(c) the capacity to allow the opening of orders made in chambers.
32 Further, there is a capacity to set aside judgment peculiar to certain particular kinds of orders, e.g. default judgment and consent orders: Laws, supra, at [33].
33 There are interesting aspects of the application of the rules (Uniform Civil Procedure Rule 36.16 and, by reference, Uniform Civil Procedure Rule 16.1-16.10) as to whether a default judgment, issued in the circumstances of the Practice Note, is consistent or otherwise with the Rules. It is unnecessary for the Court to examine that aspect or the appropriate relationship between the Rules and Practice Notes.
34 It is sufficient to comment that the reasons for judgment of her Honour Magistrate Culver depend upon a distinction between a default judgment, on the one hand, and a judgment that is expressed as a "verdict", on the other hand.
35 There are obvious historical and practical differences between the verdict of a jury and a judgment of the court: see Swain v Waverley Municipal Council [2005] HCA 4; 220 CLR 517; and Keramianakis & Anor v Regional Publishers Pty Ltd [2007] NSWCA 375.
36 Regardless of the terms of the judgment, and whether any part of those terms is described as a "verdict", it is nevertheless a judgment, issued as a result of the default of Ms Shields and not a jury verdict. Nor is it a judgment that has dealt with the statement of claim on its merits, in any sense that would preclude the operation of the principles that apply to the setting aside of a default judgment.
37 The error of law, in misunderstanding the power reposed in the Court to set aside the judgment, infects the whole of the exercise of discretion by the learned Magistrate below. In those circumstances, it is necessary to overturn the exercise of discretion.
38 Further, if, as is alleged, Ms Shields was relying only on material already filed, there had been no default of the requirements of the Court that would satisfy the strict terms of paragraph 7.5 of the Practice Note.
39 Next, the matter came before her Honour Magistrate Culver for the purposes of a mention only and not for the purpose of a hearing of a motion. While I accept that, if a motion is manifestly unarguable and/or untenable, a court may be permitted to deal, at a preliminary stage such as the mention, with such issues, it can do so only in a manner which provides a sufficient opportunity for the moving party to prepare and to present its case.
40 In the proceedings before the Court, the learned Magistrate concentrated on the terms of paragraph 13 of the Affidavit. This is an understandable focus, given that the Affidavit, settled by the legal representatives of Ms Shields, was filed for the purpose of supporting the notice of motion. Nevertheless, counsel for Ms Shields, appearing before her Honour, made clear that the understanding of Ms Shields as to the reason for non-attendance was not the understanding of counsel originally briefed in the matter. As has been extracted from the transcript, Ms Evans apologised on behalf of Mr Dibb, the original counsel, and explained that counsel had missed the date and that counsel's understanding was not consistent with Ms Shields's sworn testimony.
41 While counsel's inadvertence is extremely regrettable, and may have other consequences in costs, it is part of a class of conduct which, but for the question of costs, should not permanently prejudice a party that appears before a court. The position of counsel is often submitted from the bar table without affidavit. Ms Evans sought, and was refused, an opportunity to put that explanation on affidavit. Further, Ms Evans made clear that she was not briefed in a way which would allow her to argue, fully or otherwise, the issues on which it was necessary to address the Court in relation to the arguability or success of the motion.
42 It is necessary for tribunals and courts to remind themselves, from time-to-time, that a refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting their case. In this case, an application for such purpose was made and refused. Even in the absence of an application for adjournment, there may be a requirement to grant one. The failure of a court or tribunal, required to act judicially, to adjourn a matter may, conceivably, and in this case does, constitute a failure to allow the party the opportunity of properly presenting their case: Priddle v Fisher [1968] 1 WLR 1478; Sullivan v Department of Transport (1978) 20 ALR 323 (per Deane J); Director of Public Prosecutions v Gursel Ozakca and Anor [2006] NSWSC 1425 at [11]-[13], [18]-[22].
43 Nothing in the foregoing minimises the issue of case management which, as earlier explained, is an even greater consideration in the Local Court, given the volume of cases that are required to be heard and the pressures on any and every magistrate. However, the principles of case management cannot obviate the necessity of allowing a party the opportunity to prepare and to present its case. In the circumstances of this refusal of adjournment, Ms Shields was denied that opportunity.
Conclusion
44 For the foregoing, reasons, there has been an error of law and a denial of natural justice. The Court makes the following orders: