ
Original judgment source is linked above.
JUDICIAL REVIEW - Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 - Application in the nature of certiorari and mandamus - Whether error on the face of the record - Whether jurisdictional error made - Defence to Magistrates' Court complaint struck out pursuant to self-executing order - Defendant's application to set aside order striking out defence under Rule 59.10(3) of the Magistrates' Court General Civil Procedure Rules 2010 refused - Judgment obtained pursuant to Rule 21.02(b) of the Magistrates' Court General Civil Procedure Rules 2010 - Application by defendant under of the to set aside the judgment and have the proceeding reheard - Application refused - Quantum of judgment entered was based on expert evidence introduced on information and belief - Judgment set aside - No leave to defend granted - Whether error - No error - Application refused.
1 By further amended originating motion,[1] the plaintiff, who was the defendant in Magistrates' Court proceedings below, applies for relief in the nature of certiorari and prohibition, quashing a judgment of the Magistrates' Court of Victoria at Melbourne made on 15 March 2013 that he pay the first defendant (Defendant) the sum of $100,000 damages and $14,383.56 interest.
2 Behind that judgment lies a hearing before Magistrate Braun on 12 and 13 September 2012 in the course of which the learned Magistrate refused the plaintiff leave to defend the claim brought against him by the Defendant in the Magistrates' Court of Victoria at Melbourne (Complaint).[2]
3 The grounds stated in the further amended originating motion were general in nature and are as follows:
(a) The Magistrate misdirected himself as to the applicable principles to be applied in refusing to grant the plaintiff leave to defend the Complaint;
(b) The Magistrate failed to properly take into account relevant considerations in deciding to refuse the plaintiff leave to defend the Complaint;
(c) The Magistrate took into account irrelevant considerations in deciding to refuse the plaintiff leave to defend the Complaint; and
(d) The Magistrate's decision to refuse the plaintiff leave to defend the Complaint was so unreasonable that no reasonable person could have so exercised the power.
4 By order of Cavanough J made on 3 October 2013, the proceeding was referred to me for hearing and determination (pursuant to Rule 77.05 of the Supreme Court (General Civil Proceedings) Rules 2005) (Supreme Court Rules).
5 The Defendant's father, Darren Gill, died on 2 December 2000. He had made a Will on 19 April 1996 under which he left one half of his estate in trust for the Defendant (the Trust). The plaintiff, the Defendant's grandfather, was appointed Trustee pending her majority. The plaintiff assumed his role as Trustee on 24 August 2001.
6 Under the Trust, the plaintiff held the capital and income of the Trust (Trust Funds) until the Defendant attained the age of majority, which occurred on 17 June 2010 (the Vesting Day). On the Vesting Day, it is alleged that the plaintiff:
(a) Refused to release all the Trust Funds to the Defendant;
(b) Refused to provide Trust documents to the Defendant; and
(c) Failed to provide any account of the Trust to the Defendant.
7 By Originating Motion filed on 31 May 2011, the Defendant made application in this Court for, amongst other things, a declaration as to the vesting of the Trust in her (on 17 June 2010) and for orders for the production and inspection of the Trust records, documents, accounts and materials (the original Supreme Court Proceedings).
8 The Originating Motion was heard on 1 July 2011. At that hearing the plaintiff provided an undertaking to the Court that to the best of his knowledge and belief he had provided to the Defendant all Trust documents and records that he had in his possession. The Court made the declaration that the Trust had vested on 17 June 2010.[3]
9 The Defendant, or her advisors, assessed the Trust records and ascertained that losses had been incurred by the Trust. On 15 November 2011 she filed the Complaint in the Melbourne Magistrates' Court,[4] (the Magistrates' Court Proceeding) against the plaintiff to recover $100,000.00 (being the jurisdictional limit). Her total claim against the plaintiff was $119,589.55. To reduce legal costs, however, she waived the excess over $100,000.00.
10 In the Magistrates' Court Proceeding, the Defendant served a Notice for Discovery on 28 December 2011. In response the plaintiff served on the Defendant an Affidavit of Documents dated 8 February 2012 disclosing previously undisclosed Trust documents.
11 A Court ordered mediation was held on 2 March 2012. Following the mediation, the Defendant made application for further discovery from the plaintiff.
12 On 11 April 2012 the Magistrates' Court made an order that the plaintiff make, file and serve a Further and Better Affidavit of Documents within 21 days. The order referred to specific categories of documents. It also made a self-executing order that in the event that the plaintiff failed to comply with the Order, his Defence shall be struck out[5] (Self-Executing Order). That Order might have been automatically triggered when the plaintiff failed to comply with it. He did, however, make an affidavit of documents on 30 April 2012 and another on 15 May 2012, the latter consolidating his previous affidavits of documents sworn on 8 February, 11 April and 30 April 2012, as well as adding documents not previously disclosed.
13 Nevertheless, on 20 July 2012, the Magistrates' Court found that the plaintiff had failed to provide discovery in accordance with the Order made on 11 April 2012 and, accordingly, directed the Registry to record that the plaintiff's Notice of Defence was struck out as at 3 May 2012 for non-compliance with the order made on 11 April 2012[6] (Strike-Out Order).
14 Under rule 59.10(2) of the Magistrates' Court General Civil Procedure Rules 2010 (Magistrates' Rules),[7] a defendant whose defence is struck out upon the failure to comply with a self-executing order is, for the purpose of Part 1 of Order 21, taken to be a defendant who does not give notice of defence. This enables the plaintiff to proceed to enter judgment in default of defence without notice to the defendant.
15 After the Magistrates' Court made the declaration striking out his Defence, the plaintiff made an application pursuant to rule 59.10(3) to set aside or vary the self-executing order. Rule 59.10(3)[8] empowers the Court to set aside or vary, as the case requires, the striking out of a notice of defence upon the failure of a defendant to comply with a self-executing order. That application was heard and refused on the same day, namely 20 July 2012, as a direction to the Registry.[9]
16 The direction to the Registry made on 20 July 2012 was not set aside or varied, nor was the decision to refuse the application pursuant to Order 59.10(3) of the Magistrates' Rules challenged, appealed or reviewed.
17 Pursuant to an application under Rule 21.01 of the Magistrates' Rules made by the Defendant on or about 25 July 2012, on 9 August 2012, the Defendant applied for and obtained judgment in default of defence, in the amount of $100,000.00, plus interest and costs. No notice of the application was given to the plaintiff, nor was the affidavit in support served on him, as Order 21 makes no provision for that to be done, leaving it to the Magistrate to require it if appropriate.[10]
18 On 21 August 2012, the plaintiff filed an application for a re-hearing pursuant to s 110 of the Magistrates' Court Act in the form specified in Rule 46.09(2).[11]
19 Also on 21 August 2012, the Defendant filed an application that the Magistrates' Court in giving its judgment on 9 August 2012 failed to consider and provide for her costs of the proceedings generally, as opposed to the costs of the default Order obtained.
20 Both the re-hearing application and the Defendant's costs application were heard together on 12 and 13 September 2012. During the hearing the plaintiff, represented by Mr Marantelli of Counsel, raised a new ground for setting aside the order of 9 August 2012. This ground concerned the Court accepting the Defendant's forensic accountant's expert evidence as part of the solicitor's verifying affidavit (made pursuant to Rule 21.02 (b) of the Magistrates' Rules) rather than as an affidavit of the forensic accountant himself.
21 Thus the Magistrate considered three applications during the hearing on 12 and 13 September 2012:
(a) The plaintiff's re-hearing application under s 110 of the Magistrates' Court Act;
(b) The plaintiff's application to set aside the judgment due to an error in the Court accepting the Defendant's evidence of losses in her solicitor's verifying affidavit; and
(c) The Defendant's application for cost of the proceeding.
