Part 36.15 and 36.16 Uniform Civil Procedure Rules 2005
71I turn now to the relevant provisions in Part 36 of the Rules.
72I have mentioned that his Honour noted the existence of Part 36.15 before expressing the view that this provision did not appear to be applicable. The Plaintiff had not advanced any argument before the Local Court by reference to Part 36.15. However, in an affidavit affirmed 26 November 2012 (at paragraphs 39-41), there was an effort on the part of the Plaintiff to engage that provision.
73As I understand the argument contained in that part of the affidavit (which I treat as a submission taken together with the oral submission of the Plaintiff), it is that the order made on 13 December 2011 was made against good faith. Paragraph 41 of the Plaintiff's affidavit, relied upon by him directly in oral submissions, asserted that at the moment when the Magistrate became aware that the Plaintiff had not filed any affidavit, "he should have corrected my good faith mistake by adjourning the hearing and giving me a fair opportunity to re-enter the affidavits, but he failed to do so, which eventually denied me natural justice".
74If the Plaintiff here is attempting to assert that the concept of "good faith" in Part 36.15 derives meaning in the way in which he has put it as a "good faith mistake", then the proposition is misconceived. If the Plaintiff is saying that the Magistrate was bound to adjourn the proceedings because the Magistrate became aware that the Plaintiff did not understand what was happening, then I am simply not persuaded that that is a fair understanding of what was happening on this occasion.
75A direction had been given in June 2012 for the Plaintiff to file any affidavits and he had not done so. He had not checked the Local Court file to see if there was anything there. The Plaintiff is a party to civil proceedings with duties to the Court to act in accordance with the obligation in s.56 Civil Procedure Act 2005. That obligation includes a duty to take reasonable steps to resolve or narrow the issues in dispute in accordance with the provisions of the Act, and effectively to assist the just, quick and cheap resolution of the real issues in dispute. The proposition advanced by the Plaintiff is inconsistent with that obligation, and is not supported by the evidence.
76In my view, the Magistrate was quite correct to determine that Part 36.15 had no application to this case.
77As to Part 36.16 of the Rules, it was the Magistrate who raised this in a manner that was entirely fair to the Plaintiff, and his Honour then considered issues that may arise.
78During the course of the hearing, I drew the attention of the parties in this Court to the decision of Barrett JA in Northey v Bega Valley Shire Council [2012] NSWCA 28. There, his Honour considered relevant principles concerning Part 36.16(2)(b) of the Rules. The statement of principles and reference to authorities in that case is of assistance in the determination of this case.
79Although the learned Magistrate's attention was not drawn to this decision at the hearing on 23 August 2012, it is fair to observe that his Honour effectively applied the principles summarised by Barrett JA in Northey v Bega Valley Shire Council in determining the Notice of Motion.
80Barrett JA said at [12]-[17]:
"[12] I turn, therefore, to r 36.16(2)(b) which reflects what Griffith CJ, in Owners of SS Kalibia v Wilson [1910] HCA 77; (1910) 11 CLR 689 at 694, called 'an elementary rule of justice'.
[13] It is not disputed that Ms Northey was absent (and was not represented) on 21 March 2011 when the order was made. But that, of itself, is insufficient to justify setting aside of the order. There must be some added factor that makes it unjust for the order to stand.
[14] In arguing that a court should set aside an order that was regularly made, an applicant under r 36.16(2)(b) must contend with the proposition that great value attaches to certainty in the outcome of litigation. It is relevant to quote what was said by Gibbs CJ, Mason J, Wilson J, Brennan J and Dawson J in University of Wollongong v Metwally (No 2) [1985] HCA 28 ; (1985) 59 ALJR 481 at 482-3:
It may be assumed, without deciding, that the court has power to vacate its order of 22 November 1984, notwithstanding that it has been perfected. If such power exists, it must be exercised with great caution, after weighing what might otherwise be irremediable injustice against the public interest in maintaining the finality of litigation: see State Rail Authority of New South Wales v Codelfa Construction Pty Ltd (1982) 150 CLR 29 at 38. The present is not a case in which an order was made by mistake or as a result of fraud, or a case in which by some accident an order has been made against a party who was not heard.
[15] This passage enjoins 'great caution' in approaching applications of the kind that Ms Northey now presses. It also gives some examples of situations in which it may be found appropriate for the court to intervene in relation to a final order that has been perfected: where the order was made by mistake, where the order was made as a result of fraud and where, by some accident, an order has been made against a party who was not heard.
[16] The central question is whether it is unjust to let the perfected order stand. The matter was put thus by Jordan CJ (Davidson J and Roper J concurring) in Vacuum Oil Co Pty Ltd v Stockdale (1942) 42 SR NSW 239 at 243-4:
The question is whether, upon the material that has been placed before us, there is a real likelihood that it would be unjust to the defendant to allow the judgment to stand. If so, it should be set aside on such terms as it will minimise the possibility of injustice to the plaintiff. If not, we should not interfere.
