European Hire Cars Pty Ltd v Armstrong

[2004] NSWLC 4

Local Court of New South Wales

CITATION:	European Hire Cars Pty Ltd v Armstrong [2004] NSWLC 4
JURISDICTION:	Civil
PARTIES:	European Hire Cars Pty Limited Kenneth John Armstrong (as Executor of the Estate of the Late Patricia Ann Armstrong)
FILE NUMBER:
PLACE OF HEARING:	The Downing Centre
DATE OF DECISION:	08/12/2004
MAGISTRATE:	Magsitrate B A Lulham
CATCHWORDS:	Statement of Confession - Notice of Motion - Judgment set aside
LEGISLATION CITED:	District Court Rule Pt 3 r 2 District Court Rules Local Courts (Civil Claims) Act
CASES CITED:	Taylor v Taylor (1979) 143 CLR Cameron v Cole (1944) 68 CLR Hoskins v Van Den Braak (1998) 43 NSLR 290 Craig v Kanssen [1943] KB 256 Brougham v Dominelli Ford Hurstville Pty Limited NSW SC 17 February 1993. Bomanite Pty Limited v Slatex Corporation Australia FAI General Insurance v Southern Cross Expiration NL [1988] 165 CLR 268. State of Queensland v J L Holdings (1997) 189 CLR 146. El Ali v GIO (NSW) [1988] 15 NSWLR 303. Carageorge v DCT (1999) NSW SC 1009 at 13 Lewis v Cambell Constructions Pty Ltd (1989) 18 NSWLR 528. Roach v B & W Steel Pty Limited (1991) 23 NSWLR Fernance v The Nominal Defendant [1989] 17 NSWLR 710
REPRESENTATION:	Beilby Poulden Costello Solicitors Beilby Poulden Costello Solicitors Mr Zipser of Counsel Kitamura & Associates Solicitors Mr S Phillips of Counsel
ORDERS:	1. Pursuant to Pt 4 r 2 I extend the time for the plaintiff to file the Notice rejecting confession to a date fourteen days from the date of this Judgment. 2. The Judgment entered against the plaintiff in the sum of $4,850.00 will, on the filing of the Notice referred to in paragraph (1) be set aside.

Reasons for Decision

1    This matter proceeded before me at the Downing Centre on 15 July 2004.

2    The plaintiff/applicant on the Motion sought the following orders;

(i) That the judgment entered for the plaintiff in the sum of $4,890.00 herein be set aside.
(ii) That the plaintiff be given leave to file a Notice Refusing to Accept the Amount Confessed to.
(iii) That this matter be allocated a callover date.
(iv) Such other order as the Court deems fit.

3    The plaintiff relied on the following affidavits;

(a) The affidavit of William Barry Beilby sworn 25 March 2004.

(b) Affidavit of William Barry Beilby sworn 11 June 2004.

(c) Affidavit of William Barry Beilby sworn 17 June 2004.
(d) Further affidavit of William Barry Beilby sworn 17 June 2004.
(e) Affidavit of John Kalluzzo sworn 14 July 2004.
(f) Bundle of correspondence from 18 June 2003 to 13 December 2003.

4    The defendant/respondent relied on the following evidence;

Affidavit of Torrence Edward Kitamura sworn 16 June 2004.



Background to Dispute

5    The plaintiff relied on an Amended Ordinary Statement of Claim file 27 November 2003. The plaintiff sued on two bases;

(i) The plaintiff alleged that through its agent and director, it agreed to sell a motor vehicle to Patricia Ann Armstrong on the basis that the plaintiff would purchase the vehicle and hold it in trust for the said Patricia Ann Armstrong until the completion of her family law proceedings, whereupon she was to pay to the plaintiff the amount incurred for the purchase and holding of the vehicle. The plaintiff alleged the vehicle was purchased in April 2002. Patricia Ann Armstrong died on 10 October 2002 without completing the purchase of the motor vehicle. The defendant is the Executor of the Estate of the said Patricia Ann Armstrong. The amount claimed for this aspect of the claim was $30,805.76. I shall refer to this aspect of the claim as the ‘the Mercedes Benz purchase dispute’.


