Broers, Margaret v Forster, Douglas Craig

[1981] FCA 128

Re: MARGARET BROERS and THE NOMINAL DEFENDANT
And: DOUGLAS CRAIG FORSTER (1981) 56 FLR 96
A.C.T. No. G28 of 1980
Practice and procedure - Jurisdiction

COURT

IN THE FEDERAL COURT OF AUSTRALIA

A.C.T. DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1) Deane J.(2) Ellicott J.(1)

CATCHWORDS

Practice and procedure - Interlocutory judgment - Entered by Registrar pursuant to terms of Judge's order made by consent - Whether order sufficiently precise and unambiguous - Defendants not heard on entry of judgment - Whether denial of natural justice.

Adjournment - Granted on condition defendants pay interest from that date upon any judgment recovered - Whether power to impose this condition.

Rules of Supreme Court of Australian Capital Territory, Order 23 rule 7; Orders 41 and 42.

Practice - Self-operating orders - Whether self-operating order sufficiently clear and precise - Interlocutory judgment entered pursuant to self-operating order - Whether defendant entitled to be heard before entry of judgment - Natural justice.

Jurisdiction - Interest before judgment - Whether court has power to order adjournment conditional upon defendants paying plaintiff interest from date of adjournment.

HEADNOTE

On 15th September, 1980, the Registrar of the Supreme Court of the Australian Capital Territory entered an interlocutory judgment against the appellants pursuant to a formal consent order of the court dated 5th September, 1980. The order read as follows: "That the defendants supply to the plaintiff particulars requested by letter dated . . . within seven days from the date hereof, failing which the defendants' defences are to be struck out and the plaintiff be at liberty to enter interlocutory judgment." The appellants did not become aware of the entry of interlocutory judgment until the date upon which the action came on for trial before Kelly J. Upon the application of the appellants the court adjourned the hearing and also ordered without the consent of the appellants that any judgment that the respondent might eventually recover in the matter should bear interest from the date of the adjournment. The appellants appealed against the order of 5th September, 1980, the entry of the judgment on 15th September, 1980, and the conditional adjournment order of that date.

Held: Per Bowen C.J. and Ellicott J., Deane J. Dissenting. The appeal should be allowed because: (1) The words "That the defendants supply . . . particulars . . . failing which" of the consent order of 5th September, 1980, lacked the precision which an order required that purported to be self-operating. The order was therefore inoperative and of no effect.

Abalian v. Innous, (1936) 2 All ER 834; Reiss v. Woolf, (1952) 2 QB 557; Ingram v. Ingram (1938), 38 SR (NSW) 407, applied.

(2) The court had the power to make it a condition of the adjournment that the appellants pay the respondent interest from 15th September, 1980, on any judgment the respondent may subsequently recover, but in the present circumstances it was proper that that condition be set aside.

Per Deane J., dissenting. (a) The order of 5th September, 1980, did not lack the necessary clarity and precision and was operative and valid. (b) The appellants were entitled to an opportunity of being heard before judgment was entered, their right to such an opportunity not having been excluded by clear legislative provision. Heatley v. Tasmanian Racing and Gaming Commission (1977), 137 CLR 487; Twist v. Randwick Municipal Council (1976), 136 CLR 106; Dixon v. Commonwealth (1981), 55 FLR 34; Calvin v. Carr (1979), 53 ALJR 471, referred to. (c) The actions of the Registrar were not void but voidable. (d) The entry of the interlocutory judgment and the order of 15th September, 1980, should be set aside and otherwise the appeal should be dismissed.

HEARING

Sydney, 1981, April 1; August 11. #DATE 11:8:1981

APPEAL.

Appeal against orders of the Supreme Court of the Australian Capital Territory and against the entry of interlocutory judgment by the Registrar of that court.

T. O'L. Reynolds Q.C. and M. McDermott, for the appellants.

H. D. Sperling Q.C. and P. Webb, for the respondent.

Cur. adv. vult.

Solicitors for the appellants: Crossin & Co.

Solicitors for the respondent: Macphillamy Cummins & Gibson.

E. F. FROHLICH

ORDER

1. The appeal be allowed.

2. The order of 5 September 1980, and the interlocutory judgment entered by the Registrar on 15 September 1980 be declared inoperative and of no effect.

3. The condition requiring the appellants to pay interest from 15 September 1980 on any judgment recovered by the respondent in this action be set aside.

4. The respondent pay to the appellants their costs of this appeal.

JUDGE1

On 28 January 1977 the respondent in this appeal, Douglas Craig Forster, suffered personal injuries from a collision which occurred whilst riding his bicycle along Caswell Drive in the A.C.T.

On 7 March 1978 he commenced proceedings against one of the appellants, Margaret Broers, in the Supreme Court of the Australian Capital Territory, alleging negligence on her part and seeking to recover from her damages for personal injury arising out of the collision. By her Statement of Defence she denied negligence and in the alternative alleged contributory negligence on the part of the respondent.

Because an unidentified vehicle was apparently involved in the accident the respondent subsequently joined the Nominal Defendant as a defendant and he is now one of the appellants in this matter. By his Statement of Defence he also denied negligence and in the alternative alleged contributory negligence.

After the pleadings and amended pleadings had been completed and the action had been certified for trial, the respondent sought particulars from the appellants relating to their statements of defence. This request for particulars was subsequently answered by two letters dated 10 and 14 January 1980.

On 18 March 1980 the parties appeared before Kelly J. for the purpose of taking evidence from a witness who was going overseas for a lengthy period and whom the appellants wished to call in support of their case denying liability. The witness was examined and cross-examined and at the conclusion of his evidence it was agreed that His Honour should regard himself as part heard in the action.

On 16 May 1980 the respondent sought further particulars as to the statement of defence of each of the appellants. These particulars had not been supplied by the end of August 1980 and on 2 September the respondent took out a summons against the appellants seeking an order that the particulars requested on 16 May 1980 be provided.

On 5 September 1980 the parties appeared before Kelly J. on the return of the summons and His Honour was asked to make and did make an order by consent requiring the defendants to provide particulars. The formal order of the Court entered by the Registrar was as follows:-

"That the Defendants supply to the plaintiff particulars requested by letter dated the 16th day of May 1980 within seven days from the date hereof, failing which the defendants' defences are to be struck out and the plaintiff be at liberty to enter interlocutory judgment."

The order so entered differed from the order actually made in Court by His Honour in that in Court His Honour ordered the defendants to "provide" particulars. However we do not think anything turns on this difference and propose to consider the matter on the basis of the order as entered by the Registrar.

On 11 September 1980 the appellants' Solicitors wrote to the respondent's Solicitors and in relation to all of the matters upon which specific particulars were sought gave the reply "These are matters of evidence."

On 15 September 1980 the respondent's Solicitors appeared before the Registrar of the Court and tendered an affidavit which annexed relevant correspondence including a letter of 11 September and asserted - "As at the time of swearing this affidavit, the defendants have not supplied the particulars referred to in the order of 5 September 1980".