22 In the course of argument concerning the application under s 110 of the Magistrates' Court Act, Mr Marantelli of Counsel for the plaintiff (defendant below), made it clear to the Magistrate that the application was to set aside the judgment entered on 9 August 2012, that is the judgment entered in the ex parte application pursuant to Rule 21.02(b) of the Magistrates' Rules, so that the plaintiff had the opportunity of a trial, or hearing, both as to liability and quantum, or in the alternative, a hearing as to quantum.[12]
23 The conditional clause in s 110(1) expresses three jurisdictional facts, namely that:
24 The solicitor for the Defendant contended before the Magistrate that s 110 had no application because the plaintiff had appeared in the proceeding, albeit not at the hearing leading to the judgment of 9 August 2012. Counsel for the plaintiff contended that the relevant appearance was at the hearing leading to the judgment of 9 August 2012 that the plaintiff sought to set aside.[13]
25 The learned Magistrate held that the application was within his jurisdiction because the construction of s 110 advanced for the Defendant was too narrow and, on the basis of the decisions to which he referred the parties, namely Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd[14] and Racovalis v Rescom Mortgages Pty Ltd,[15] he considered he had the power to set aside the judgment of 9 August 2012, whether pursuant to rule 59.10(3) or s 110, did not matter, if the interests of justice in the particular circumstances of the case warranted such an order.[16]
26 There has been no complaint or appeal by the Defendant as to this finding.
27 Counsel for the plaintiff (defendant below) then advanced the proposition that he had a good defence to the claim on the merits, that there was a reasonable explanation for the non-attendance at the hearing on 9 August 2012, and that the application to set aside the judgment was made promptly after it came to his notice, so as to attract the exercise of the discretion of the Court to set aside the judgment and grant the plaintiff leave to defend the claim, as referred to in such cases as Evans v Bartlam,[17] Rosing v Ben Shemesh[18] and Kostokanellis v Allen.[19]
28 This submission was met by the proposition that it involved ignoring the default judgment and the failure of the plaintiff to comply with the Self-Executing Order that gave rise to it.[20]
29 Counsel for the plaintiff then went on to contend that the evidence in support of the judgment, which was an affidavit of the Defendant's solicitor, Mr Staalkjaer, included inadmissible hearsay opinion evidence of an expert accountant as to the quantum of the compensation (being in substance the misapplication of trust monies). The affidavit of Mr Staalkjaer simply exhibited a report of the expert.[21] Moreover, Order 44 of the Magistrates' Rules required, amongst other things, the expert report to be served on the plaintiff in advance of the hearing.
30 In short, Counsel for the plaintiff, when pressed, was compelled to submit that in the circumstances of this case, even where the Defendant's application leading to the judgment of 9 August 2012 was an application for judgment (as a consequence of the defendant failing to file a defence) in the nature of an interlocutory judgment for damages to be assessed in an undefended proceeding, the plaintiff was entitled to be heard on the assessment of the damages. That, it was contended, was the case notwithstanding that the plaintiff had been legitimately deprived of the right to defend the proceeding by the Self-Executing Order and subsequent order confirming that his defence was struck out.
31 Counsel for the plaintiff advanced the proposition below, which is advanced before me, that s 110 of the Magistrates' Court Act entitles the plaintiff (if he establishes the requisite grounds for the setting aside of the judgment)[22] to an order that the judgment be set aside and that the proceeding be re-heard. That re-hearing required by the section necessarily involved the Self-Executing Order being set aside as well. Alternatively, the plaintiff had a right to have the judgment set aside and, although the notice of defence remained struck out, the plaintiff had a right to be heard on the assessment of quantum in the application pursuant to rule 21.02(b).[23]
32 The Magistrate ordered (on 13 September 2012) that:
33 The reference to the application by the judgment creditor dated 4 September 2012 is a reference to the application for the costs of the proceeding as a whole, which because the judgment was set aside, did not need to be dealt with.
34 The application under s 110 (to have the judgment set aside and for an order that the proceeding be reheard and the plaintiff have leave to defend) was advanced on the basis that the plaintiff did not appear at the hearing, it was a final order, the application was made promptly and the plaintiff had a defence on the merits. The learned Magistrate dismissed that application, finding:
(a) The issue of whether the plaintiff (defendant below) should have an opportunity to defend the proceeding was the subject of the application under rule 59.10(3) of the Magistrates' Rules to set aside the striking out of the notice of defence in consequence of the failure to comply with the Self-Executing Order. That application was lost;
(b) The application under s 110, in so far as it attempted to interfere with the Self-Executing Order and give to the plaintiff the opportunity to defend the proceeding, was the second application to that effect. There was no new material submitted to the court, nothing had been done since the application under rule 59.10(3), and pursuant to the principles referred to by Hargrave J in Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd[24] and by the Court of Appeal in Racovalis v Rescom Mortgages Pty Ltd,[25] it was a second application, not in the interests of justice, an abuse of process and in accordance with the discretion conferred by s 110(2), therefore he would not entertain it;[26] and
(c) Whilst it was conceivable that the judgment entered on 9 August 2012 could be set aside and the plaintiff could be granted leave to defend the quantum of the claim, to do that where the defence was struck out for non-compliance with orders concerning the discovery of documents relating to that quantum, and where it was the second application of that character, was unfair, not in the interests of justice, would undermine the orders of the court and in the exercise of his discretion he would not do it. It would be an abuse of process to allow the plaintiff to defend the proceeding, whether the opportunity to defend was limited to quantum or extended to both liability and quantum.[27]
(a) The opinion of the expert exhibited to the affidavit of the solicitor for the Defendant, Michael Staalkjaer (for the purposes of establishing the quantum of the claim in the hearing pursuant to Rule 21.02), was hearsay and, as the application was for a final and not an interlocutory order, the affidavit on information and belief was not admissible. Thus judgment was entered when it should not have been and the plaintiff was entitled to have the judgment set aside ex debito justiciae;[28]
(b) The Magistrates' Court retains a discretion under s 110(2). That discretion empowers the court to set aside the order subject to any terms and conditions that it thinks just and re-hear the proceeding. That power enables the court to set aside the judgment entered on 9 August 2012 and to order the proceeding to be reheard undefended, both as to liability and quantum; and
(c) The submission that Order 44 required service of the expert opinion on the plaintiff was rejected. It was impossible to comply with Order 44 in a case where the effect of the court's orders and the Magistrates' Rules is that the matter proceeded undefended (under the Order 21 procedure) and where the plaintiff has no right to appear and be heard, which is the case where the plaintiff's defence is struck out.[29] Insofar as necessary, his Honour would have dispensed with the requirement to comply with Order 44, in so far as it required service of the expert report on the plaintiff (defendant below).[30]
36 His Honour therefore set aside the judgment so that it was reinstated to the position where it was undefended, leaving the Defendant (plaintiff below) to proceed according to law.
37 This the Defendant did, and on 15 March 2013 the plaintiff (defendant below) was ordered to pay the Defendant (plaintiff below) $100,000 plus interest of $14,383.56, and the costs were ordered to be taxed by the Costs Court in default of agreement.
38 The second defendant, the Magistrates' Court of Victoria at Melbourne, is joined as a necessary party pursuant to Rule 56.01(3) of the Supreme Court Rules. In accordance with the normal practice, the Magistrates' Court formally entered an appearance and advised that it did not intend to take any active role in the proceedings and would abide by the decision of the Supreme Court in accordance with the principles enunciated in R v Australian Broadcasting Tribunal, Ex parte Hardiman & Ors.[31] The Magistrates' Court also advised that it did not intend to be represented at the hearing but that in the event that the presiding judge was considering an order for costs against the Court, the Magistrates' Court would seek an opportunity to be heard before that order was made. Accordingly, at the trial of the proceeding on 4 October 2013 there was no appearance on behalf of the Magistrates' Court.
39 The plaintiff relied upon affidavits sworn by him on 12 October 2012 and 28 February 2013, and the exhibits to those affidavits. The affidavit of the plaintiff of 28 February 2013 is, in substance, the same as the affidavit filed by him in support of his re-hearing application on 24 August 2012. As occurred with the affidavit in support of the re-hearing application, the Defendant objected to several paragraphs of the affidavit of 28 February 2013. I set out in the Schedule to these reasons the objections and my rulings.
40 The Defendant relied upon the affidavit of her solicitor, Mr Michael Staalkjaer, sworn 15 April 2013 and the exhibits to that affidavit. In addition, the Defendant relied on:
(a) The Transcript of the Magistrates' Court hearing on 12 and 13 September 2012 exhibited to the affidavit of the plaintiff of 28 February 2013 as Exhibit "DG8";
(b) The plaintiff's re-hearing application and the affidavits filed by the parties for the hearing on 12 and 13 September 2012; including:
(i) The re-hearing application, in Form 46B, dated 19 August 2012 filed on 21 August 2012;
(ii) The affidavit in support of the re-hearing application sworn by Mr Frank Guastalegname on 21 August 2012;
(iii) The affidavit in support sworn by the plaintiff on 24 August 2012; and
(iv) The affidavit in reply sworn by Mr M. Staalkjaer on 11 September 2012.
41 The plaintiff objected to paragraph 14 of Mr Staalkjaer's affidavit[32] as it revealed a matter disclosed in the course of a mediation. The paragraph itself shows that what it refers to took place during a mediation ordered by the Magistrates' Court. I will accordingly strike out and disregard the content of that paragraph. The plaintiff also objected to paragraphs 27 to 30 on the grounds that they are irrelevant.[33] The paragraphs concern correspondence sent by the plaintiff to the Defendant, or to members of her family, personally concerning the claims brought by the Defendant notwithstanding that both were represented by solicitors. I cannot discern any relevance to the issues in this application of the matters referred to in those paragraphs. They will be struck out and I shall disregard them.