(ii) The second separate basis of the plaintiff’s claim was that it had arranged for the repair of a BMW owned by the deceased at a cost of $4,540.00 in about October 2002 and sought to recover that sum. The plaintiff as part of this aspect of the claim also sought an amount of $350.00 for the fee for detailing the said vehicle, making a total claim of this part of $4,890.00.

6 On 22 December 2003 the solicitor for the defendant arranged for the filing of a Statement of Confession pursuant to Part 12 r 2(1) of the Local Courts (Civil Claims) Act which statement was in the following form;

‘I Kenneth John Armstrong, the defendant in this action, confess that the sum of $4,890.00 being part of the amount claimed by the plaintiff and due to the plaintiff from the defendant in full satisfaction of the plaintiff’s claim.’

7    At the same time as filing the Statement of Confession the defendant filed Notice of Grounds of Defence to that aspect of the claim which I have referred to as ‘the Mercedes Benz purchase dispute’.

8    The Notice of Confession was received by Mr Beilby the solicitor for the plaintiff on or about 6 January. Through error he took no action.

9 Pt 12 r 2(7) of the Rules provides;

Where the confession is to part only of the amount of the claim of the plaintiff, and the plaintiff, within fourteen (14) days after notice was given by the Registrar under sub-section 2, or, where that notice was sent by post within fourteen (14) days after the notice is deemed to be served under Pt 7 r 19 to have been received, does not file a notice refusing to accept in full satisfaction of the claim the amount so confessed to, the Registrar shall forthwith after the expiration of that time enter up judgment for the plaintiff for the amount to which the defendant has confessed.

10    Absence of the filing of any form by the plaintiff the Registrar proceeded, in accordance with the Act, to enter judgment for the sum of $4,890.00. It is in respect of that judgment that the plaintiff now seeks an order extending the time for the filing of a Notice refusing to accept the amount confessed to and for the setting aside of the judgment entered by the Registrar.

The Issue Between the Parties

11 The general submission of Mr Philips for the defendant was that the only rule upon which the plaintiff could rely was Pt 26 r 3 and that on the facts in this case the plaintiff could not succeed under that Rule. Mr Philips submitted there were no other Rules or Sections of the Act which would give the Court power to make the orders sought by the plaintiff and he submitted that the Court did not have any implied power to make such orders based on any notion of natural justice and inherent jurisdiction. Mr Philips argued that the matters to be taken into account in the exercise of any discretion favoured the defendant.

12    Mr Zipser for the plaintiff submitted that power to make the orders sought could be found in the following Rules and Sections of the Rules and the Act;

Pt 26 r 3
Pt 4 r 2
Pt 1 r 5
P 33 r 9
S75A
Natural Justice and Inherent Jurisdiction.

13    Mr Philips submitted that all of the matters be taken into account in relation to the exercise of a discretion were in favour of the plaintiff.

Discretionary Matters

14    Mr Philips for the defendant argued strongly that the plaintiff;

“Has not established that it has even a moderate prima facie case with respect to the cause of action which is disputed by Armstrong. To the contrary, the case asserted by European is weak and completely reliant on alleged omissions by a deceased person for whose Estate Armstrong is the Executor.”

15    A large amount of the material in the affidavits went to the question of the merits of the plaintiff’s case in relation to the ‘Mercedes Benz purchase dispute’. I gave an extemporary judgment during the oral argument on 15 July 2004. I found I was comfortably satisfied that the plaintiff had an arguable or prima facie case in relation to the ‘Mercedes Benz purchase dispute’, and one which he should be entitled to have litigated in Court.