On this basis the Registrar was asked to and did in fact enter interlocutory judgment which after reciting the affidavit stated:-

"The defendants having failed to provide the plaintiff with the particulars that were on the 5th day of September 1980 ordered to be provided herein IT IS THIS DAY ADJUDGED that the plaintiff recover against the defendants, damages to be assessed.

BY THE COURT

REGISTRAR"

The appellants were not given notice of the application to the Registrar and did not become aware of the purported entry of interlocutory judgment until the hearing was about to commence.

On the same day, 15 September 1980, the trial again came on for hearing before Kelly J. Prior to this, particulars had also been given by the respondent to the appellants on the question of damages. It is unnecessary to go into the detail. It is sufficient to say that the appellants because they believed that they had received insufficient notice from the respondent of certain alleged injuries applied for an adjournment. Kelly J. however, refused to grant it. The appellants then indicated that they wished to appeal against His Honour's refusal and that they also wished to take steps in relation to the entry of interlocutory judgment. His Honour then made an order adjourning the hearing and also ordered as a condition of the adjournment but without the consent of the appellants, that any judgment that the respondent might eventually recover in the matter should bear interest from that date.

The appellants have appealed to this court against the consent order of 5 September 1980 and the interlocutory judgment of the court entered by the Registrar on 15 September 1980. In their notice of appeal they also appealed against His Honour's order refusing to adjourn the matter and challenging His Honour's power to award interest as a condition of an adjournment.

At the hearing of the appeal the appellants did not proceed with those grounds relating to His Honour's refusal to grant an adjournment of the trial. They did contend however that His Honour had no power to order that interest be awarded as a condition of granting the adjournment to enable them to appeal.

We shall deal first with that part of the appeal relating to the consent order of 5 September and the interlocutory judgment of 15 September 1980.

In order to give that matter full consideration there are several additional matters it is convenient to refer to.

The first letter of the respondent seeking particulars was dated 15 August 1979 and it was answered by two letters dated 10 January and 14 January 1980. The letter of 16 May 1980 requesting further particulars was in the following terms:-

"We refer to the correspondence of 15 August 1979, 10 and 14 January 1980 and to what was said before Kelly J. on 18 March 1980 and now wish to clarify the question of particulars of the defences.

As we understand it, the particulars in the letters of 10 and 14 January 1980 are to be treated as an expansion of the allegations contained in the defence of the second defendant dated 29 May 1979. Would you kindly confirm this.

Would you also please provide the following further particulars in relation to that defence:

(a) Please describe the unidentified vehicle referred to.

(b) Please advise more precisely the point upon the left hand rear of that vehicle alleged to be the point of collision between that vehicle and the front wheel of the plaintiff's bicycle.

(c) What are all the facts and circumstances alleged to base the allegation that the plaintiff collided into the side of the unidentified vehicle.

(d) If it is alleged that some part of the plaintiff's body collided with the said vehicle, please identify which part of the plaintiff's body collided with the vehicle, and indicate precisely the point on the vehicle with which that part of the plaintiff's body collided.

As to the defence of the first defendant dated 26 May 1978, please provide the following particulars:-

1. We will assume unless you otherwise inform us that the particulars already provided of the allegations in 4(a) and (c) are the same. Please confirm this assumption, or provide particulars.

2. What are all the facts and circumstances alleged to base the allegation that the plaintiff collided into the side of an other vehicle.

3. Please identify the vehicle referred to and describe it.

4. If it is alleged that some part of the plaintiff's body collided with the said vehicle, please identify that particular part of the plaintiff's body which is first alleged to have come into contact with the vehicle, and identify precisely the point upon the vehicle which is alleged to have been struck by that part of the plaintiff's body.

5. Please identify the vehicle referred to in sub-paragraph (d).

6. Please advise whether this vehicle is the same vehicle as that described in the second defence as the unidentified vehicle.

7. As to sub-paragraph (d), please indicate precisely where upon that vehicle was the point of collision with the plaintiff's cycle.

8. Please identify precisely what place of the plaintiff's bicycle is alleged to have first collided with that point of the vehicle.

Having regard to the confusion surrounding these particulars, we reserve the right to seek further particulars.

The letter of 11 September 1980 in reply thereto, was in the following terms:-

"We refer to your letter of the 16th May, 1980. In relation to the question contained in the second paragraph of your letter as to the particulars in the letters of the 10th and 14th January, 1980, we confirm that they are an expansion of the allegations contained in the Defence of the Second Defendant dated the 29th May, 1979.

In relation to the particulars you requested from the Second Defendant, in your letter of the 16th May, 1980, we are instructed to advise as follows:-

(a) - (d) These are matters of evidence.

In relation to the particulars you requested from the First Defendant we are instructed to advise as follows:-

1. - 8. These are matters of evidence."

Comparison of the letters of 15 August 1979 and 16 May 1980 will show that in some respects the particulars sought were in substance the same.

At the hearing on 18 March 1980, referred to earlier, the witness, a Mr Jerkavits, gave evidence which was directed to the issue of liability and he, in effect, testified that the respondent was riding his bike along Caswell Drive when the front wheel of his bike turned sharply to the right into the traffic and he fell onto the left hand rear side of a vehicle travelling in the same direction. At the same hearing the following interchange took place between His Honour and Counsel for the appellants:-

"MR WILLIAMS: Your Honour, what is alleged is that the vehicle the cyclist first of all came into contact with the left-hand rear of an unidentified vehicle and having collided with that vehicle was then struck by the first-named defendant.

HIS HONOUR: Yes, I follow that.

MR WILLIAMS: If I can proffer that by way of further and better particulars.

HIS HONOUR: And you will tidy it up documentarily in due course.

MR WILLIAMS: Yes, Your Honour."

When the summons for particulars came before His Honour on 15 September 1980 Colin John Maclachlan of the firm of Crossin & Co. appeared for the appellants. At the hearing of this appeal, counsel for the appellants sought to tender affidavits by Mr Maclachlan and Brett Ian Midena, also of the firm of Crossin & Co. testifying to the circumstances surrounding the entry of the interlocutory judgment of 15 September. These affidavits were in part objected to but we allowed the evidence subject to relevance.

Mr Midena's affidavit deposes to the fact that although copies of the letter of 16 May 1980 seeking particulars had been forwarded to Counsel on 18 June 1980 no reply had been received from them by 2 September. He also states that on 9 September after the consent order had been made he spoke with Counsel for the appellants who gave him certain advice following which he composed the letter of 11 September and sent it to the respondent's Solicitors. Under cross-examination he declined, on the grounds of professional privilege, to disclose what that advice was. He also states that no notice was given to his firm to attend before the Registrar to enter interlocutory judgment nor was anybody present on behalf of the appellants when it was entered. He says that at all times prior to the signing of interlocutory judgment he believed that no more than a reply to the letter of 18 May 1980 was being sought by that firm and that a reply furnishing the matter to which the plaintiff was entitled on a request for particulars was a sufficient compliance with the order of 5 September 1980.