42 The jurisdiction of the Supreme Court on a Judicial Review application pursuant to Order 56 of the Supreme Court Rules is limited to supervising inferior courts and tribunals and does not entitle this Court to canvass matters that it would on an appeal. Judicial review is not concerned with the merits of the decision under review, that is, it is not concerned with whether the decision was fair or correct.[34]
43 Insofar as concerns the supervision of inferior courts of law (as distinct from tribunals), a summary of the scope of the Court's jurisdiction to make orders under Order 56 is as follows:
(a) Order 56 replaces the procedure for Court's jurisdiction to grant remedies in the nature of the old prerogative writs (certiorari, mandamus, prohibition or quo warranto) with a procedure for the jurisdiction to be exercised only by way of judgment or order. The changes are procedural;[35]
(b) The Supreme Court Rules do not affect the principles by which the Court determines whether relief or remedy ought to be granted;[36]
(c) The Court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review;[37]
(d) The jurisdiction is supervisory. It is concerned with the decision making process and not with the decision itself. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal, or a substitution of the order or decision which the Supreme Court thinks should have been made;[38]
(e) An order in the nature of certiorari merely enables the quashing of an impugned order or decision upon one or more of a number of distinct established grounds: most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud, and error of law on the face of the record. If the decision is set aside, the Court leaves it to the inferior court or tribunal to hear the case again, and in a proper case may command it to do so;[39]
(f) Where an order in the nature of certiorari is sought on the ground of jurisdictional error, breach of procedural fairness or fraud (including bad faith), the Court can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it;[40] and
(g) In contrast, where relief is sought on the ground of error of law on the face of the record, the Court is restricted to "the record" of the inferior court or tribunal and an order in the nature of the writ of certiorari will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.[41]
(a) An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act;
(b) Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction;
(c) Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge;
(d) Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach;
(e) An inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied, even though the matter is the kind of matter which the court has jurisdiction to entertain;[44]
(f) Jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case;
(g) An inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In this case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern;
(h) The distinction between jurisdictional error and error within jurisdiction has been seen as effectively abolished in England, but not in Australia, so that Lord Reid's comments in Anisminic Ltd v Foreign Compensation Commission[45] should not be accepted here as an authoritative statement of what constitutes jurisdictional error by an inferior court for the purposes of certiorari;
(i) The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction of the inferior court or tribunal. Mistake in the identification of such issues or the formulation of such questions on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not ordinarily constitute jurisdictional error; and
(j) A failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely on in determining such a question, will not ordinarily involve jurisdictional error.
45 The record is comprised by the actual extract from the Court's register disclosing the order made, the initiating document and the pleadings.[46]
46 In the absence of some statutory provision to the contrary, the record of an inferior court for the purposes of certiorari does not ordinarily include the transcript, the exhibits or the reasons for decision: Craig v South Australia.[47]
47 Section 10 of the Administrative Law Act 1978 (Vic) provides that any statement by a tribunal or inferior court of its reasons for decision, whether made orally or in writing, is taken to form part of the decision, and accordingly to be incorporated in the record. It has been held that, for the purpose of the qualification stated in Craig v South Australia, s 10 constitutes statutory provision to the contrary of the general rule that a statement of reasons by an inferior court is not part of the record.[48]
48 In addition, the record may be expanded to include the transcript of the proceeding if in fact it is incorporated into the record by reference.[49] A reference in reasons for decision to evidence, or to the submissions of counsel, might thereby make the evidence or the submissions part of the record.[50]
49 In this case the transcript of the hearing, including the Magistrates' ruling on 13 September 2012, was included without objection in the Court Book and relied on by both parties. Even if it were not relied on by both parties, it is incorporated into the Ruling, or reasons for judgment, of the learned Magistrate because he refers to it in that Ruling at a number of points.
50 The grant of certiorari is discretionary.[51] This is not the place to review the authorities relating to the exercise of the discretion. Aronson & Groves, in Judicial Review of Administrative Action, 5th Ed, review the authorities at chapter 12.15. They note that the remedies (of certiorari and prohibition) are sometimes refused where it is thought preferable for the applicant to pursue a right of appeal, if available.[52] For example see Kuek v Victoria Legal Aid,[53] where it was held that unless there were exceptional circumstances, a litigant could not raise as an alleged error of law for determination under O 56 a matter or thing which was proper for determination on an appeal where the litigant had a right of appeal under s 109 of the Magistrates' Court Act.
51 Considerations that are relevant to the exercise of the discretion include-
(a) The utility of the relief that is sought and the conduct of the applicant;[54] and
(b) The public interest that there should be an end to litigation.[55]
52 Section 110 applies both to a final order against a person made without a hearing on the merits upon the default of the person in filing a notice of defence and to one made after a hearing on the merits at which the person did not appear.[56] Further, an order granting or refusing an application under s 110 is not a final order for the purposes of s 109 (which concerns appeals from final orders).[57] For this reason, the grant or refusal of an order under s110 can be challenged only by judicial review under Order 56 of the Supreme Court Rules,[58] as is the case at hand.
53 An order in the nature of prohibition is appropriate where an inferior tribunal has exceeded its authority or assumed a jurisdiction it does not possess. Its object is not merely to prevent an individual being vexed by an order which might affect them in their person or property, made by a person or tribunal assuming to have jurisdiction to make such an order, but having no such jurisdiction, but also to prevent any person or tribunal from assuming a jurisdiction which has not been conferred on him or it.[59]
54 The main difference between certiorari and prohibition concerns the timing of the application to Court.[60] There is little or no difference in principle between certiorari and prohibition, except that the prohibition may be invoked at an earlier stage. If the proceedings establish that the body complained of is exceeding its jurisdiction by entertaining matters which would result in its final decision being subject to being brought up and quashed on certiorari, then prohibition will lie to restrain it from so exceeding its jurisdiction.[61]
55 It was submitted that the Magistrate erred in that:
(a) Although there is no argument that the decision whether or not to set aside the decision under s 110 is discretionary, including the determination of the terms or conditions upon which the decision is set aside, the short point is that whatever terms and conditions subsection (2) contemplates, a term and condition cannot be that the matter not be reheard, and that is the effect of the order;[62]
(b) If the Magistrate determines, in the exercise of his discretion, to set aside the final order under s 110, he has to order a re-hearing as that is what the section requires. There cannot be a re-hearing where the plaintiff (defendant below) is in the position that he has no defence. Thus, if the order is set aside, for there to be a re-hearing, the Self-Executing Order must also be set aside and the plaintiff granted leave to defend, by reinstating his notice of defence, or ordering the filing and service of a new one;[63]
(c) The effect of his decision was that the court's ability to exercise the discretion conferred by section 110(2) of the Magistrates' Court Act was quarantined by the presence of an extant self-executing order. Section 110(2) does not say or imply that no order can be made under it because the judgment sought to be set aside was entered after a self-executing order had been made. The Self-Executing Order is not a bar to the default judgment being set aside and the plaintiff (defendant below) having leave to defend;[64]
(d) He elevated a default judgment obtained where (according to Rule 59.10 (2)) the plaintiff was "taken to be a defendant who does not give notice of defence" as a higher species of judgment than one, say, obtained in default of defence or summarily;[65]
(e) The terms of s 110(1) enable an application to the court for an order that the final order concerned be set aside and "that the proceeding be reheard". A part of the order made on 13 September 2012 was that the proceeding be reinstated. The order that then followed, namely that "leave to defend is refused" makes the order setting aside judgment and reinstating the proceeding futile;[66]
(f) The terms and conditions contemplated by s 110(2) concern matters such as compliance with a timetable for pleadings, satisfying outstanding costs orders and payment of monies into court. Such terms and conditions do not contemplate an order that leave to defend be refused after having made an order that the judgment be set aside and the proceeding be reinstated;[67]
(g) Accepting for the sake of argument that the existence of a self-executing order is a relevant matter in the exercise of the discretion under s 110, in the circumstances of this case, other matters needed to be considered, and when considered, had the result that the plaintiff should have been entitled to defend the proceeding. Those matters include:
(i) The fact that the plaintiff had filed and served a notice of defence that raised a number of substantive defences including the existence of educational agreements between the plaintiff and the Defendant and ss 37 and 38 of the Trustee Act 1958;
(ii) That the claim is a large one in excess of the court's jurisdiction (with an abandonment of the excess);
(iii) That because discovery is an ongoing obligation, there is an inherent danger in a court ever making a self-executing order; and
(h) If there is a clash between s 110 of the Magistrates' Court Act, and Rules 24.02(2), 21.01 and 21.02 of the Magistrates' Rules, the Act should prevail.
56 In addition to these matters, Mr Marantelli, on behalf of the plaintiff, submitted that the application raises a question of the interplay between Rule 21.02(b) on the one hand, and Rules 44.02 and 44.03 on the other. Order 21 says nothing expressly that locks the plaintiff (defendant below) out of a right to be heard on the issue of quantum, especially where, as here, the Defendant relies on expert evidence and, he submitted, must therefore have complied with Order 44.
57 None of the exceptions listed in Rule 44.02(1) of the Magistrates' Rules is applicable in the present case. Rule 44.03 provides that "unless otherwise provided", a party who intends at the hearing of a proceeding to adduce the evidence of a person as an expert, must not less than 30 days before the day fixed for hearing of the proceeding serve on each other party a report by the expert in accordance with sub-para (2), and deliver a copy for the use of the court.
58 The learned Magistrate found that even if Order 44 applied in the present circumstances, he would have dispensed with the need to comply with the notice provisions of that Order, pursuant to Rule 2.04 of the Magistrates' Rules.
59 Mr Marantelli submitted that such a dispensation would not, in the current circumstances, be appropriate. Those circumstances included that no application had been made by the Defendant for such a dispensation and it would have not been appropriate to grant it without first giving the plaintiff a right to be heard on the matter.
60 Accordingly it was submitted that as a matter of procedural fairness, the plaintiff was entitled to be heard on the question of quantum and that involved the right to cross-examine the Defendant's expert and adduce evidence in contradiction of that expert's evidence.
61 The plaintiff did not attack the grounds for making the order on 20 July 2012 (which struck out the defence in consequence of the court finding that the plaintiff had failed to give discovery in accordance with the Self-Executing Order made on 11 April 2012), except in the sense that by ordering that the 9 August 2012 judgment be set aside in the exercise of the discretion under s 110, then by virtue of subsection 110(2), the Magistrate is required to have a rehearing. In turn, the Magistrate cannot have a rehearing unless the order of 20 July 2012, striking out the defence, is also set aside.
62 The Defendant submitted that the Court, in considering a judicial review of the orders made on 13 September 2012, is bound by the following Court Orders made in the proceeding between the parties prior to that Order:
(a) The order made in the original Supreme Court Proceedings by Daly AsJ on 26 October 2011;[68]
(b) The Magistrates' Court order made on 11 April 2012 - the Self-Executing Order;[69] and
(c) The Magistrates' Court order dated 20 July 2012 - the Strike-Out Order and the first Rule 59.10 Application by the plaintiff.[70]
63 The Defendant emphasised the role of the Court in an application pursuant to Order 56, in particular that the power of the Court is limited to supervising inferior courts and tribunals and is not concerned with whether the decision the subject of review was fair or correct, as referred to above. The Defendant submitted that neither the originating motion nor supporting affidavit clearly articulated the foundation for the judicial review and, in particular, failed to identify any error on the face of the record or any jurisdictional error, as those expressions are used in the authorities.
64 The Defendant submitted that as the plaintiff's notice of defence had been struck out he had no claim of right to be heard, even if the judgment was set aside, unless the Self-Executing Order was also dealt with. The Defendant submitted that the plaintiff had either to have the Self-Executing Order set aside pursuant to Rule 59.10(3) of the Magistrates' Rules, as has been unsuccessfully attempted, or to seek a review in this Court of the making of or the refusal to set aside that Self-Executing Order. The Defendant submitted that the attempt to use s 110 of the Magistrates' Court Act as a means to defeat the effect of the Self-Executing Order is the cause of much of the problem in this matter.
65 In relation to the importance of dealing with the Self-Executing Order, the Defendant referred to the decision of the Full Court of this Court in Pollard v Incorporated Nominal Defendant,[71] and Brakatselos v ABL Nominees Pty Ltd & Ors.[72] In the latter case, the Full Court considered an application for leave to appeal against a refusal to set aside a self-executing order and the circumstances in which such an order should be set aside. In the course of doing so Redlich JA (Nettle and Davies JJA agreeing) said:
Where a party is precluded from pursing its claim or defence by reason of a self-executing order, the Court has always had a wide discretion to set aside or vary the self-executing order if injustice flowed from its operation even though no fault was to be found in the making of the order at the time it was made. In Jorgensen v Slater & Gordon,[73] this Court set out the principles governing the discretion to relieve a party of the consequences of noncompliance with self-executing orders:[74]
We respectfully agree with what was said by Newnes J in the Western Australia Supreme Court in MTQ Holdings Pty Ltd v Lynch as follows:
The authority of the court will equally be undermined, and the quality of justice for the innocent party eroded, if the ultimate sanction effected by the operation of a [self-executing] order can be avoided by showing that non compliance with [that] order came about by the same sort of inattention or laxity that caused the order to be made in the first place.
We would also adopt what Newnes J said regarding the considerations which should ordinarily be brought to bear in considering the exercise of this discretion. The court should have regard at least to the following matters:
(a) the circumstances in which a self-executing order was made;
(b) the reasons for non-compliance with it;
(c) the prejudice to the defaulting party if relief were not granted; and
(d) the prejudice to the innocent party if relief were granted....
As to the reasons for non-compliance, it is of the first importance to ascertain whether the failure to comply was wilful, that is, was reflective of deliberate disregard of, or indifference to, the court's order. As Browne-Wilkinson VC said in Re Jokai Tea Holdings Ltd:
The court should not be astute to find excuses for such failure since obedience to orders of the court is the foundation on which its authority is founded. But, if a party can clearly demonstrate that there was no intention to ignore or flout the order and that the failure to obey was due to extraneous circumstances, such failure to obey is not to be treated as contumelious and therefore does not disentitle the litigant to rights which he would otherwise have enjoyed.
66 The Defendant submitted that the decision of the learned Magistrate was in line with the decision of the Court of Appeal in Brakatselos, referring to the observations of Nettle JA,[75] where he said:
Given that the purpose of a self-executing order is to ensure timely compliance with a procedural requirement, and that the means of achieving it are the threat of dire consequences of failure, it would significantly undermine the utility of self-executing orders and more generally cast doubt on the integrity of the processes of the court if a party who chose not comply in time with a self-executing order could expect to be relieved from the consequences simply by demonstrating that he has since complied with the requirement and that, if the breach is not excused, he will suffer the consequences which it was intended he should suffer if he failed to comply within time.
67 The Defendant placed particular emphasis on the discretionary elements involved in an assessment of whether a self-executing order should be set aside and noted the conclusion reached by Nettle JA in Brakenselos[76] to the effect that it was a matter for the judge to assess in the exercise of their discretion, and that he was not persuaded that that assessment was not unreasonable or otherwise erroneous:
As the judge said, if the applicants had demonstrated that there was an acceptable excuse for their failure to comply with the orders, it might well have been appropriate to excuse them. But the fact is that, even with the benefit of the additional material on which the judge allowed the applicants to rely, it was not and is not open to exclude the possibility that the applicants deliberately chose not to comply within time for any of a number of reasons.
68 The application by the plaintiff under s 110 of the Magistrates' Court Act only sought to deal with the judgment. It did not, and could not, deal directly with the making of the Self-Executing Order. The learned Magistrate decided to set aside the judgment, not because that would have the effect of setting aside the Self-Executing Order, but because there was an issue with the affidavit verifying the complaint and the quantum of the damages. He determined, after assessing and weighing the relevant principles, not to set aside the Self-Executing Order nor to grant the plaintiff leave to defend the proceeding.
69 The approach of the plaintiff in this application is to say that if the requirements ordinarily shown for setting aside a judgment are satisfied, then the judgment should be set aside and, because s 110 also provides "and that the proceeding be reheard", therefore the Self-Executing Order must also be set aside, otherwise there can be no rehearing. This, the Defendant submitted, was contrary to the decision of the Court in Pollard v Incorporated Nominal Defendant,[77] which, in effect, required the plaintiff to deal both with the self-executing order and the judgment.
70 In any event, in setting aside the judgment the learned Magistrate did allow, in effect, a rehearing. That is because the only hearing available was the hearing by the court of the application by the Defendant (plaintiff below) of its application pursuant to Rule 21.02(b) for judgment.
71 In assessing the plaintiff's (defendant below) rehearing application, the learned Magistrate undertook the required assessment of all of the facts and the circumstances, and concluded that the plaintiff should not have a right to be heard, that is he should not be entitled to defend the Defendant's claim. This was, in substance, because having failed in the first application made pursuant to Rule 59.10(3), the plaintiff (defendant below) had not established any reason why the Self-Executing Order should be set aside (other than the same reasons that had been raised on the first occasion). Thus the effect of the orders made by the Magistrate was for the proceeding to revert to the position it was in the moment before the entry of judgment, and because at that time the plaintiff's defence had been struck out, he had no standing to be heard. In those circumstances even though the plaintiff was successful in its application, he had no right to defend or to be heard on the issue of the quantum of the Defendant's claim.
72 In response to the contention by the plaintiff that even if he had no right to defend the proceeding, he should have the right to be heard on the assessment of the quantum of the damages, the Defendant submitted that the Magistrates' Rules did not provide for such a right or for such a hearing to be had on the assessment of damages.
73 The Defendant also submitted that the jurisdiction under s 110 was not attracted because the plaintiff was not a person "who did not appear in the proceeding" within the meaning of s 110. The Defendant submitted that by the plaintiff filing his notice of defence and by appearing, both by counsel, and in person, at the mediation and several interlocutory hearings, the plaintiff had appeared in the proceeding. The only part of the proceedings in which the plaintiff did not appear was the assessment of damages made under Order 21. In relation to that, because the plaintiff's defence was struck out, he had no right to appear.