16    I am satisfied that all of the discretionary matters are in favour of the plaintiff. They include the following matters;

(a) The bundle of correspondence tendered by the plaintiff detailing correspondence between the solicitors for the plaintiff and the solicitors for the defendant between June and December 2003, confirms that the plaintiff was most anxious to have both claims determined by the Court, and the defendant was always going to strenuously defend the ‘Mercedes Benz purchase dispute’. Such state of affairs was well known to the solicitors for each of the parties.
(b) There was no fault or delay at all on the part of the plaintiff in pursuing its claim. No blame can be apportioned to the plaintiff.

17 Mr Beilby accepted his fault for the failure to file the Notice of Refusal pursuant to Pt 10 r 2(7). He said that he was under the impression that the affect of the filing of the partial confession was that the defendant had confessed to the second aspect of the claim relating to the repairs of the vehicle, and that the separate ‘Mercedes Benz purchase dispute’ would proceed to be set down for hearing. His belief and understanding was clearly wrong. There are numerous cases which point to need for the Court to deal sympathetically with understanding where parties rights are disastrously affected by a misunderstanding or slip-up or mistake by a solicitor.

18    As soon as Mr Beilby realised his mistake he wrote to the defendant’s solicitors on 1 March 2004 seek their consent to the filing of a Notice of Refusal out of time. The defendant’s solicitors refused to consent on 23 March 2004 and Mr Beilby then filed the Motion to the Court on 25 March 2004. Once the mistake was realised there was no delay at any stage on the part of the solicitors for the plaintiff.

19    If the plaintiff’s Motion is successful, the defendant will not suffer any particular prejudice. He always expected the ‘Mercedes Benz purchase dispute’ claim to be pursued and strenuously defended. If the plaintiff’s Motion is successful, an early date for a review hearing will be able to be fixed, and the matter can proceed to hearing with little delay.

20    Mr Philips submitted that the Court should not grant the Motion, as to do so;

In these circumstances would be contrary to the interests of justice as this would amount to encouraging, or at least condoning litigants to ignore the Court’s own rules and would constitute ‘emasculation of the rules’ (to use the words of Gleeson CJ in Fernance v The Nominal Defendant [1989] 17NSWLR 710). I acknowledge such submission and the principle that a judgment of the Court should be final. I take such principle into account in the exercise of the discretion.

21    Taking all of those matters into account, I am satisfied that the discretionary matters are overwhelmingly in favour of the plaintiff. It should be able to litigate its claim before this Court. To deny it such right would, in my view, be a denial of justice.

22    I therefore propose to make the orders sought by the plaintiff in the Notice of Motion provided the plaintiff can satisfy me as to the basis of my power to do so.

The Pt 26 r 3 Argument

23 Pt 26 r 3 of the Rules provide as follows;

3.1 A judgment or order of the Court in any proceedings may, on sufficient cause being shown, be set aside, on terms, by order of the Court, if the judgment was given or entered up, or the order was made, irregularly, illegally or against good faith.


2. A judgment or order of the Court in any proceedings may, on terms, be set aside by order of the Court if the parties to the proceedings consent.

24    Mr Philips for the defendant admitted that the Act and Rules of the Court contain a detailed and exhaustive list of the power of the Court to set aside a judgment, including the following powers;

Pt 10 r 2 – Setting aside orders for judgment
Pt 11 r 1(2) – Setting aside the four judgments.
Pt 12 r 2(11) – Setting aside judgments by confession on the basis that the plaintiffs did not receive in sufficient time the Notice of Confession or part confession required to be forwarded by the Registrar.
Pt 12 r 3 – Setting aside judgments by agreement upon the application of any party to the action who is not a party to the agreement.
Pt 21 r 2(2) – Setting aside judgments recorded in the absence of a party when the matter has been called on for hearing.