In his affidavit, Mr Maclachlan states that on a date prior to 5 September Mr Midena of his firm spoke to him and showed him the letter requesting further and better particulars of the defence. He read the letter and told Mr Midena that in his opinion all the questions raised were matters of evidence and that the letter should be replied to, to that effect. However, he advised Mr Midena before doing so to wait until he could get Counsel's advice. On 5 September Mr Midena approached him and said that he had still not been able to get in touch with Counsel and asked him to go to Court to mention the matter for him. Prior to the matter being called on for hearing Mr Maclachlan had a conversation with Mr Walmsley who appeared for the respondent. He says that, at first, because the summons had not been served within the time required by the Rules, he would do nothing, but when Mr Walmsley pointed out part of the transcript which had occurred before Kelly J. on 18 March 1980 he formed the view that it would not be correct to ignore the summons as there had been some discussion in the proceedings on 18 March as to the furnishing of further particulars. He told Mr Walmsley that a consent order could be made.

When the matter was called on for hearing before Kelly J. Mr Maclachlan referring to the hearing on 18 March said:-

"Whilst the matter was being heard, Your Honour, it was indicated by the defendants' Counsel to the Judge who was hearing the case that the particulars would in fact be answered."

Mr Maclachlan says in his affidavit that when he used the word "Particulars" in that paragraph he meant that the defendant would furnish proper replies to the plaintiff's request for further and better particulars. He further states that at no time had he believed that the defendants were obliged to provide material to which the plaintiff was not entitled by way of particulars and that his firm's instructions are and always have been that liability is an issue in the case. He referred to the evidence given by Mr Jerkavits and to the defence of contributory negligence in support of this view. He concluded his affidavit by asserting:-

"If the Order made on 5 September 1980 is an order requiring all the factual materials requested in the letter of particulars, then I was mistaken as to the effect of the order to which I gave my consent."

In supporting the appeal counsel for the appellants submitted that Kelly J. had no power to make the order where the application was before the court by way of summons and that the only way in which interlocutory judgment could be entered in the circumstances was by an application on motion to the Court. He submitted therefore that the Registrar had no power to enter interlocutory judgment and that the appellants were entitled to an opportunity to be heard before judgment was entered.

It was also argued on behalf of the appellants that under the rules His Honour could only make such order as was just and that even though it was made by consent the Judge should have put himself on enquiry and examined the precise nature of the particulars which were being sought. It was also argued that because Mr Maclachlan consented to the order under a mistake as to its effect it was open to the court on appeal to hold that it was a nullity.

The respondent argued that the court and the Registrar did have power to make the order and to enter interlocutory judgment. It was submitted that the order of 5 September was clear and that there had been an obvious failure to supply the particulars and that the entry of judgment was automatic upon proof of the failure to supply them. The respondent also argued that the court was not entitled on appeal to treat the order of 5 September as a nullity and that the proper course was for the appellants to move to set aside the order. Based on authority it was submitted that this could only be done in a separate action similar to that taken when a party seeks to set aside a contract on the ground of mistake.

Order 23 of the Rules of the Supreme Court of the Australian Capital Territory deals with pleading and rule 7 of that order provides:-

"7. A further and better statement of the nature of the claim or defence for further and better particulars of any matter stated in any pleading, notice, or written proceeding requiring particulars may in all cases be ordered, upon such terms as to costs or otherwise, as are just."

Clearly enough it was pursuant to this rule that Kelly J. purported to make the order for further particulars of 5 September 1980. The power to make it "upon such terms as to costs or otherwise as are just" in our view conferred power to make it a condition of the order that non-compliance would result in the automatic striking out of the defences thereby leaving the plaintiff at liberty in an action for unliquidated damages to enter interlocutory judgment.

The appellants assertion that there must be a motion to the Court before judgment can be entered depends in part on a consideration of Orders 41 and 42.

Order 41 Rule 1 upon which the appellants rely, provides:-

"1. Except by any law or by these rules it is provided that judgment may be obtained in any other manner, the judgment of the court shall be obtained by motion to the court for judgment."

An analysis of Order 42, which deals with entry of judgment, will show that there is no precise rule covering a case such as this. However, rules 7 and 8 which are closest in their operation provide:-

"7. Where under any law or these Rules it is provided that any judgment may be entered upon the filing of any affidavit or production of any document the Registrar shall examine the affidavit or document produced and if the same is regular and contains all that is by law required, he shall enter judgment accordingly.

8. Where under any law or these rules any judgment may be entered pursuant to any order or certificate or return of any writ, the production of such order or certificate sealed with the seal of the court or of such return shall be a sufficient authority to the Registrar to enter judgment accordingly."

These rules do envisage cases where the Registrar is to have authority to enter judgment. Rule 8 contemplates an order being the source of that authority. Rule 7 instances cases where it is made dependent on the filing of a particular affidavit or the production of a certain document. In each case, it seems, the Registrar has been given power to determine whether the order gives the authority or whether the affidavit filed or the document produced satisfy the stated description. In neither case does it fit the present but they do assist the argument that the Registrar would have power to enter interlocutory judgment in a case such as this.

In our view the solution to the problem here depends not on whether there is a precise rule fitting the circumstances of this case but on the nature of the order made. The Court in our opinion clearly has power to make a self-operating order of this nature. It is consistent both with authority and the rules that if an order is made which provides in precise and unambiguous terms that judgment may be entered on the occurrence or non-occurrence of an event, the Registrar may enter judgment if he is satisfied by evidence that that event has occurred or not occurred as the case may be. For example, if an order were breached which provided that a specific document must be filed in the Registry prior to 4:00 p.m. on a particular date, otherwise the plaintiff is entitled to enter judgment, the Registrar would on request be bound to enter judgment and no application to a Judge or the court would be necessary. In such a case his action is very much of an administrative or ministerial character because the order is self operating and requires no further intervention by the court. It has by its own terms already operated to give the plaintiff the right to enter judgment.

It is equally clear however that the power of the Registrar to enter judgment without reference to a Judge of the Court in cases such as this is dependent on there being a clear and precise order which does not leave it open to debate whether the event upon which judgment can be entered has or has not occurred.

The relevant principle was discussed in Abalian v. Innous (1936) 2 All E.R. 834. In that case a Judge in Chambers ordered that a trial be adjourned generally and that if the action be not fixed for trial within six years from the date of "the alleged loss" the action should stand dismissed.

Greene L.J. (as he then was) said that the order upon its face was an anticipatory dismissal of the action and meant that, unless within the period mentioned a certain event has happened, the action dies. His Lordship continued (at page 838):

"Speaking for myself I think that any order dealing with the dismissal of an action, unless something is done, should be absolutely and perfectly precise in its terms. The dismissal of an action at an interlocutory stage is a very serious matter and may well work serious injustice. If an order is to be made in the form that, unless one party or another party does something the action will be dismissed, it is imperative that the thing to be done in order to avoid dismissal of the action should be satisfied in the clearest and most precise language, so that it may be possible for the party on whom the necessity of doing the act lies - which would normally be the plaintiff - to be in no doubt whatsoever as to the steps which he is to take if he is to avoid his action being dismissed. Looking at it in another way: Where the defendant, in reliance on such order, goes to the court and asks it to say, as a result of the order, the action stands dismissed and is no longer existent, he must be able to show first of all that the language of the order is sufficiently precise, and secondly, that the facts which the order contemplates have occurred."