74 The Defendant further submitted, in the alternative, that if the application under s 110 was open, then it should be viewed as a second application under Rule 59.10. In this respect the Defendant relied upon the decisions, referred to above, of Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd[78] and Racovalis v Rescom Mortgages Pty Ltd.[79] In the latter case, the Court of Appeal noted that Judge Ginnane of the County Court (as he then was) had correctly identified the applicable principles. The question was whether it was in the interests of justice to permit a second application to set aside a default judgment. The considerations relevant to whether such a second application is an abuse of process vary from case to case, but will usually include:
(a) The effect on the party who having been successful in opposing the first application, is faced with a second application;
(b) The effect of any delay in making a second application;
(c) Whether there was an explanation for the new material not being provided to the Court in the earlier application;
75 The evils of permitting a second application include:
(d) The diminution of certainty of the conduct by litigants of their affairs; and
(e) Adverse consequences to the administration of justice.
76 The Defendant submitted that the learned Magistrate applied these principles correctly in the exercise of his discretion and found that the plaintiff's application under s 110, insofar as it involved setting aside the Self-Executing Order, was an abuse of process.[80]
77 In my opinion the learned Magistrate has not made any error constituting an error on the face of the record, nor any jurisdictional error, in arriving at his decision. My reasoning follows.
78 In the construction of s 110 of the Magistrates' Court Act it is important to understand that, unlike proceedings in the County Court or the Supreme Court, no Notice of Appearance is filed in the Magistrates' Court. Only a Notice of Defence is required. It is the failure to file a Notice of Defence alone which entitles a plaintiff to proceed to enter default judgment under the Magistrates' Rules. By contrast, in the County Court and the Supreme Court an appearance must first be filed and, if it is not, judgment in default of appearance may be entered.
79 Thus, in s 110 the expression "a person who did not appear in the proceeding", as Justice Batt (as he then was) observed in Kinex Exploration Pty Ltd v Tasco Pty Ltd,[81] is apt to apply to two kinds of final orders. First, orders made without any hearing on the merits in default of filing a Notice of Defence and, secondly, orders after a hearing on the merits where the party did not appear at the hearing. As his Honour observed in that case (at 322) this construction is certainly consistent with and is reflected in the Rules of Court (then Rule 30.02(1) and Form 30A of the Magistrates' Court Civil Procedure Rules 1989, and now Rule 46.08 and 46.09 of the Magistrates' Rules and Form 46B). In the case of the earlier Rules, they had retrospective statutory approval under s 16(5) of the Magistrates' Court Act and the current Magistrates' Rules are in substantially the same form as those Rules.
80 In Kinex[82] Batt J construed s 110 consistently with the approach adopted in decisions concerning applications in superior courts to set aside judgments as enabling a plurality of applications for the setting aside of orders. This involves the same approach by the Court as that adopted by the High Court in Carr v Finance Corporation of Australia Ltd (No.1),[83] where Mason J (as he then was) considered that there was a generally accepted principle that the refusal of an application to set aside a default judgment is not a bar to the making of a fresh application. This had the consequence that a decision under s 110 to refuse to set aside an order was not a final order for the purposes of s 109 of the Magistrates' Court Act.
81 This construction of s 110 adopted by Batt J in Kinex,[84] supports the approach taken by the Magistrate in relation to the meaning of the expression "a person who did not appear in the proceeding". He concluded that the submission by the Defendant that this was not a case where the plaintiff (defendant below) was a person who did not appear in the proceeding was too narrow a construction of that section.
82 A practitioner in the Supreme and County Courts reading s 110 might be tempted to treat the expression "did not appear in the proceeding" as relating to the entry of an Appearance. But there is no proper justification for that construction. The natural and ordinary meaning of the words "appear in the proceeding" comprehend both no appearance in the proceeding as a whole or no appearance at a particular event in the proceeding which has led to the final order in question.
83 Accordingly, even though there was no challenge by the Defendant to this construction adopted by the Magistrate, it seems to me that the three conditions for the exercise of the powers of the Court under s 110 (namely (a) a final order, (b) made by the Court in a civil proceeding, and (c) against a person who did not appear in the proceeding) was satisfied as there was no appearance by the plaintiff (defendant below) at the time judgment was entered on 9 August 2012, and it is that judgment which was the subject of the application.
84 The whole underlying thesis of the plaintiff's contentions referred to in paragraphs 55(a)-(f) above involves placing too much weight on that part of s 110 which required (if the order is set aside) "that the proceeding be reheard". As I have made plain in my account of the plaintiff's submissions, it is this requirement of the section that brought with it, according to the plaintiff's interpretation, the necessity for the order lying behind the judgment (the Self-Executing Order) also to be set aside. In my view that proposition does not follow for a number of reasons.
85 First, as the Defendant submitted, the decision of the Full Court of the Supreme Court in Pollard v Incorporated Nominal Defendant,[85] is a fundamental obstacle in the way of the plaintiff's contention. The Self-Executing Order, once it took effect, attracted the well-established general rule that once an order of the Court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made, then the Court which made the order has no jurisdiction to alter it.[86]
86 Rule 59.10 of the Magistrates' Rules provides a specific exception to this general rule. Section 110 provides another exception, providing of course the order concerned is a final order and the other conditions are satisfied. In this case, those conditions could not be satisfied in an application to set aside the Self-Executing Order because the plaintiff (defendant below) appeared at the hearing which led to the Self-Executing Order, and at the hearing in which non-compliance with that order was confirmed.
87 Applied to the facts of this case, the decision of the Court in Pollard[87] has the effect that the only way in which the plaintiff could escape the consequences of the Self-Executing Order was by having that order varied or reversed by application pursuant to the provisions contained in Rule 59.10 of the Magistrates' Rules. In addition, it may have been possible to review that decision pursuant to Order 56 but, assuming the Self-Executing Order not to be a final order, no appeal would be available under s 109 of the Magistrates' Court Act.
88 The plaintiff did exercise its right to apply under Rule 59.10(3), but on 20 July 2012 failed in that endeavour.
89 Secondly, it does not follow from these exceptions to the general rule that an application to set aside the judgment of 9 August 2012 brings with it the necessity that if that judgment is set aside so too is the earlier Self-Executing Order and the Strike-Out Order (directing the Registry to record that the plaintiff's notice of defence was struck out as at 3 May 2012 for noncompliance of the order on 11 May 2012). The re-hearing required by s 110 is capable of being satisfied by the orders in fact made by the Magistrate for - in effect - a re-hearing of the Defendant's application for orders under Rule 21.01.
90 Thirdly, and in any event, there was no occasion established on the facts before the Magistrate to set aside the Self-Executing Order or the direction to the Registry. The observations of the Court of Appeal in Brakatselos v ABL Nominees Pty Ltd,[88] are apt.[89] The circumstances identified by Newns J[90] in the Western Australian decision referred to by the Court of Appeal in Brakatselos (being MTQ Holdings Pty Ltd v Lynch)[91] include the circumstances in which the self-executing order was made, the reasons for the non-compliance and the balance of prejudice suffered by the parties.
91 The reasons for the refusal by the learned Magistrate to set aside the Self-Executing Order on 20 July 2012 are not before the Court. But it was not in dispute that the material advanced in the application pursuant to Rule 59.10(3) that was before the Magistrate on 20 July 2012 was no different to the material before the Magistrate in the application made pursuant to s 110. In those circumstances, the learned Magistrate was correct in his conclusion that this was not a case where a second application to set aside a default judgment, in this case a self-executing order, was appropriate. As Judge Ginnane observed in Racovalis v Rescom Mortgages Pty Ltd,[92] approved by the Court of Appeal in Racovalis v Rescom Mortgages Pty Ltd:[93]
[41] In my opinion, I should follow the approach of Hargrave J and determine the question of whether there is an abuse of process by deciding whether it is in the interests of justice to permit the first defendant to make a second application to set aside the default judgement.
[42] The considerations relevant to the determination of whether a second application to set aside a default judgment is an abuse of process will vary from case to case. They will usually include the effect on a party who, having been successful in opposing an application, is faced with a second application, particularly soon after the dismissal of the first; whether there was an explanation for new material being provided to the Court, the nature of the material provided to the Court and whether a fair trial can be held. The evils of permitting a second application were identified by Hayne J.A. in D A Christie Pty Ltd v Baker as including the risk of conflicting decisions, the unnecessary vexing of respondents, judge-shopping and the diminution of certainty in the conduct by litigants of their affairs and unacceptable consequences to the administration of justice (citations omitted).
92 There is, in my view, no identifiable error in the approach taken by the Magistrate in the exercise of his discretion not to require the Defendant to put the plaintiff on notice of the application for judgment in default of defence that warrants the grant of an order in the nature of certiorari. The plaintiff's point in this regard seems to me to amount to the proposition that a defendant whose notice of defence is struck out and who is placed in the position where he is taken to be a defendant who, being required to serve a defence, does not do so, has a right to be given notice of the application under Rule 21.02(b) of the Magistrates' Rules, and to be heard on the assessment of damages that takes place pursuant to that Rule. No authority was cited in support of that proposition.