25 Mr Philips submitted that if the application to set aside a judgment did not come within any of those specific provisions, then such judgment would have to be sought to be set aside under Pt 26 r 3. He submitted that Pt 26 r 3 was the appropriate and only Rule to deal with an application to set aside a judgment following a confession and he relied particularly for such submission on the decision of Brougham v Dominelli Ford Hurstville Pty Limited SC NSW Campbell J 17 February 1993. I have some doubt as to whether Brougham is proper authority for such proposition, but for the purposes of the submission under Pt 26 r 3, I accept that it is.

26    The defendant relied particularly on the principles enunciated by Kirby P in Coles v Burke (1987) 10 NSWLR at p437. Kirby P was dealing with an application under r12A of the District Court Act which is the same form as Pt 26 r 3 of our Act. Kirby P had this to say;

The genus which is involved in the phrase “irregularly, illegally or against good faith” appears to me to be misconduct or dishonourable conduct of the person who procured the judgment which it is suggested undermines the authority of that judgment warranting the exceptional course for which r12A provides. Here, there was no such lack of good faith on the part of the claimants. The signing of the judgment was made in accordance with the authority of the order earlier consented to and after a warning had been given by the letter to which I have referred. It is perhaps undesirable, in the modern practice of the legal profession (where much give and take is required) that judgment should be signed in this way without a final telephone call or other warning. However, the failure to give such a final and further warning could not, on any view, amount to a lack of good faith. Therefore, r 12A, likewise, has no application to these circumstances. No other rule or statutory provision was relied upon by the first opponents to support he order which Smyth DCJ made.


It was submitted that the District Court had an inherent power to regulate its own affairs. By this, I understand the first opponents to mean that the District Court, as a court, had such powers as a court must have to perform its functions including, so it was suggested, the power to set aside a judgment entered in the circumstances of this one. I do not consider it is necessary to explore the question at length. The power of the District Court to set aside judgments was relevantly exhausted by the explicit provisions of the District Court Act and rules. Reference was made to the High Court decision in Taylor v Taylor which concerned the Family Court of Australia, and in particular the remarks of Gibbs J (at 5). I do not read that decision, or his Honour’s remarks, to apply to the present circumstances. In Taylor v Taylor there was a lacuna in the Family Court’s powers. The District Court’s powers, to the contrary are ample. They provide for the setting aside of judgments, in terms of great detail. But they regulate and control the discretion to grant such relief.”

27    Mr Philips submitted that in no way could it be suggested that that the defendant in this matter, was guilty of any ‘misconduct or dishonourable conduct’. Indeed the defendant played no active role in the entering of judgment at all. Moreover, the principles espoused by Kirby P required the misconduct or dishonourable conduct take place before the judgment was entered. Clearly, in this case, there was no such misconduct or dishonourable conduct.

28 Mr Zipser for the plaintiff submitted that I could make the orders sought pursuant to Pt 26 r 3 because I could be satisfied that the judgment was ‘entered up …. against good faith’ because of the failure of the defendant to consent to the judgment being set aside. He relied on the following excerpt from the judgment of the Court consisting of Kirby P, Clarke and Handley JJ in Roach v B & W Steel Pty Limited (1991) 23 NSWLR at p114. The Court was dealing with an appeal from a decision of Nield DCJ who had set aside a judgment pursuant to the District Court equivalent of the Local Court Rule Pt26 r3. The Court had this to say;

‘Equity judged that it was unconscionable for one party to take advantage of an obvious and material mistake of another. This principle was applied by Finlay J in Lewis v Cambell Constructions Pty Ltd (1989) 18 NSWLR 528 in setting aside a settlement of litigation.