In that case the Court of Appeal held that the order fixed no ascertainable date and was inoperative to effect a dismissal of the action.

The principle was again discussed in Reiss v. Woolf (by Devlin J. (1952) 2 All E.R.3; and on appeal (1952) 2 Q.B. 557). The facts of that case are not dissimilar to the present. There the plaintiff sued for an amount payable under a written agreement. The defendant filed a statement of defence. The plaintiff later obtained an order "that the defendant deliver not later than 4:00 o'clock in the afternoon of the twenty-first day following the date hereof . . . . . . . . . . . . the undermentioned further and better particulars of his defence and that in default thereof paragraphs 2 and 3 of the defence be struck out". Within the time limited, the defendants delivered a letter in which he gave particulars in relation to some of the matters, but, as to others, replied that he could not give particulars until after discovery. An application was then made to have the case disposed of summarily on the grounds that the defence had been automatically struck out. Devlin J. and the Court of Appeal referred to the views expressed in Abalian v. Innous (supra) and held that "default" in the order meant, not default in the sufficiency of one or more of the answer, which the order did not define with precision, but default in delivery within the prescribed time (which was so defined) of a document made in good faith which could fairly be entitled "particulars", and that as such particulars had been delivered within the prescribed time, there had been no default and the paragraphs were not automatically struck out.

Devlin J. after referring to Abalian v. Innous said (supra at p.5):-

"If default means default in the sufficiency of one or more of the answers, I should not consider that the event was defined with precision. Whether or not it had taken place might be the subject of a genuine conflict of opinion which could only be resolved by further adjudication. If I thought this to be the right construction of the order I should follow Abalian v. Innous and treat it as inoperative. The order can conform with the principle in that case only if it is treated as an order that is dealing with the time of compliance rather than the mode of compliance. The order does fix a time very precisely and I think it can fairly be construed as a time order. So construed "default" refers to default in the delivery of a document within the specified time. I do not, of course, mean that any document with writing on it will do. It must be a document made in good faith which can fairly be entitled "Particulars". It must not be illusory . . . . . . . . That, in my judgment, is the test, and not as the plaintiff contends, whether each demand for particulars has been substantially met. Applying that test I think there has been no default. Of course, any party who receives particulars which he says are insufficient is entitled to pursue the matter by further summons, and it may be, to have any paragraph that is not sufficiently particularised struck out as vague and embarrassing. But that is not what I have to consider. I determine no more than that the paragraphs have not been struck out automatically."

His Lordship went on to say:-

"The contention that the paragraphs are not struck out until the court, on a fresh summons declares that they are, is, in my judgment, unsound."

The Court of Appeal agreed with His Lordship and held that the paragraphs in the statement of defence had not been automatically struck out and that therefore the plaintiff was not entitled to the order it sought. (see also Kaye v. Levinson (1950) 1 All E.R. 594; Stubbs v. E.S. & A. Bank (1959) Qd. R. 158).

It will be apparent from this discussion of the principle that the reason for requiring an order of this nature to be precise and unambiguous is the automatic or self operating effect which the order is intended to have. Although in the cases mentioned they were not consent orders we do not think the application of the principle in any way depends on whether or not the order is by consent. In either case it is a question of interpreting the order and determining whether it has had an automatic effect and this in turn will depend on whether it is precise and unambiguous.

It is clear, in the present case, that, if interlocutory judgment has been validly entered, an injustice may occur. The question of liability was clearly in issue and the evidence of Mr Jerkavits shows that there could be serious questions to consider relating to liability. By the time the judgment was entered the pleadings had been completed, the matter had been certified for trial, an earlier letter for particulars had been delivered and some particulars had been given, a witness for the defence had been called to give evidence and the matter was part heard before the Judge. Furthermore, analysis will show that some of the particulars sought in the letter of 16 May 1980 were in substance the same as those sought earlier to which answers had been given.

The particulars sought were also very wide in character e.g. "What are all the facts and circumstances alleged to base the allegations . . . . . . . ."; and some were very precise as to the information sought, e.g. "Please identify that particular part of the plaintiff's body which is first alleged to have come into contact with the vehicle and identify precisely the point upon the vehicle which is alleged to have been struck by that part of the plaintiff's body." It has long been established that a party is not entitled to the other party's evidence under a request for particulars and it is sufficient in considering the present case to observe that it is at least open to debate whether some of the particulars in the letter of 16 May were seeking matters of evidence and were therefore outside the principles upon which particulars will normally be ordered.

Nor is it unusual for a request for particulars to be answered by a statement that the particulars sought are matters of evidence. Although not strictly relevant to the present question, it is clear on the evidence admitted on the appeal that Mr Maclachlan, the appellant's solicitor, genuinely believed that in consenting to the order of 5 September he was not on behalf of his client foregoing the right to give such an answer to that request for particulars in the letter.

The letter of 11 September itself refers to the matters raised in the request for particulars of 16 May and it begins by confirming that the particulars in the letters of 10 and 14 January are an expansion of the allegations contained in the defence of the second defendant dated 29 May 1979. The letters of January do, in fact, give details on a number of matters in issue and so far as it goes therefore, the first paragraph of the letter of 11 September does give particulars of the defence of the second defendant. On the specific questions asked in the letter of 16 May it states that these are matters of evidence.

In the light of this analysis of the relevant principles and of the events leading up to the making of the order, several questions arise, namely, what was the event upon which according to its proper interpretation the order was to operate automatically so as to strike out the defences, was that event stated with sufficient precision and if so has it occurred.

In Reiss v. Woolf the event chosen for the operation of the order was default in delivering before 4:00 p.m. on a day certain undermentioned further and better particulars. Their Lordships in both courts treated this as a time order which fixed a time very precisely. The delivery of particulars, they held, was satisfied by the delivery of a document made in good faith which could fairly be described as "Particulars". That is, a document which was not illusory.

The corresponding words used in the order in this case are different from those in the order in Reiss v. Woolf. Kelly J. ordered that the defendants "supply to the plaintiff" the particulars requested and in our view such an order, properly construed, makes it necessary to consider a number of matters including whether the answers provided are in fact sufficient or otherwise. An order as in Reiss v. Woolf that a defendant do earlier than a specified hour on a day certain deliver to the plaintiffs certain further and better particulars is clearly capable of being construed as requiring a document to be delivered which can fairly be described as particulars.

Here the words are much less precise. The event upon which the defendants' defences are to be struck out is the failure by the defendant to supply the particulars within the time fixed. The actual relevant words used are "That the defendants supply . . . . . . . . particulars . . . . . . . failing which . . ."

In our view both the phrases "Supply particulars" and "failing which" raise important questions of interpretation.

The word "supply" for instance has a wider connotation than the word "deliver". It connotes something being furnished or provided which is needed or desired (See Shorter Oxford Dictionary). The word therefore can raise questions about the nature of what is furnished or provided. When used in relation to information it might also be satisfied otherwise than by the delivery of a document. For instance it might be satisfied by oral communication or by the person to be informed being shown a document which that person is at liberty to copy.

As we have indicated, in Reiss v. Woolf their Lordships were able to adopt a precise meaning for the corresponding words because they were clearly referring to the delivery of a document.

However in this case the words "supply particulars" could according to their ordinary meaning go beyond this and in doing so would raise serious questions not only about what was meant by "supply" but also about the sufficiency of the particulars supplied.

In our opinion they lack the precision which according to the cases, an order of this nature, which purports to be self-operating, requires. It would not matter for this purpose that a court ultimately found that on their true interpretation they referred only to the delivery of a document appropriately described as "Particulars". It is enough to offend the principle which renders such orders as inoperative that they are not (to use the words of Lord Greene in Abalian v. Innous) "absolutely and perfectly precise" as to the event upon which the dismissal of the action or the striking out of the defence should occur and therefore leave it open to enquiry as to whether or not the event has occurred. Similar considerations would in our view apply if the order entered by the Registrar had been in the form "provide" particulars.

A similar problem arises with regard to the phrase "failing which". The word "fail" and what amounts to failure has often been the subject of debate before the Courts. It has usually turned on whether the use of the word implies culpability blame or negligence on the part of the person required to perform an act. The difficulties of interpretation were discussed by Jordan C.J. in Ingram v. Ingram 38 S.R. (N.S.W.) 407 at p.410 as follows:-

" . . . . . . . . .where it is provided by statute that certain consequences shall follow if a person fails to do something which is directed to be done, the meaning of the word "fail" depends upon the context in which it is found. In some contexts it may mean simply the omission to do the thing in question, irrespectively of any reason which may have existed for his not doing it: Miedbrodt v. Fitzsimons L.R. 6 P.C. 306 at p.316-6 R. v. Southward Borough Council Ex parte Southward Borough Market Trustee 90 L.J. K.B. 359; 124 L.T. 623. In other cases it may mean an omission to do the thing by reason of some carelessness or delinquency on his part, but not omission caused by impossibility for which the person in question is not responsible: cf. Loates v. Maple 88 L.T. 288 at 290. In other cases, it may mean omission to do the thing, but so that omission caused by impossibility arising from some causes is included and from others is excluded: cf. Re Neilson 18 Rettie 338. In the case of s.11, I am of opinion that the mere fact that the directions of the restitution decree have not been performed, although supplying evidence of failure to comply with the decree, does not establish such failure conclusively; and that evidence that the non-performance has been occasioned by some supervening impossibility to which no carelessness or delinquency on the part of the respondent in any way contributed would justify the inference that there had been no failure to comply with the decree."

Similar questions could arise in this case. For instance if the appellants omitted to deliver particulars through no fault of their own within the time limited could it be said that they had failed to supply the particulars. It will be noted that Order 34 Rule 12 of the Court's rules dealing with non-compliance with an order to answer interrogatories avoids these problems by using the phrase "If any person interrogated omits to answer."

In our view the phrase "failing which" in this order left it open to question as was the case in Ingram v. Ingram whether the appellants were blameworthy if they did not in fact deliver particulars within the period fixed. Thus for this reason too, the event upon which the defences were to be struck out was not defined by words which were absolutely and perfectly precise.

For these reasons it follows, in our view, that the order of 5 September was inoperative and of no effect. This means of course that the interlocutory judgment itself was inoperative.

If contrary to our view, the words used in the order clearly meant the mere omission to deliver a document which could appropriately be described as "Particulars", we would be of the opinion that, as in Reiss v. Woolf that condition had been satisfied in this case.

It is true that the letter of 11 September in relation to the specific questions asked gives no precise details. However in doing so it relies on an answer which is often used to answer a request to supply particulars namely, "these are matters of evidence." This is only another way of saying "if this question was answered as you request we would not be giving you mere particulars but the evidence on which our client will rely and you are not entitled to this." Such an answer may not in law be sufficient in relation to the questions asked. On the other hand it is clearly arguable in relation to some that it is.

It is clear from Reiss v. Woolf that their Lordships did not regard default in answering some of the particulars sought as sufficient to deprive the document of the description of "particulars". If a similar approach was adopted in the present case it could hardly be said that the delivery of a letter giving some particulars would not have amounted to the delivery of particulars because several of the questions asked were answered "This is a matter of evidence". Should it make any difference if, as is the case with the letter of 11 September, all the specific questions were so answered? We do not think so. On this approach we are not concerned to determine the sufficiency of each of the answers given. The real question, in our view, is whether such a letter was on its face a bona fide attempt to answer the requests contained in the letter of 16 May 1980. In our opinion although there are some inconsistencies in the relevant evidence the letter of 11 September was such an attempt.

In its first paragragh it confirmed that the particulars already given were to be treated as an expansion of the allegations contained in the Statement of Defence of the Nominal Defendant. This had not been clear from the previous correspondence. The letter then proceeded to give what is a common answer to a request for particulars. It left it open to the respondent if he was not satisfied with those answers to go back to the Court and seek a more specific answer There is nothing on the face of the letter or in the evidence to suggest that the letter was written otherwise than in good faith. In other words, to use the test adopted in Reiss v. Woolf it was not illusory.

On this approach therefore, we would have been of the opinion that the conditions of the order were satisfied, that interlocutory judgment should not have been entered and should be set aside.

In the light of these conclusions it is unnecessary for us to express any view on whether, as the appellants contended, the consent order should or could be set aside by this Court on the ground of mistake.

It remains to consider the ground of appeal that His Honour had no power to make it a condition of the adjournment of the hearing of the action pending this appeal that the appellants pay the respondent interest on any judgment he may subsequently recover from 15 September 1980.

It was argued in support of this ground that there is no power in the Supreme Court to award interest for the period prior to judgment. It is clearly open to debate whether the Court has this power. However in our view it does not follow from this that His Honour had no power to impose the condition.

It was up to the appellants as to whether they would accept the adjournment on this condition and having done so they became bound by it. This ground of appeal therefore fails.

However in the light of the fact that the appeal has been upheld the question arises whether this condition should remain.

It was imposed by Kelly J. after considering submissions on behalf of both parties which in part related to the entry of interlocutory judgment. The appellants alleged that the order should not have been made and at first submitted that it should be set aside. His Honour referred to the self operating nature of the order and counsel for the appellants appears to have accepted that it was and that His Honour could not hear an application to set it aside.

This Court on appeal is empowered to vary any judgment appealed from. Clearly enough it was a matter of concern to the appellants on 15 September to have the interlocutory judgment set aside. This did not happen on that day. There was an oral application for that purpose but after His Honour pointed out the self operating nature of the order it was not pursued. It therefore became necessary, if the appellants were to have its apparent effect nullified that the trial be adjourned. The trial was adjourned to allow an appeal on other grounds. However in this appeal the appellants have been successful in having that judgment declared inoperative.

In these circumstances we think it proper that the appellants be not penalised because of the adjournment and that the condition for the payment of interest should be set aside.

The appeal is therefore allowed. We declare the Order of 5 September 1980 and the interlocutory judgment of 15 September 1980 inoperative and of no effect. We set aside the condition requiring the appellants to pay interest from 15 September 1980 on any amount recovered by the respondent in this action. The respondent is to pay the appellants' costs of this appeal.