93 In this respect the provisions of Order 21 of the Magistrates' Rules are different from the corresponding provisions in the Supreme Court and County Court Rules. Where the claim in question is neither for a debt or liquidated demand or a claim arising from a motor vehicle collision, Rule 21.02(b)(ii) requires an affidavit or affidavits verifying the complaint and the nature and extent of the injury, loss or damage suffered by the plaintiff. In such a case, the Registrar must refer the matter to the Court for decision and it is then for the Court to determine the appropriate steps to be undertaken. The Court may make the order sought in the application, direct that further affidavit or affidavits be filed, give directions as to the application, or refuse to make the application sought.
94 The Magistrates' Court has, by virtue of Rule 21.04, the power to order that the defendant be given notice of the application for judgment where, as in this case, it involved an assessment of damages. But in contrast with the provisions in the Supreme and County Courts, it is not required to do so. Under the corresponding rule in this Court (Rule 21.03 of the Supreme Court Rules)[94] the assessment of damages is required to be made by an Associate Judge, unless the Court otherwise orders, in accordance with Rule 51.02 of those Rules. Rule 51.02(1) provides that the party against whom the damages are to be assessed may take part in the assessment. Sub-rule (2) requires the moving party to give notice to the other party of the day, time and place of the assessment.
95 Thus, because the Magistrates' Rules do not require that notice be given to a defendant of an application for 'an order' (a judgment) under Rule 21.01, even though that may involve an assessment of damages, whether notice of the hearing of such an application is required is a matter within the discretion of the Magistrates' Court.
96 There was no direct challenge to the Order of the Magistrate on the basis that he should have required the Defendant (plaintiff below) to put the plaintiff (defendant below) on notice of the hearing on 9 August 2012 at which judgment was given, or after setting that judgement aside, requiring the Defendant to put the plaintiff on notice of the hearing of the application for the judgment that was ultimately entered on 15 March 2013. But it is inherent in the grounds advanced that in setting aside the judgment of 9 August 2012 and refusing a rehearing that permitted the plaintiff to attend, the plaintiff is saying, in effect, that the Magistrate was in error in not requiring the Defendant to put the plaintiff on notice of the hearing leading to the judgment.
97 If this were an appeal, the Court would not ordinarily interfere with the exercise of discretion unless it were satisfied that by reason of some error, whether of fact or law, the Magistrate had not only taken a different view from that which the Court would have taken if it had been in his place, but that he had failed properly to exercise the discretion committed to him. A mere preference for a different result is an insufficient basis for interference with the exercise of the Magistrate's discretion. Further, the Order of the Magistrate in this regard pertained to matters of practice and procedure. In those circumstances, the restraint which the Court should exercise in reviewing the order is even greater.[95]
98 The reasoning of the Magistrate in rejecting the right to be heard on the question of quantum does not disclose error, in my view. He reasoned that, whilst it was conceivable that the judgment entered on 9 August 2012 could be set aside and the plaintiff (defendant below) could be granted leave to defend the quantum of the claim, to do that where the defence was struck out for non-compliance with orders concerning the discovery of documents relating to that quantum, and where it was the second application of that character, was unfair, not in the interests of justice and would undermine the orders of the Court.
99 The contention by the plaintiff that by his Order the Magistrate quarantined his discretion is, in my view, without foundation. What the plaintiff seems to have consistently ignored in his submissions is that an attack on the judgment cannot be an attack on the preceding Self-Executing Order simply by virtue of the presence of the requirement for a rehearing. Strictly speaking what the Magistrate ordered involved a rehearing of the application for judgment that was entered on 9 August 2012. That it did not involve participation by the plaintiff (defendant below) is a consequence of the operation of the Rules in the Magistrates' Court.
100 Having regard to the basis upon which the Magistrate set aside the judgment of 9 August 2012, being the wrongful admission of the hearsay evidence of the accounting expert, it is not correct to contend, as the plaintiff does, that setting aside the judgment and reinstating the proceeding is futile. Quite the contrary, the decision of the Magistrate that there was error in the admission of that evidence and that in consequence the entry of judgment was irregular necessitated that the judgment be set aside and that the Defendant (plaintiff below) prove the quantum of her entitlement compensation by admissible evidence. That was the only error the Magistrate found in the entry of the judgment that warranted an order to set aside the judgment.
101 The decision of the Magistrate to limit the order setting aside the judgment in the exercise of his discretion under s 110 is a reflection of the purpose of a self-executing order. The purpose is, as Nettle JA observed in Brakatselos,[96] to ensure timely compliance with the procedural requirements. The Magistrate was right not to set aside the Self-Executing Order in the circumstances of this case because that would significantly undermine the utility of the Self-Executing Order, not to mention the fact that it had already been the subject of an application to set it aside based upon substantially the same material as was before the Magistrate for the purposes of the impugned decision.
102 There is no clash between s 110 of the Act, and Rules 24.02(2), 21.01 and 21.02 of the Magistrates' Rules. The requirement for a re-hearing in s 110 can, and in this case, does work consistently with those Rules. The re-hearing ordered is not a re-hearing of the whole proceeding. It is a re-hearing of that part of the proceeding which there is a call to re-hear in consequence of the setting aside of the judgment entered on 9 August 2012. What is to be re-heard is the application for judgment under Rule 21.01 in accordance with the requirements of Rule 21.02(b) where the plaintiff is in the position where he has not filed a Notice of Defence.
103 There is in my view no error arising out of the interplay between Rule 21.02(b) on the one hand, and Rules 44.02 and 44.03 on the other. As I have said, Order 21 differs from the provisions of the Supreme Court and County Court Rules in relation to the rights of a defendant to attend on an assessment of damages. Whether the defendant is entitled to attend an assessment of damages under the Magistrates' Rules turns on the exercise of the discretion of the Magistrate. It is incorrect to say that the defendant is locked out of a right to be heard on the issue of quantum. There is - in the light of the existence of the Self-Executing Order and the failed attempt to set it aside under Rule 59.10 - no reason to conclude the discretion of the Magistrate to proceed as he did was not exercised having regard to all the relevant matters, and did not take into account any irrelevant matters.
104 The proposition advanced by the plaintiff, that the provisions of Order 44 must apply where the application for the order (or judgment), an assessment of damages in effect, is not otherwise required by the Rules to be on notice to the defendant, is in my view unsustainable. At worst it is a matter within the discretion of the Magistrate and there is nothing to indicate that he did not exercise that discretion properly.
105 Therefore, in my view, the Magistrate did not fall into error when he refused the application for the rehearing to go further than a rehearing of the application for judgment pursuant to Rules 21.01 and 21.02(b) of the Magistrates' Rules.
106 In my view, it has not been established that the learned Magistrate fell into any jurisdictional error. There was no mistaken denial of jurisdiction in his decision not to set aside the Self-Executing Order. Similarly, there was no mistaken assumption of jurisdiction in the setting aside of the judgment pursuant to s 110, or any other power enabling, because of the wrongful admission of the hearsay evidence of the expert accountant.
107 In this case the Magistrate has identified the relevant issues, has formulated the relevant questions and determined what are and what are not the facts and circumstances relevant to his decision. These are the routine steps in the discharge of that ordinary jurisdiction of the Magistrates' Court. If, contrary to my view, there is a mistake in the identification of the issues or the formulation of the questions by the Magistrate, who is entrusted with authority to identify, formulate and determine those issues and questions, that does not constitute jurisdictional error in this case.
108 There is in this application a further discretionary reason why relief in the nature of certiorari should not be granted. It is in the public interest that there should be an end to litigation. It must be recalled in this regard that the plaintiff applied to set aside the Self-Executing Order that was made after his failure to comply with orders of the court, and failed. He then applied to set aside the judgment that followed from that Order, and succeeded to the limited extent of having the order of 9 August 2012 set aside, which in this context amounted to a failure because the plaintiff was not entitled to defend the application for judgment that followed, whether as to liability or quantum. In its effect, this application is another attempt to undo the consequences of his own failure to comply with earlier orders of the Magistrates' Court in circumstances where no new facts are advanced.
109 For these reasons the plaintiff's application for orders in the nature of certiorari and prohibition fails. The proceeding will be dismissed with costs.
Objections to Affidavit of the Plaintiff sworn 28 February 2013
Conclusion, Misleading. The real objection was to a statement that contradicted the Magistrate's order.
Objection upheld. Statement of conclusion unsupported by any facts.
Quotations attributed to Mr Staalkjaer and Magistrate Braun
Upheld, irrelevant. Further, accepted to be inaccurate: see transcript before Magistrate Braun at CB 160.
Rejected. Uncontroversial facts, and facts that are common ground.
Relevance, Conclusion, Assuming Facts not in Evidence, Opinion
Rejected, introductory to the following paragraphs.