In our judgment the history of the proceedings referred to by Nield DCJ establishes that the legal advisers of the plaintiff “knew or ought to have known” on 31 October 1988 that the absence of the defendant from the court that day was the result of some mistake and did not reflect a deliberate decision on its party no longer to “hotly contest” the making of an order extending time. Mr Seery who then appeared for the plaintiff had not appeared previously and we accept that he was not then aware of the history of the matter. The plaintiff’s solicitor, who was aware of the history, may not have been in court and the decision to proceed without inquiry of the defendant’s solicitors was made by a barrister who was not aware of the history. In the result it may be that no one was personally guilty of conduct “against good faith”. Nevertheless the rule is satisfied if a party or his legal advisers knew or ought to have known the relevant facts. A client cannot escape responsibility for the acts and omissions of his solicitor and barrister because neither was fully aware of the facts. In accordance with ordinary principles the knowledge of both will be imputed to the client.’

29 I do not accept Mr Kipser’s submission. The conduct which has to be looked at is the conduct of the parties prior to the entry of judgment. I have come to the view that the plaintiff could not succeed relying on Pt 26 r3 as the basis for my power to make the orders sought. The plaintiff cannot succeed under Pt 26 r3.

Pt 4 r 2 Argument

30 Pt 4 r 2 of the Rules provide as follows;

Extension and Abridgement
2(1) A Court may, on terms, by order extend or abridge any time fixed by these Rules or by any judgment or order.
(2) A Court may extend time under sub-rule (1) after, as well as before the time expires, whether or not an application for the extension is made before the time expires or at all.
(3) The period within which a person is required by these Rules or by any order to serve, file or amend any document may be extended by consent without an order for extension.

31 Mr Philips relied on Pt 4 r 2 and submitted that the Rules give the Court a wide an unfettered discretion to extend or abridge any time fixed by the Rules. I note that the Learned author Butterworths Local Court Civil Procedure New South Wales states;

The object of the Rule is to give the Court in every case a discretion to extend the time with a view to the avoidance of injustice (see Practice p528).

32    Mr Philips relied on the following cases;

1. FAI General Insurance v Southern Cross Exploration NL (1988) 165 CLR 267.
2. Carageorge v DCT (1999) NSW SC 1009 at 13.
3. State of Queensland v J L Holdings (1997) 189 CLR 146.

33    The case which I found to be particularly helpful and instructive was El Ali v GIO (NSW) [1988] 15 NSWLR 303. In that case the claimant in the Notice of Motion had intended to file an application for a re-hearing following the hearing of a matter at arbitration. The Rules provided that a party to an arbitration had the right to a re-hearing by filing a Request for Re-hearing within 28 days of the date of the arbitration. Through an oversight in the solicitors office, the Request for the Re-hearing was filed four days out of time. As a result of the form not being filed within 28 days, the decision of the Arbitrator was deemed, at the expiration of the 28 days, to be a judgment of the Court. The factual situation was therefore very similar to the factual situation in this matter, in that in each case it was the failure of a party to file a document which resulted in the Court entering up the judgment without any further intervention of the other party. The case was an appeal from a decision of Phelan DCJ, and the District Court Rule Pt 3 r 2 is in the same terms as the Local Court Rules Pt4 r 2. In my view the following statements of Judge in El Ali at p309 have special significance to this case;