JUDGE2

The issues involved in this appeal and the factual context within which they fall to be determined appear from the joint judgment of Bowen C.J., and Ellicott J. I shall restrict repetition of the facts to what is necessary for purposes of emphasis or meaningful discussion.

By letter of 16 May, 1980, the solicitors for the respondent sought from the solicitors for the appellants confirmation that certain particulars which had already been supplied were to be treated as an expansion of the allegations contained in the defence of the second defendant. The letter also sought certain further particulars of the respective defences of the two defendants. By letter of 28 August, 1980, the solicitors for the respondent noted that the particulars requested had not been provided and advised the solicitors for the appellants that, unless the particulars were provided by midday on 2 September, 1980, a summons would be issued. The particulars were not provided within the time limited and a summons for particulars was filed on 2 September, 1980. On the return of the summons, Kelly J. gave the respondent, without objection from the appellants, leave to make certain amendments to the form of order which was sought. His Honour then, with the consent of the appellants, made an order in that amended form.

Examination of the summons and the transcript indicates that there are some variations between the terms of the order which was actually made by Kelly J. and the terms of the order set out in the formal order subsequently taken out. The order which Kelly J. made was as follows:

"That the particulars requested by the plaintiff on the sixteenth day of May, 1980 of the defendants' defences herein be provided within seven days, failing which the defences be struck out and the plaintiff be at liberty to enter interlocutory judgment".

The formal order which was taken out set out Kelly J's order in the following words:

"that the defendants supply to the plaintiff particulars requested by letter dated the 16th day of May 1980 within 7 days from the date hereof, failing which the defendants' defences are to be struck out and the plaintiff be at liberty to enter interlocutory judgment".

Apart from the difference in structure, the main variations between the formal order and the order which was in fact made are the deletion from the formal order of the word "the" before the word "particulars" and the use in the formal order of "supply" instead of "provided". Ultimately, I have formed the view that the differences between the two forms of order are not critical for the purposes of this appeal. Neither side suggested that the omission of the word "the" in the formal order was of any significance and it would seem that, in the context, "supply" and "provide" are true synonyms. If it were critical to choose between the order which Kelly J. actually made and the variation of it which appears over the signature of a Deputy Registrar in the formal order, I would pay regard to the terms of the order which his Honour actually made. It is to the order in that form to which I shall subsequently refer.

In addition to the abovementioned order, his Honour, by consent, reserved the costs of the summons.

If the order for particulars had not been made by consent, it would be at least arguable, on behalf of the appellants, that it should not have been made in the terms in which it was made. It would seem undesirable for a court to make a self-operating order entitling a plaintiff to enter interlocutory judgment upon a failure to supply particulars within a nominated period without some qualification to cover unforeseen contingencies and without some reservation to enable subsequent variation of the order made. The order made was, however, made by consent. It was made on a summons which was taken out after twofold default by the appellants in dealing with a request for particulars. It was made in a context where the respondent, as part of the overall resolution of any dispute upon the summons for particulars, refrained from pressing for an order for costs and agreed to costs being reserved. In making the order which was made, Kelly J. executed a bargain between the respondent and the appellants as to the manner of disposing of the matters raised by the summons for particulars.

Although covered by the Notice of Appeal, it was not argued on behalf of the appellants, who were represented by senior counsel, that Kelly J's order was inoperative or ineffective by reason of any lack of clarity or precision in its terms. That question has, however, been raised in the joint judgment of the other members of the Court. I turn to a consideration of it.

There is strong authority to support the view that a self-operating interlocutory order of the type under consideration must, if it is to be effective, be clear and precise both in the terms used and in the designation of the circumstances which will trigger interlocutory judgment (see, Abalian v. Innous (1936) 2 All E.R. 834; Kaye v. Levinson (1959) 1 All E.R. 594 at pp. 596-597, 599; Reiss v. Woolf (1952) 2 All E.R. 3, and on appeal, (1952) 2 Q.B. 557). The cases mentioned were not concerned with consent orders and there is plainly something to be said for the view that any requirement of precision and clarity should be less stringent when the terms of the order have been determined pursuant to agreement between the parties than when the terms have been determined by the Court as appropriate to be imposed upon a party invitum. It is unnecessary that I express any view in that regard however for the reason that, as will be seen, I do not consider that the order in the present case lacked the necessary clarity or precision even if it be assumed that the fact that it was made by consent is immaterial.

There is nothing complicated or unusual in any of the actual words used in the order. While the common form of expression is to particulars being "delivered", the word "provide", like the word "supply", is not infrequently used in conjunction with the word "particulars" both as a matter of ordinary legal language and in orders made by Australian Courts. There is, in my view, neither uncertainty nor imprecision in an order, upon a summons for particulars, that specific particulars be provided by one party to another. The order to provide particulars was not subject to the uncertainties of a saving clause such as "subject to all proper objections and exceptions". It was plain and unambiguous and unqualified. It is true that the words "provide" and "supply" do not expressly preclude the provision of the relevant particulars by a means other than the conventional method of communication in writing. In my view, however, this does not render the order ineffective by reason of lack of precision or clarity in its terms or as to its effect for the reason that, in the context of well-established practice, it seems to me to be apparent that the order meant that the particulars be provided in written form.

In their letter of 11 September, 1980, the solicitors for the appellants asserted that the particulars which the respondent had sought in the letter of 16 May were matters of evidence. I take leave to question that this is so. Even if it were so, however, there would be no resulting ambiguity in the order to provide particulars which was, by consent, made. The submission that the particulars sought were "matters of evidence" could well have been advanced, on the hearing of the summons, as a reason why the appellants should not have been ordered to provide or supply the particulars which were sought. Such a submission was not, however, made. Instead, as has been said, the appellants consented to an order that they provide them.

The words in the order which have caused me difficulty are the words "failing which". I have been troubled as to whether the order is sufficiently clear and precise as to what will fail to constitute compliance with its terms or, to put the matter more directly, as to what circumstances will constitute a "failure" to provide the particulars. If one were left to assess degrees of compliance to determine what should properly be regarded as sufficient compliance, it may be that the order lacked the necessary degree of clarity and precision. In my view, however, the order should properly be construed as being essentially a time order (within seven days) and as requiring, by or on behalf of the appellants, the supply of a document made in good faith which could fairly be seen as constituting a genuine attempt to provide the relevant particulars. In this regard, I would adapt, to the circumstances of the present case, the following passage from the judgment of Devlin J. in Reiss v. Woolf (supra, at p. 5) which was quoted with approval by Somervell L.J. in the Court of Appeal (supra, at pp. 559-560):

"The order does fix a time very precisely, and I think it can and should fairly be construed as a time order. So construed, 'default' refers to default in the delivery of a document within the specified time. I do not, of course, mean that any document with writing on it will do. It must be a document made in good faith and which can fairly be entitled 'particulars'. It must not be illusory; that is the word used by Mr. Bankes in argument in Davey v. Bentinck. That is the test, in my judgment, . . . ".

I would add that I do not consider that the phrase "failing which" implies any degree of blameworthiness on the part of the appellants. The phrase connotes no more than an absence, for any reason, of compliance with the terms of the direction which was given.