Relevance, Assuming Facts not in Evidence, Opinion, Conclusion
Rejected, relevant to establishing a defence to the claim on the merits, and direct factual evidence.
Conclusion, Relevance, Assuming Facts not in Evidence, Opinion, Misleading
Rejected, relevant to establishing a defence to the claim on the merits, and direct factual evidence.
Relevance, Assuming Facts not in Evidence, Opinion, Conclusion
Rejected, relevant to establishing a defence to the claim on the merits and direct factual evidence.
The Relevant Provisions of the Magistrates' Act and Rules
Section 110 of the Magistrates' Court Act 1989 provides:
(1) If a final order is made by the Court in a civil proceeding against a person who did not appear in the proceeding, that person may, subject to and in accordance with the Rules, apply to the Court for an order that the order be set aside and that the proceeding be re-heard.
(2) On an application under this section, the Court may set aside the order subject to any terms and conditions that it thinks just and re-hear the proceeding.
By rule 1.15 of the Magistrates' Rules it is provided, so far as relevant, that:
1.15 Procedure wanting or in doubt
(1) If the manner or form of the procedure -
(a) for commencing, or for taking any step, in a proceeding; or
(b) by which the jurisdiction, power or authority of the Court is exercisable -
is not prescribed by these Rules or by or under any Act, or for any other reason there is doubt as to the manner or form of that procedure, the Court must determine what procedure is to be adopted and may give directions.
(2) An act done in accordance with a determination or direction under paragraph (1) is regular and sufficient.
Order 21 of the Magistrates' Rules sets out the procedure for obtaining an order in default of defence. Relevantly that Order provides:
21.01 Plaintiff may apply for order
(1) If a defendant does not give notice of defence within 21 days after the service of a complaint or of the giving of leave to defend, or within any other time fixed by the Court for giving notice of defence, the plaintiff may apply for an order.
(2) [not relevant]
21.02 Affidavit required
An application under Rule 21.01 to which Rule 21.01(2)(a) applies must be filed with the registrar and must be accompanied by -
(a) if the claim -
(i) is for a debt or liquidated demand; or
(ii) is a claim arising from a motor vehicle collision and the claim is - [Not relevant]
(b) in any other case -
(i) an affidavit or declaration of service of the complaint;
(ii) an affidavit or affidavits verifying the complaint and the nature and extent of the injury loss or damage suffered by the plaintiff.
21.04 Registrar may make order or refer to Court
[sub-rules (1) - (3) not relevant]
(4) If an application has been made to which Rule 21.02(b) applies, the registrar must refer the matter to the Court for decision.
(5) If the registrar refers an application to the Court, the Court may -
(a) make the order sought in the application;
(b) direct that a further affidavit or affidavits be filed;
(c) give directions as to the application;
(d) refuse to make the order sought in the application;
(e) make any other order it considers appropriate.
21.07 Setting aside order
Subject to Rule 46.08, the Court may set aside or vary any order made in accordance with this Order.
Order 24 of the Magistrates' Rules provides, so far as relevant, as follows:
(1) Where a party fails to comply with an order to give particulars of any pleading or with an order for the discovery or inspection of documents or for answers to interrogatories, the Court may order -
(a) if the party is the plaintiff, that the proceeding be dismissed;
(b) if the party is a defendant, that the defendant's defence, if any, be struck out.
(2) A defendant whose defence is struck out in accordance with paragraph (1)(b) must, for the purpose of Rule 21.01(1), be taken to be a defendant who, being required to serve a defence, does not do so within the time limited for that purpose.
Order 44 of the Magistrates' Rules provides, so far as relevant, as follows:
44.01 Definitions
In this Order, unless the context or subject matter otherwise requires -
expert means a person who has specialised knowledge based on the person's training, study or experience;
opinion includes more than one opinion;
the code means the expert witness code of conduct in Form 44A.
44.02 Application
(1) This Order does not apply to the following -
(a) the evidence of a party who would, if called as a witness at the hearing of a proceeding, be qualified to give evidence as an expert in respect of any question in the proceeding;
(b) a person engaged as an expert before commencement of these Rules;
(c) any itemised quotation or assessment attached to a complaint under Rule 5.05(2) or (3);
(d) an arbitration of a complaint, where the complaint has been referred to arbitration by the Court under section 102 of the Act.
44.03 Report of expert
(1) Unless otherwise provided, a party who intends at the hearing of a proceeding to adduce the evidence of a person as an expert must -
(a) as soon as practicable after the engagement of the expert and before the expert makes a report under this Rule, provide the expert with a copy of the code; and
(b) in the case of evidence to be adduced by an expert as to the cost of repairs to or replacement of a motor vehicle [Not relevant].
(c) in any other case, not later than 30 days before the day fixed for the hearing of the proceeding, serve on each other party, a report by the expert in accordance with paragraph (2) and deliver a copy for the use of the Court.
(2) The report must state the opinion of the expert and must state, specify or provide -
(a) the name and address of the expert;
(b) an acknowledgement that the expert has read the code and agrees to be bound by it;
(c) the qualifications of the expert to prepare the report;
(d) the facts, matters and assumptions on which the opinion is based (a letter of instructions may be annexed);
(e) in relation to the opinion -
(i) the reasons for the opinion;
(ii) any literature or other materials utilised in support of the opinion;
(iii) a summary of the opinion;
(f) (if applicable) that a particular question, issue or matter falls outside the expert's field of expertise;
(g) any examinations, tests or other investigations on which the expert has relied, identifying the person who carried them out and that person's qualifications;
(h) a declaration that the expert has made all the enquiries which the expert believes are desirable and appropriate, and that no matters of significance which the expert regards as relevant have, to the knowledge of the expert, been withheld from the Court;
(i) any qualification of an opinion expressed in the report without which the report is or may be incomplete or inaccurate;
(j) whether an opinion expressed in the report is not a concluded opinion because of insufficient research or insufficient data or for any other reason.
(3) If the expert provides to a party a supplementary report {not relevant].
(4) Any report provided by the expert pursuant to this Rule must be signed by the expert and must be accompanied by clear copies of any photographs, plans, calculations, analyses, measurements, survey reports or other extrinsic matter to which the report refers.
Rule 46.08 and 46.09 of the Magistrates' Rules provides:
46.08 Application for re-hearing
(1) An application under section 110 of the Act must be filed.
(2) At least 14 days before the day specified in the application, a copy of the application and of any affidavit in support upon which the applicant intends to rely must be served on the other party or parties at the address for service in the complaint or notice of defence (as the case may be) unless the Court otherwise orders.
(3) If an application is struck out because the applicant failed to appear at the time fixed for hearing of the application, a further application for re-hearing is taken to be an application for leave to re-apply under section 110(5) of the Act.
46.09 Form of application
(1) An application under Rule 46.08 must state -
(a) why the applicant did not appear on the hearing of the complaint; and
(b) if applicable, why notice of defence was not given.
(2) An application under Rule 46.08 must be in Form 46B.
(1) In this Rule, self-executing order means an order that upon the failure of a party to do any act or take any step which under these Rules the party is required to do or take or to comply with an order that the party do any such act or take any such step -
(a) if the party is a plaintiff, that the complaint be dismissed;
(b) if the party is a defendant, that the notice of defence of the party, if any, be struck out.
(2) A defendant whose defence is struck out upon the failure to comply with a self-executing order is, for the purpose of Part 1 of Order 21, taken to be a defendant who does not give notice of defence.
(3) The Court may set aside or vary, as the case requires
(a) a self-executing order;
(b) the dismissal of a complaint upon the failure of a plaintiff to comply with a self-executing order;
(c) the striking out of a notice of defence upon the failure of a defendant to comply with a self-executing order;
(d) an order made under Rule 21.01 upon the failure of a defendant to comply with a self-executing order;
(e) an order made under Rule 21.08 upon the failure of a plaintiff to comply with a self-executing order.
Rule 21.03 of the Supreme Court Rules provides, so far as relevant, as follows:
(1) Where a claim is made for the recovery of a debt, damages or any property, whether or not another claim is also made in the proceeding, and the plaintiff is entitled to judgment on that claim against any defendant in accordance with Rule 21.01 or Rule 21.02, the plaintiff may -
(a) for the recovery of a debt, enter final judgment against that defendant for an amount not exceeding the amount claimed in the writ or, if the plaintiff has served a statement of claim, the amount claimed in the statement of claim, together with interest from the commencement of the proceeding to the date of the judgment -
(i) on any debt which carries interest, at the rate it carries;
(ii) on any other debt, at the rates payable on judgment debts during that time;
(b) for the recovery of damages, enter interlocutory judgment against that defendant for the damages to be assessed;
...
(2) Upon entering judgment under paragraph (1) the plaintiff may also enter judgment for costs.
[1] Originally filed on 12 October 2012 and amended most recently on 4 October 2013.
[2] The Complaint was filed on 15 November 2011.
[3] Exhibit MS JR-01 to the affidavit of Michael Staalkjaer sworn 15 April 2013, CB p.270.