‘There are significant reasons of policy, quite apart from the language of the legislation to which have referred, which lend strength to the claimant’s contentions. But there are also important considerations of policy which suggest to my mind that it is unlikely that Parliament would have intended such an absolute and unbending operation of s 18(2).
Every judge and practitioner knows that mistakes can occur which are no fault of the hapless litigants. Staff can fall ill. They can misfile or mislay documents. Messages as to time limits can become confused or misunderstood. The intervention of holiday periods, as in the present case, can lead to an unintended failure to comply with a time limit which is generally in force.
Time limits must be respected and enforced. But the administration of justice has come a long way since, in the nineteenth century, such rigidity, inflexibly applied, frequently caused substantial injustice. That is why provisions such as Pt 3, r 2 have been made and regularly, for good reason, applied in the District Court. Equivalent provisions are regularly invoked in this Court. The District Court provision was a rule which was in operation at the time the Arbitration (Civil Actions) Act was enacted. It may be presumed that Parliament was aware, when it provided that an award of the arbitrator should become a notional judgment or order of the District Court, that this would occur in the setting of rules of that Court with the ameliorating provisions of Pt 3 r 2.
Finality of judgments is important. But so is justice in the particular case. The District Court Rules, Pt 3, r 2, does not provide a right to an extension of time. It enlivens the exercise of a judicial discretion. It is a discretion which may be exercised both before and after the expiry of the time in question. It is a discretion to be exercised wisely, for reason and, where necessary, upon conditions. In the present case, the discretionary elements which led Phelan DCJ to his view have not been challenged. It is thus conceded that, if there is power, this was a proper case in which to exercise it. By the standards of like extensions in this Court, where short time intervals are involved, there is nothing surprising in what Phelan District Court J did. Of course, these observations do not provide a source of power if the legislation fails to afford it or excludes it. But because legislation is to be given a sensible and not an artificial or narrow construction, the incorporation of the Arbitration (Civil Actions) Act 1983 to envisage the incorporation of the general powers for extension does no obvious offence to the achievement of finality which is an obvious purpose of s 17 and s 18 of that Act. It is finality not rigidly achieved but secured in the context of rules which provide, in particular cases, for an extension of time.’

34    The reasoning and principles espoused by His Honour in El Ali provide great support for the plaintiff’s submission that Pt 4 r 2 can be used as the basis for the power to make the orders sought.

35    I rely also on the following extract from Butterworths Local Court (Civil Procedure) NSW at p5219 as follows;

‘In FAI General Insurance v Southern Cross Expiration NL [1988] 165 CLR 268 Wilson J (with whom Brennan, Deane and Dawson JJ agreed) said: “The plain meaning of [the words of the rule] is very wide. The Court may extend ‘any time’ fixed by ‘any…order’ and may do so as well after as before the time expires and even though the application to extend is not made until after the time has expired… It is a remedial provision which confers on a court a broad power to relieve against injustice. The discretion so conferred is not readily to be limited by judicial fiat. The fact that it manifestly is a power to be exercised with caution and, in the case of conditional orders, with due regard to the public policy centred in the finality of litigation does not warrant an arbitrary limitation of the power itself, not expressed in the words of the rule, so as to deny its capacity to apply to circumstances such as those to be found in that present case. It would be wrong to so read the rule as to deny to a court power to prevent injustice in circumstances where the party subject to a conditional order ought to be excused from non-compliance.” His Honour rejected the submission that the court’s powers to set aside a judgment under (LC(CC)Rules Pt 21 r 2 and Pt 26 r 3) stood in the way of making an order under (Pt 4 r2).’

36    It is significant as pointed out by the learned author in Butterworths that in FAI General Insurance Wilson J rejected the submission that in that case the Court’s power to set aside a judgment under the Local Court equivalent of Pt 21 r 2 and Pt 26 r 3, were the legislative basis of power and stood in the way of making an order under Pt 4 r 2. That was the submission of Mr Philips, namely that the only source of power to make the orders was to be found in Pt 26 r 3 that it would be wrong for me look outside that Rule for the power. I reject that submission on the basis of what Wilson J had to say in FAI General Insurance.

37 I am satisfied that I am entitled to make the orders sought under Pt 4 r 2. However, should I be wrong at either law or on the facts, I propose to discuss briefly the other Rules upon which Mr Zipser relied as also giving me power to make the orders.

Pt 1 r 5 Argument

38    Pt 1 r 5 provides as follows;

5(1) Subject to sub-rule 2 the practice in a Court shall be the practice provided by the Act or these Rules.
(2) A Court may, if it thinks fit, on terms, dispense with compliance with any of the requirements of these Rules either before or after the occasion before the compliance arises.