It follows that I am of the view that the consent order was not inoperative or invalid by reason of any lack of clarity or precision in its terms.

Nor does it appear to me, on the material before the Court, that there is any uncertainty or difficulty as to whether there was a failure to provide particulars within seven days. The only suggested compliance with the direction contained in the consent order was the delivery of the letter of 11 September, 1980. In that letter, the appellants did not purport to provide the particulars which, under the consent order, should have been provided. To the contrary, the appellants, in effect, refused to provide the particulars on the ground that they were "matters of evidence". That letter could not fairly be entitled "particulars". It was not even "illusory" in the sense of giving an unreal appearance of providing the particulars which had been ordered. It simply, for the stated reason, failed to provide them.

In the result, it appears to me that there was a failure by the appellants to comply with the direction contained in the consent order and that, under that consent order, the respondent was prima facie entitled to interlocutory judgment.

It was argued on behalf of the appellants that the order made by Kelly J. was defective in that, under the Rules of the Supreme Court of the Australian Capital Territory ("the Rules"), the application for the order should have been by way of Notice of Motion and not, as was the case, by summons. I agree, for the reasons which they give, with the conclusion of Bowen C.J. and Ellicott J. that there is no substance in that submission. Apart from it, as I followed the argument, the appellants did not contend that the order which his Honour made was made without jurisdiction. Self-operating orders of this type are, perhaps unfortunately, not rare. The power to make such an order is encompassed by the provisions of Order 23 Rule 7 which provides, inter alia, that further and better particulars of any matter stated in any pleading may in all cases be ordered upon such terms, as to costs or otherwise, as are just (see Davey v. Bentinck (1893) 1 Q.B. 185).

It was submitted, on behalf of the appellants, that the consent order should be set aside for the reason that the solicitor, who consented to it on the appellants' behalf, was under a misapprehension as to its effect. The evidence before the Court does not suggest any lack of authority in the solicitor or any misapprehension as to the actual terms of the order to which the appellants, through him, gave their consent. It does indicate that the solicitor was under some misapprehension as to the effect of the words of the order. There is no suggestion that that misapprehension was shared or induced by the respondent or his solicitor or that the respondent or his solicitor was aware of it.

The consent order represented the compromise reached by the appellants and the respondent on the issues raised on the summons for particulars. Notwithstanding the fact that it was interlocutory in nature, it could only be properly set aside on grounds which would warrant the setting aside of that compromise (see, Purcell v. F.C. Trigell Ltd. (1971) 1 Q.B. 358 at pp. 365, 366; Ainsworth v. Wilding (1896) 1 Ch.D 673 at p. 676 but cf. Mullins v. Howell (1879) XI Ch.D. 763 at p. 766). As was said by the Full High Court of Australia in Harvey v. Phillips & Anor. ((1956) 95 C.L.R. 235 at pp. 243-244):

"The question whether the compromise is to be set aside depends upon the existence of a ground which would suffice to render a simple contract void or voidable or to entitle the party to equitable relief against it, grounds for example such as illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like. The rule appears rather from positive statements of the grounds that suffice (cf. Halsbury's Laws of England, vol. 26, 2nd ed., pp. 84,85); but there is a dictum of Lindley L.J. which is distinct enough: " . . . nor have I the slightest doubt that a consent order can be impeached, not only on the ground of fraud but upon any grounds which invalidate the agreement it expresses in a more formal way than usual . . . To my mind the only question is whether the agreement on which the consent order was based can be invalidated or not. Of course, if that agreement cannot be invalidated the consent order is good". Huddersfield Banking Co. Ltd. v. Henry Lister & Son Ltd. (1895) 2 Ch. 273, at p. 280".

A misapprehension on the part of one party to a contract, as to the effect of agreed terms, does not, in the absence of inducement or knowledge on the part of the other party to the contract, constitute grounds for setting aside either the contract itself or acts or things done in pursuance of it (see Goldsbrough Mort & Co. Ltd. v. Quinn (1910) 10 C.L.R. 674 at pp. 680, 686-7, 695-6; Riverlate Properties Ltd. v. Paul (1974) 3 W.L.R. 564). The misapprehension on the part of the appellants' solicitor as to the effect of the consent order does not constitute grounds for setting aside the compromise between the appellants and the respondent or the consent order which carried it into execution. It is unnecessary to consider whether, in any event, an appeal would be the appropriate procedure for seeking to set the consent order aside on such grounds (see, e.g., re Affairs of Elstein (1945) 1 All E.R. 272 at p. 273; Permanent Trustee Co. (Canberra) Ltd. v. Stocks & Holdings (Canberra) Pty. Ltd. (1976) 28 F.L.R. 195 at pp. 198-199).

It therefore appears to me that, on the material before the Court, the respondent was entitled to have interlocutory judgment entered pursuant to the consent order which had been made. This does not, however, mean that the entry of interlocutory judgment and the drawing up and issue of the formal order were mere formalities which the Registrar was entitled to effect without according the other parties an opportunity to be heard.

The entry of interlocutory judgment and the associated issue of a formal order are steps adverse to the party against whom the judgment is entered and the order issued. In the present case, those steps involved a certification that the appellants had lost the right to dispute, and the chance to avoid, liability and that the appellants were subject to an unquantified liability to pay compensatory damages to the respondent. They are acts performed by the Court, through the Registrar, as steps in the resolution of the litigation between the parties involved. They are not acts which, of their nature, are required to be taken ex parte pending an opportunity of being heard being extended to the other party or parties. There is not, on my understanding, any settled practice that a party is entitled to have an interlocutory judgment under a self-operating order entered without the opportunity to be heard being extended to the other party or parties (see, for example, Purcell v. F.C. Trigell Ltd., supra, at p. 363 where the Registrar's order that judgment be entered was made upon summons for judgment but cf., for example, Pollard v. Incorporated Nominal Defendant (1972) V.R. 955 at p. 958 where judgment was apparently entered ex parte). In these circumstances, and subject to any clear contrary intention appearing from an Act of the Parliament or Rule of Court, the principles of natural justice, applicable to all Courts, require that, if possible issues of fact or law are involved, the party, against whom a judgment is being entered and a formal order is being issued, be accorded an opportunity of being heard (see, generally, Taylor v. Taylor (1979) 25 A.L.R. 418). In the present matter, it is apparent that there were potential issues of law and fact which were required to be resolved in the respondent's favour before it was entitled to have judgment entered and a formal order issued. One such potential issue of law was the question whether the consent order was inoperative by reason of lack of clarity and precision. A potential question of fact and law was whether there had, in truth, been a failure to comply with the terms of the order. In the circumstances, the appellants were entitled to an opportunity of being heard before judgment was entered unless their right to such an opportunity was excluded by clear legislative provision (see, generally, Heatley v. Tasmanian Racing and Gaming Commission (1977) 137 C.L.R. 487 at pp. 499-500; Twist v. Randwick Municipal Council (1976) 136 C.L.R. 106 at pp. 114: "express words or by necessary implication").

