The Nature of the Hearing in the Present Case
79The judgment against the appellant in favour of the respondents was entered by consent. In general, a judgment that has been entered cannot subsequently be challenged. As was said by Barwick CJ in Bailey v Marinoff, at 130:
"Once an order disposing of a proceeding has been perfected by being drawn up as the record of a court, that proceeding apart from any specific and relevant statutory provision is at an end in that court and is in its substance, in my opinion, beyond recall by that court. It would, in my opinion, not promote the due administration of the law or the promotion of justice for a court to have a power to reinstate a proceeding of which it has finally disposed."
See also Gamser v The Nominal Defendant [1977] HCA 7; 136 CLR 145, at 154, per Aickin J (with whom Barwick CJ, Gibbs and Stephen JJ agreed); DJL v The Central Authority [2000] HCA 17; 201 CLR 226, at 245 [38], per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.
80However, a judgment that has been entered is not unassailable. It may be challenged on the ground that it was obtained by fraud or mistake or by an agreement which is void or voidable: Permanent Trustee Co (Canberra) Ltd v Stacks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45, at 48, per Brennan J. In DJL v Central Authority, the plurality said (at 245 [37]) that where a judgment is sought to be impeached for fraud, the "preferable course" is to institute separate proceedings. Other authorities seem to go further, suggesting that unless a statute or the rules permit an application to be made in the same proceedings which resulted in the judgment, the application to set aside a judgment on these grounds must be made in separate proceedings. Thus in Permanent Trustee v Stack & Holdings, Brennan J stated (at 48) the principle as follows:
"When the litigant has a right to set aside the judgment on the ground of fraud, however, the fraud must be alleged in a fresh action brought to try the issue ... Similarly, where the judgment is entered by consent, and a party alleges that the agreement pursuant to which the judgment was entered is void or voidable ..." (Emphasis added.)
See also Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691, at 696-697, per Handley JA (with whom Mahoney and Clarke JJA agreed) (a case of alleged fraud); Ainsworth v Wilding [1896] 1 Ch 673 (alleged mistake); Kinch v Walcott [1929] AC 482, at 494 (alleged fraud); Teoh v Hunters Hill Council (No 5) [2012] NSWCA 75, at [11]-[16], per curiam (alleged fraud).
81It is not necessary to consider whether the application to set aside the judgment in the present case should have been brought in separate proceedings as no objection has been taken to the form of the proceedings. The significant point for present purposes is that the appellant sought an order setting aside the judgment because the agreement consenting to judgment had been entered into by Mr Carbone without the appellant's authority. On appeal, Mr Dubler characterised the appellant's claim as an entitlement to have the judgment set aside ex debito justitiae because both the purported agreement and the consent judgment were nullities: cf AVS Australian Venue Security Services Pty Ltd v Criminale [2006] NSWCA 368, at [28], per Basten JA.
82Whatever the correct characterisation of the appellant's case, he accepted before the primary Judge that he had to establish that Mr Carbone lacked actual or ostensible authority to enter into the agreement resolving the proceedings or to consent to judgment against the appellant. Unless he established that the agreement underlying the consent orders was void (at least so far as the appellant himself was concerned), he could not succeed in setting aside the orders. The primary Judge, in addressing this contention, had to make findings as to whether the appellant, by words or conduct, had conferred actual or ostensible authority on the solicitor to compromise the proceedings in the manner he did.
83The critical issue before the primary Judge was not whether the respondents' claim against the appellant for moneys said to be due and owing was well-founded, notwithstanding that the primary Judge comprehensively rejected the appellant's claim to have an arguable defence. The critical issue that required determination was whether the agreement entered into by Mr Carbone on the appellant's behalf was valid and thus could support the consent orders. This issue turned on Mr Carbone's authority to enter the agreement so as to bind the appellant.
84The appellant gave evidence at the hearing and was cross-examined at length. Other witnesses were called and were also cross-examined. The primary Judge was invited to assess the appellant's credit and to make the factual findings necessary to determine the appellant's claim that Mr Carbone lacked authority to sign the short minutes of order on the appellant's behalf. His Honour made findings adverse to the appellant. It was not suggested at the hearing (or on the appeal) that findings should be made otherwise than in accordance with the principles governing a final hearing. In particular, it was not suggested that the appellant merely had to establish that he had a prima facie or arguable case on the issue of the solicitor's authority. In short, the primary Judge rejected, on the merits, the appellant's claim that he was entitled as of right to an order setting aside the consent judgment.
85The cases holding that an application to set aside a judgment should be made in separate proceedings appear to proceed on the basis that the claimant is asserting an independent cause of action, rather than any claim or defence in the principal proceedings. The legal effect of the judgment dismissing the application would seem to have been to dispose of the appellant's cause of action. On this basis, it is arguable that the order dismissing the appellant's motion finally determined the rights of the parties and thus was a final judgment: Carr v Finance Corporation of Australia Ltd (No 1) [1986] HCA 20; 147 CLR 246, at 248, per Gibbs CJ; at 253-254, per Mason J. However, there may be an issue (as the appellant argued) as to whether Hoskins v Van Den-Braak stands in the way of such a conclusion: see at 299, per Mason P (with whom Priestley and Beazley JJA agreed).
86Whether or not the judgment of the primary Judge was final, in my opinion it was given after a hearing on the merits within the meaning of s 75A(8) of the SC Act. All issues of fact and law material to the question of the solicitor's authority and the validity of the agreement entered into by him on behalf of the appellant were ventilated before the primary Judge. His Honour made the findings of fact necessary to determine the appellant's claim, after hearing and considering all evidence the parties wished to adduce and after they had an opportunity to test the evidence and make submissions on the law.
87I do not think it matters whether the appellant relied on the inherent jurisdiction of the Court or invoked (as he did on appeal) the Court's power to review an order of a Registrar (r 49.19) or its power to set aside a judgment entered irregularly (r 36.15(1)). Whatever the source of power relied on, the case propounded by the appellant before the primary Judge was that he was entitled to an order setting aside the consent judgment because it was founded on an agreement entered into by a solicitor without authority: cf Singh v Ginelle Pty Ltd [2010] NSWCA 310, at [39], per Campbell JA (with whom Beazley JA and Handley AJA agreed). The appellant's case was heard and determined by a judgment given after a hearing on the merits.
88The parties filed lengthy supplementary submissions addressing whether Hoskins v Van Den-Braak is authority for the proposition that an application to set aside an irregular judgment is an interlocutory judgment. Hoskins involved an application to set aside a Local Court judgment on the ground that the defendant had never been served with the statement of liquidated claim. The Court of Appeal held that the defendant was entitled ex debito justitiae to have the judgment set aside and that the Local Court, in the exercise of its "inherent powers", should have acceded to the defendant's application.
89There is a question as to whether Hoskins, insofar as it relies on the inherent powers of a statutory court, can stand with the decision of the High Court in DJL v Central Authority [2000] HCA 17; 201 CLR 226, [25]ff, per curiam; AVS v Criminale, at [30], per Basten JA. Putting that question to one side, I doubt that Hoskins stands for the proposition of the breadth advanced by the appellant. In any event, for the reasons I have given, I do not think that the status of a judgment as interlocutory or final is determinative of whether a judgment has been given "after a trial or hearing on the merits" for the purposes of s 75A(8) of the Supreme Court Act.
90It follows from what I have said that the effect of s 75A(8) of the SC Act is that the appellant is not entitled to adduce further evidence on the appeal unless he can show "special grounds".