39    Mr Zipser submitted that this Rule would also be a basis for the power to grant the orders sought. In support of his submissions he refers to the statement of French J in Bomanite Pty Limited v Slatex Corporation Australia (p391). The principle referred to indicating that the substantive goal of the Court is to do justice between parties according to law, and accepting the statement that the;

‘Procedural requirements attending the preparation and conduct of litigation must be sufficiently flexible to make reasonable allowance for human error were it not the system would be unworkable.’

Would seem to me to apply as much to Pt 4 r 2 and S 75A as Pt 1 r 5.

40    I am satisfied that Pt 1 r 5 may be a source of power to make the orders sought in this matter, but I would not propose to rely on the Rule.

The S 75A Argument

41    S 75A of the Act provides as follows;

Irregularity
(1) If, in the purported commencement of any proceedings or at any stage in the course of or in connection with any proceedings, there is, by reason of anything done or left undone, a failure to comply with any requirement of this Act or of the rules whether in respect of time, place, manner, form or content or in any other respect:
(a) the failure is to be treated as an irregularity and is not to nullify the proceedings, or any step taken in the proceedings, or any document, judgment or order in the proceedings; and
(b) subject to subsections (2) and (3), the court may, on terms, set aside wholly or in part the proceedings or any step taken in the proceedings or any document, judgment or order in the proceedings, or exercise its powers under the rules to judgment or order in the proceedings, or exercise its powers under the rules to allow amendments and to make orders dealing with the proceedings generally.
(2) The court must not wholly set aside any proceedings on the ground that, although not constituting an action for the recovery of a debt or liquidated demand, they were commenced by the lodging of a statement of liquidated claim.


(3) The court must not set aside any proceedings or any step taken in any proceedings or any document, judgment or order in any proceedings on the ground of a failure to which subsection (1) applies on the application of any party unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity.’

42 Mr Zipser submitted that the failure of the plaintiff’s solicitor to file pursuant to Pt 12 r 2(7) of the Act, the Notice of Refusal within fourteen (14) days after receiving notice from the Registrar of the part confession, was ‘a failure to comply with a requirement …the Rules within the meaning of s 75A of the Act’.

43    It seems to me that considerable support for the proposition that s 75A could be used can be obtained from the decision of Hoskins v Van Den-Braak (1998) 43 NSWLR 290. In that case Mr Hoskins had unsuccessfully sought to have the judgment set aside and had made several unsuccessful applications to pay the judgment by instalments. He later sought to have the judgment treated as an irregularity under s 75A. Acting Supreme Court Judge Cooper indicated that he was prepared to deal with the matter under s 75A and found that he had the power to do so, but said that he was unable to make the orders sought because of the provisions of s 75A(3). The fact that Mr Hoskins had made several unsuccessful applications to pay the judgments by instalments, brought into play sub-section 3. That would not be the situation here, as the solicitors for the plaintiff made the application to the court without any delay, without taking any other step in the proceedings. I shall refer to Hoskins v Van Den-Braak when dealing with inherent powers as it was on this basis that the matter was dealt with by the Court of Appeal.

44    I am satisfied that s 75A would provide a basis for the making of the orders sought in this matter.

Pt 33 r 9 Argument

45    Pt 33 r 9 states;

Where the Registrar gives a direction or makes an order or does any other act in any proceedings, the court may, on application by any party review the direction, order or act and may make such order by way of confirmation, variation, discharge or otherwise and the court thinks fit.

46    Mr Zipser submitted that his submission that Pt 23 r 9 would provide a source of power, is contrary to the decision in Brougham v Dominelli Ford Hurstville Pty Limited NSW SC 17 February 1993. He submitted that such decision was wrong.

47    I am of the view that Brougham is not authority for the proposition that a Registrar’s act in entering up judgment under Pt 12 r 2(7) is not subject to review under Pt 33 r 9.

48    In Brougham Campbell J was dealing with an application by the person who signed the confession to have that confession set aside and to be allowed in to defend the matter. In that situation one can readily accept the decision of Campbell J that such application clearly falls within Pt 26 r 3 and it is eminently reasonable that the applicant in that matter would have to prove that the judgment was entered up ‘irregularly, illegally or against good faith’ and would have to show ‘misconduct or dishonourable conduct’ on the person who procured the judgment.