The relevant powers of the Registrar of the Supreme Court of the Australian Capital Territory are derived from the provisions of the Australian Capital Territory Supreme Court Act, 1933 and the Rules of the Supreme Court of the Australian Capital Territory made thereunder. Examination of the Rules discloses an absence of any express provision for entering judgment pursuant to a self-operating order of the type in question on the occurrance of the circumstances which trigger the operation of the order. Order 42 Rule 1 provides:

"Every judgment shall be entered by the Registrar in a book which shall be kept for the purpose in the Registrar's office. Judgments shall be in accordance with such form as is applicable in the circumstances".

Other Rules in Order 42 deal with particular circumstances where the Registrar must, before entering judgment, determine, or satisfy himself as to, particular matters (see Order 42 Rules 7 and 9). It is arguable that the absence of any express provision conferring power on the Registrar to determine whether circumstances have arisen entitling a party to have judgment entered under a self-operating order indicates that the Registrar should only enter judgment if a subsidiary order for judgment is obtained from a judge on motion pursuant to Order 41 Rule 1. It seems to me however that this argument overlooks the nature of a self-operating order which, upon the occurrance of the triggering circumstances, itself operates as an order to enter the relevant judgment. With some hesitation, I have come to the view that the Registrar is empowered, by the provisions of Order 42 Rule 1, to enter judgment under a self-operating order upon being satisfied that the order to enter judgment has become operative.

There is nothing in the Australian Capital Territory Supreme Court Act, 1933 or the Rules which could be construed as evidencing a clear intent to preclude the application of the rules of natural justice generally, or the audi alterem partem rule in particular, to a decision of the Registrar to enter judgment pursuant to a self-operating order in a case, such as the present, where potential issues of law or fact are involved. In these circumstances, the ordinary principles of natural justice were, in my view, applicable and required that the Registrar give to the appellants an opportunity of being heard on the question whether judgment should be entered and a formal order issued.

The respondent's application to the Registrar to enter judgment was made upon affidavit. No notice of the application was given to the appellants. The appellants were, in fact, unaware that the application was being made. The appellants were afforded no opportunity of being heard by the Registrar on the question whether interlocutory judgment should be entered and a formal order issued. There was a failure by the Registrar to accord to the appellants the opportunity to be heard to which they were entitled.

Ordinarily, a failure by the holder of a statutory office to observe the requirements of applicable rules of natural justice has the consequence that the relevant decision or action is invalid or vitiated (see, generally, Dixon v. The Commonwealth, Federal Court of Australia, 18 June, 1981; Calvin v. Carr (1979) 22 A.L.R. 417 at pp. 425-426). This ordinary rule is not, however, applicable to a decision or order of a superior court which is at the worst voidable and is valid and effectual unless and until it is set aside (Cameron v. Cole (1944) 68 C.L.R. 571 at pp. 590-591; see also, Taylor v. Taylor, supra, at p. 424). As has been mentioned, the actions of the Registrar in the present case were acts of the Supreme Court of the Australian Capital Territory (see, generally, In re Goods of James Patrick (1889) 14 P.D. 42 at p. 44; Tidswell v. Tidswell (1958) V.R. 601 at p. 605). They were acts of the Court which, while they stood, perfected the Court's interlocutory judgment under the self-operating order and which, in my view, should be seen as partaking of the character of the order itself. The actions of the Registrar were, in my view, not void but voidable and the entry of judgment was and is effective unless and until it is set aside.

It was argued on behalf of the respondent that this Court should decline to grant any relief in relation to the entry of the interlocutory judgment and the issue of the formal order for the reason that the appropriate procedure to have those actions of the Registrar set aside was either by way of appeal to a judge of the Supreme Court from the Registrar or by way of application to a judge for review of the Registrar's actions. It would seem to be reasonably plain that a judge of the Supreme Court would possess power to review the ex parte actions of the Registrar in entering judgment and issuing the formal order (see, as to review of an ex parte order, Taylor v. Taylor, supra at pp. 423, 431; Cameron v. Cole, supra at pp. 589 and 607; Permanent Trustee Co. (Canberra) Ltd. v. Stocks & Holdings (Canberra) Ltd., supra, at p. 198; Bailey v. Marinoff (1971) 125 C.L.R. 529 at p. 540 and, as to appeal to a Judge, Australian Capital Territory Supreme Court Act, 1933, s.8(4) but note the absence of relevant appeal provisions in the Rules of Court). It is, however, likewise clear that an appeal lies to this Court from an interlocutory order of the Supreme Court of the Australian Capital Territory. On such an appeal, the Court has jurisdiction to set aside the entry of judgment by the Registrar and the issue of the formal order.

A question which arises is whether this Court should, as a matter of discretion, refuse to grant relief in relation to the entry of interlocutory judgment and the issue of the formal order. It would have been more convenient for an application to review the acts of the Registrar to have been made direct to Kelly J. His Honour could have determined the existence and effect of the irregularity resulting from the Registrar's failure to extend to the appellants an opportunity of being heard and would have been entitled to hear and determine de novo the question whether judgment should be entered (see Tidswell v. Tidswell, supra, at pp. 605-608 and the cases there cited). If, after hearing the appellants, his Honour was of the view that the respondent was, on the merits, entitled to have interlocutory judgment entered in any event, he could, at that stage, have directed the regular entry of interlocutory judgment and the regular issue of a formal order. The hearing before his Honour could then have proceeded on that basis. In my view however, these considerations do not warrant a refusal by the Court to grant relief to the appellants. Once the conclusion is reached that the entry of interlocutory judgment and the issue of the formal order is affected by a fundamental irregularity such as a failure to comply with the requirements of natural justice, the appellants are entitled to have the entry of judgment and the issue of the formal order set aside ex debito justitiae (see Cameron v. Cole, supra, at p. 591). In this regard, it is not to the point that the material before the Court indicates that it is unlikely that the appellants, if given an opportunity of being heard, could successfully oppose the entry of judgment. Nor, in view of the fact that the appeal to this Court is not by way of hearing de novo on the merits, does the appeal to this Court itself "cure" the defect in the original entry of judgment which resulted from the failure to observe the rules of natural justice (see, generally, Calvin v. Carr, supra).

I agree with the other members of the Court in rejecting the appellants' argument that Kelly J. had no power to impose, as a condition of the adjournment of the hearing pending this appeal, a requirement that the appellants pay the respondent interest as from 15 September, 1980 on any judgment which the appellants may subsequently recover. As I have indicated, the only respect in which I would uphold the appellants' submissions is the point that the entry of the interlocutory judgment and the issue of the formal order was irregular because of a failure to comply with the requirements of natural justice. That was a point which could more effectively and expeditiously have been challenged before a judge of the Supreme Court. That being the case, there was no necessity for the trial to be adjourned for the period necessary to enable an appeal to be brought to this Court. The appellants should, in my view, be held to the condition and I would not interfere with it.

In the result, I would set aside, as irregular, the entry of the interlocutory judgment and the formal order of 15 September, 1980. That would, of course, leave the respondent free to renew its application to enter interlocutory judgment. Otherwise, I would dismiss the appeal. In all the circumstances, I would order that the appellants pay to the respondent two-thirds of his costs of the appeal.