[17] Examples of cases in which such a factor indicative of injustice has been found to be at work are:
(a) where the applicant proceeded to obtain the order in the face of an agreement with the respondent not to do so: Double Bay Newspapers Pty Ltd v Fitness Lounge Pty Ltd [2006] NSWSC 226; (2006) 57 ACSR 131;
(b) where the applicant proceeded to obtain the order despite the respondent's accountant having been told by the applicant that "nothing would happen" while negotiations continued: Deputy Cmr of Taxation v Annesley Plant Hire Pty Ltd [2010] FCA 755;
(c) where the applicant proceeded to obtain the order after overlooking the fact that the basis for doing so had disappeared: Workers Compensation Nominal Insurer Pty Ltd; re Deli Glenbrook Pty Ltd [2010] FCA 380; and
(d) where solicitors instructed by the respondent in the proceedings failed to protect the respondent's interests: Registrar of Aboriginal Corporations v Murnkurni Women's Aboriginal Corporation (1995) 137 ALR 404."
81The absent party in Northey v Bega Valley Shire Council was apparently flood bound in rural New South Wales at the time of the hearing and had some belief a lawyer was going to attend (see [26]ff of the judgment). At [29], Barrett JA observed, after referring to the evidence:
"I return to the proposition that, to justify an order under rule 36.16(2)(b), the fact of the affected party's absence when an order is made must be accompanied by some additional factor that makes it unjust for the affected order to stand".
82His Honour observed, at [38], that a factor bearing upon the exercise of discretion where application is made to set aside a judgment or order is delay, and that, as his Honour put it:
"The strength of any claim a party may have to have a perfected order set aside necessarily diminishes with the passage of time. This is a very important aspect of the great value attached to certainty in the outcome of litigation. It is one thing for a party who feels aggrieved to apply within a few days or perhaps a few weeks after learning of an order made in the party's absence. A party who does not apply for eight months must, of necessity, present a very much more compelling case to disturb the finality of the order in question."
83The Plaintiff accepts that it was his fault that he did not attend on 13 December 2011. He accepts that he slept in, but says that he left for Court at about 8.30 am. He says there was a traffic delay. He acknowledges that he made no effort to contact the Court or the legal representatives for the Defendant.
84The circumstances relied upon by the Plaintiff demonstrate absence by him on the hearing day. However, I do not perceive any additional factor upon which he relies which will assist him. What he describes is a predictable scenario, capable of being met in any event by communication with the Court or the Defendant's legal representatives. He did not do that.
85In my view, there is a fundamental problem with the Plaintiff utilising Part 36.16 in these circumstances. An important part of this rule is that great value attaches to the certainty and finality of litigation. In addition, if such an application is made, the longer it is left, the harder it will be for an applicant. As I have said, a number of matters referred to by Magistrate Grogin pick up considerations of that type.
86The Plaintiff says that he has a strong case and he, in effect, has a right to be heard in Court with respect to that. He did not put any material before the Local Court on 23 August 2012 to support that proposition. I have mentioned there is some material before this Court to which I have, for a limited purpose, made reference.
87The Plaintiff puts his case upon the basis that he has a natural right, an entitlement in effect, to have a hearing on the merits. Although he did not turn up on 13 December 2011, and he did not make an application to set aside that order for some months, and he did not put on evidence or advance arguments in the Local Court on 23 August 2012, he argues that he has a right, effectively, to have the full case heard.
88The administration of civil justice in this State acknowledges the rights of parties to litigation. It also emphasises the duties and obligations of parties to be present and participate in the litigation, to attend Court on fixed days and to discharge their duties as litigants. The rights of the Plaintiff are to be assessed in the context of a contemporary system of civil justice contained in the Civil Procedure Act 2005 and the Uniform Civil Procedure Rules 2005.
89The Plaintiff well knew that the hearing was fixed for 9.30 am on 13 August 2011. He did not appear. He made no contact. Orders were made. Thereafter, he seeks to bring an application. He presented it in the way he did in August 2012. It was dismissed.
90The Plaintiff now seeks to come to this Court by way of a statutory appeal. This Court has examined, at some considerable length, the matters which arose before the Magistrate for the purpose of determining this application. The rights of the Plaintiff are to be considered in the context of the statutory scheme which I have described, including the limited form of appeal to this Court under the Local Court Act 2007. It is not the position that there are open-ended opportunities to litigate.
91I have taken the course of setting out, at some length, my reasons with respect to this application for leave to appeal. I have done that in the hope that articulated reasons will assist the Plaintiff to understand why he has not succeeded on this application.
92A very significant amount of time has been taken up in different Courts. The Defendant has been required to attend on a number of occasions. It is necessary for this litigation to reach some conclusion.