49 Campbell J was not dealing with the factual situation in this case where it is not the person who made the confession who is seeking to have the confession set aside, but the plaintiff whose solicitor, through oversight, failed to file a document the plaintiff would have required him to file. I have already found that the provisions of Pt 26 r 3 cannot be relied on by the plaintiff.

50 Whilst I agree with Campbell J that Pt 26 r 3 was the appropriate rule to deal with an application by the person making the confession to set aside the confession, I do not believe that such decision applies to the facts in this case. I am of the view that Pt 23 r 9 would be an appropriate rule to determine the plaintiff’s application in this matter, and a source of power to make the orders sought by the plaintiff.

The Natural Justice and Inherent Jurisdiction Argument

51    Mr Philips relying on the decision of Kirby P in Coles v Burke submitted that the Local Court does not have any inherent or implied jurisdiction to set aside a judgement. In that case which dealt with the powers of the District Court which in relation to setting aside a judgment similar to, or the same as the Local Court, Kirby P said;

“The power of the District Court to set aside judgments was relatively exhausted by the explicit provisions of the District Court Act and Rules.”

52    The decision of Kirby P was examined and discussed in great detail by Mason P in Hoskins v Van Den-Braak (1998) 43 NSLR 290. I have previously referred to that case and set out the facts.

53    Mason P found that Kirby P in Coles v Burke was dealing with a particular factual situation far removed from the factual position in Hoskins.

54    Mason P referred to the decision of Rich J in Cameron and also to Taylor v Taylor as follows;

In an oft-cited judgment in Cameron v Cole (1944) 68 CLR 571 at 589, Rich J said;
“… It is a fundamental principle of natural justice, applicable to all courts whether superior of inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case. If this principle be not observed, the person affected is entitled, ex debito justitiae to have any determination which affects him set aside; and a court which finds that it has been led to purport to determine a matter in which there has been a failure to observe the principle has inherent jurisdiction to set its determination aside ( Craig v Kanssen [1943] KB 256 at 262). In such a case there has been no valid trial at all. The setting aside of the invalid determination lays the ghost of the simulacrum of a trial, and leaves the field open for a real trial…”
This passage was cited with approval by Gibbs J in Taylor v Taylor (1979) 143 CLR 1 at 5 and 7. Gibbs J added (at 8):
“It is clear that the majority of the Court in Cameron v Cole accepted that a court whether superior of inferior, has inherent power to set aside an order made against a person who did not have a reasonable opportunity to appear and present his case.”

55    Mason P went on to find;

‘The passages in Cameron v Cole and Taylor v Taylor to which reference has been made, and the other cases discussed above, establish that the power to relieve against the type of injustice suffered by Mr Hoskins resides in the Local Court as an incident of its function as a court of justice; that the duty to set aside and/ore relieve against the consequences of a default order or judgment exists ex debito justitiae (that is, not as a matter of discretion, or subject to terms).’

56 I have found that Pt 4 r 2 does give me the power to make the orders sought by the plaintiff. I have indicated that I believe that Pt 1 r 5, Pt 33 r 9 and S 75A would also allow me the necessary power.

57    Should I be wrong in all of the above findings, I would then make the orders under the power to relieve against the type of injustice the plaintiff would otherwise suffer in not being able to pursue its claim based on the principles of Hoskins v Van Den-Braak.

58    I would propose the following orders:

(1) Pursuant to Pt 4 r 2 I extend the time for the plaintiff to file the Notice rejecting Confession to a date fourteen (14) days from the date of this judgment.
(2) The judgment entered against the plaintiff in the sum of $4,850.00 will, on the filing of the notice referred to in paragraph (1), be set aside.

I will hear from the parties on the question of costs.