[5] Exhibit MS JR-03 to the affidavit of Michael Staalkjaer sworn 15 April 2013, CB p.277.
[6] Exhibit MS JR-04 to the affidavit of Michael Staalkjaer sworn 15 April 2013, CB p.279.
[7] The text of rule 59.10 is set out in the Schedule to these reasons.
[8] The text of rule 59.10 is set out in the Schedule to these reasons.
[9] Exhibit MS JR-04 to the affidavit of Michael Staalkjaer sworn 15 April 2013, CB p.279.
[10] The relevant provisions of Order 21 are set out in the schedule.
[11] Section 110 and the relevant provisions of Order 59 are set out in the schedule.
[12] Transcript of hearing on 12 September 2012, at CB 144-145.
[13] Transcript of hearing on 12 September 2012, at CB 146-148.
[16] Transcript of hearing on 12 September 2012, at CB 148-149.
[20] Transcript of hearing on 12 September 2012, at CB 157-158.
[21] Transcript of hearing on 12 September 2012, at CB 159.
[22] As set out in, for example, Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596.
[23] Transcript of hearing on 13 September 2012, at CB 204-206.
[26] Transcript of hearing on 12 & 13 September 2012, Exhibit DG-8 to the affidavit of DM Gill sworn 28 February 2013, Ruling, CB 225, 231-235.
[27] Transcript of hearing on 12 & 13 September 2012, Exhibit DG-8 to the affidavit of DM Gill sworn 28 February 2013, Ruling, CB 228-230.
[28] Transcript of hearing on 12 & 13 September 2012, Exhibit DG-8 to the affidavit of DM Gill sworn 28 February 2013, Ruling, CB 231-235.
[29] Transcript of hearing on 12 & 13 September 2012, Exhibit DG-8 to the affidavit of DM Gill sworn 28 February 2013, CB 180, Ruling, CB 233-4.
[30] Transcript of hearing on 12 & 13 September 2012, Exhibit DG-8 to the affidavit of DM Gill sworn 28 February 2013, Ruling, CB 234.
[31] [1980] HCA 13; (1980) 144 CLR 13, 35-6.
[34] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6; see also, by way of example, Stojanoski v Northern Meat & Poultry Supplies Pty Ltd & Anor [2001] VSC 229, Per Gillard J at [30]-[33]; Velissaris v The Magistrates' Court of Victoria & Anor [2013] VSC 23 per Macaulay J at [12].
[35] Randall v Wheeler (Victorian Supreme Court, Fullagar J, No 4550/91, 27 March 1991, unreported, BC9100737); O'Dea v Magistrates' Court of Victoria (Victorian Supreme Court, Gillard J, No 6198/98, 20 July 1998, unreported, BC9804998); Lednar v Magistrates' Court (2000) 117 A Crim R 396; [2000] VSC 549; Stewart v Building Practitioners Board [2001] VSC 349.
[36] Kay v DPP (Cth) [2003] VSC 264.
[37] Stojanoski v Northern Meat & Poultry Supplies Pty Ltd & Anor [2001] VSC 229, [34] per Gillard J; Kuek v Wellens [2000] VSC 326.
[38] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6; see also Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199; (2010) 30 VR 141, [60]; Velissaris v The Magistrates' Court of Victoria & Anor, [2013] VSC 23.
[39] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6; Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199; (2010) 30 VR 141, [60].
[40] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6.
[41] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 175-6; Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199; (2010) 30 VR 141, [60].
[42] [1995] HCA 58; (1995) 184 CLR 163, 176-9.
[43] In part this summary is taken from the judgment of Vickery J in Metacorp Australia Pty Ltd v Andeco Construction Group Pty Ltd [2010] VSC 199; (2010) 30 VR 141, [61].
[44] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177.
[45] [1968] UKHL 6; [1969] 2 AC 147, 171.
[46] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 182.
[47] [1995] HCA 58; (1995) 184 CLR 163 at 181 and the cases at footnote 73.
[48] Thompson v Judge Byrne (1998) 2 VR 274, 280; RSL v Liquor Licensing Commission, [1999] VSCA 37; (1999) 2 VR 203, 209; Kuek v Wellens [2002] VSCA 31, [14].
[49] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 181-2.
[50] Sidebottom v County Court of Victoria [2001]VSC 18.
[51] Waterside Workers' Federation of Australia v Gilchrist, Watt & Sanderson Ltd [1924] HCA 61; (1924) 34 CLR 482, 517-8; Coles v Wood [1981] 1 NSWLR 723, 724, 727; Victoria Legal Aid v County Court of Victoria [2004] VSCA 113; (2004) 9 VR 686, 691 ([9]); [2004] VSCA 113, [9].
[52] Aronson & Groves, in Judicial Review of Administrative Action, 5th Ed at [12.270].
[53] (2001) 3 VR 289; [2001] VSCA 80, [16]-[20].
[54] Aronson & Groves, in Judicial Review of Administrative Action, 5th Ed at [12.280-12.300].
[55] Mann v Medical Practitioners Board of Victoria [2004] VSCA 148.
[56] Kinex Exploration Pty Ltd v Tasco Pty Ltd [1995] VicRp 58; [1995] 2 VR 318 (cited with approval in Racovalis v Rescom Mortgages Pty Ltd [2010] VSCA 55, [24]); see Williams, Civil Procedure Victoria, Vol 3, MC 110.0, p. 55,352
[57] Guss v Johnstone (VSC, Beach J, No 4038/1994, 23 March 1994, unreported); Kinex Exploration Pty Ltd v Tasco Pty Ltd [1995] VicRp 58; [1995] 2 VR 318.
[58] Murphy v Lamond (VSC, Hedigan J, No 8609/91, 16 July 1992, unreported, BC9203037); Ioannidis v Guardian Holdings Pty Ltd (VSC, Smith J, No 7352/94, 16 December 1994, unreported, BC9406258) ; Guss v Johnstone (VSC, Beach J, No 4038/1994, 23 March 1994, unreported); Musashi Pty Ltd v Foody [1999] VSC 67; BC9901146; see Williams, Civil Procedure Victoria, Vol 3, MC 110.5, p. 55,353.
[59] R v Hibble; Ex parte BHP Co Ltd [1920] HCA 83; (1920) 28 CLR 456, 463 (per Knox CJ and Gavan Duffy J).
[60] Aronson & Groves, in Judicial Review of Administrative Action, 5th Ed, paragraph 12.20
[61] R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co, [1924] 1 KB 171, 206 (per Atkin LJ).
[63] Transcript 4 October 2013, p. 12-15.
[64] Plaintiff's outline of argument, 10 May 2013, [13] and [14].
[65] Plaintiff's outline of argument, 10 May 2013, [13].
[66] Plaintiff's outline of argument, 10 May 2013, [15].
[67] Plaintiff's outline of argument, 10 May 2013, [16].
[68] Exhibit MS JR-01 to the affidavit of Michael Staalkjaer sworn 15 April 2013, CB p.270.
[69] Exhibit MS JR-03 to the affidavit of Michael Staalkjaer sworn 15 April 2013, CB p.270.
[70] Exhibit MS JR-04 to the affidavit of Michael Staalkjaer sworn 15 April 2013, CB p.270.
[74] Ibid [10]-[12] (Maxwell ACJ and Forrest AJA) (Citations omitted).
[75] [2012] VSCA 231; (2012) 36 VR 490, 505.
[76] [2012] VSCA 231; (2012) 36 VR 490, 505.
[81] [1995] VicRp 58; (1995) 2 VR 318, 321.
[83] [1981] HCA 20; (1981) 147 CLR 246, 254-6.
[86] Pollard v Incorporated Nominal Defendant [1972] VicRp 110; [1972] VR 955 at 961-2; Bailey v Marinoff [1971] HCA 49; (1971) 45 ALJR 598.
[88] [2012] VSCA 231; (2012) 36 VR 490, 502.
[90] At the time his Honour was Master Newns.
[92] [2009] VCC 1530, [41]-[42].
[93] [2010] VSCA 55, [30].
[94] The text of rule 21.03 of the Supreme Court Rules is set out in the Schedule to these reasons.
[95] Mace v Murray [1955] HCA 2; (1955) 92 CLR 370, 378; Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, 535; House v R [1936] HCA 40; (1936) 55 CLR 499; Knorr v CSIRO [2014] VSCA 84, [40].
[96] [2012] VSCA 231; (2012) 36 VR 490, 505.
Gill
Gill [2014] VSC 250
(1980) 144 CLR 13
(1995) 184 CLR 163
(2010) 30 VR 141
(1998) 2 VR 274
(1999) 2 VR 203
(1924) 34 CLR 482
(2004) 9 VR 686
(2001) 3 VR 289
(1920) 28 CLR 456
(2012) 36 VR 490
(1995) 2 VR 318
(1981) 147 CLR 246
(1971) 45 ALJR 598
(1955) 92 CLR 370
(1986) 161 CLR 513
(1936) 55 CLR 499