Hailey & Anor. v Aristocrat Technologies Australia Pty. Ltd

[2005] NSWCA 302

CITATION:	Hailey & Anor. v. Aristocrat Technologies Australia Pty. Ltd. [2005] NSWCA 302
HEARING DATE(S):	2 September 2005
JUDGMENT DATE:	2 September 2005
JUDGMENT OF:	Hodgson JA at 1; Bryson JA at 9
DECISION:	Application for leave to appeal dismissed with costs.

CATCHWORDS:	PROCEDURE - Consent orders - Entry of judgment - Whether can be set aside - Whether this can be done in proceedings for review of Registrar's decision - Need for strong considerations of justice.
CASES CITED:	Harvey v. Phillips (1956) 95 CLR 235 Neale v. Gordon [1902] AC 465
PARTIES:	Terry Edward Hailey - 1st claimant Meghan Lee Henderson - 2nd claimant Aristocrat Technologies Australia Pty. Ltd. - opponent
FILE NUMBER(S):	CA 41096/04
COUNSEL:	Mr. R. Killalea for claimants Mr. A. McGrath for opponent
SOLICITORS:	Rob Makin & Associates, Sydney for claimants Phillips Fox, Sydney for opponent

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S):	SC2416/03
LOWER COURT JUDICIAL OFFICER:	Master McLaughlin

CA41096/04

HODGSON JA
BRYSON JA

Friday 2 September 2005

HAILEY & ANOR. V. ARISTOCRAT TECHNOLOGIES AUST. PTY. LTD.

Judgment

1 HODGSON JA: In my opinion the claimants in this application for leave to appeal have an arguable case to the effect that consent orders made by a Registrar can be challenged in the review procedure, and perhaps can be so challenged even after entry of judgment. To that extent then, there is I think an arguable case that the Master made an error in his judgment.

2 However in my opinion, normally such a challenge would require at least grounds on which an ordinary contract would be set aside; and in this case, although there is evidence of lack of actual authority in the solicitor to agree to the settlement, there is no evidence to challenge the ostensible authority which a solicitor on the record has to settle a matter; and so in my opinion no basis is put forward which would amount to a ground for setting aside a contract.

3 If the question at issue was the enforcement of a contract to settle a case, then it seems clear that the Court may refuse to do so even in the absence of grounds sufficient to set aside the contract: see Harvey v Phillips (1956) 95 CLR 235 at 242-3. That case, and also Neale v Gordon Lennox [1902] AC 465, suggest that, at least until judgment is entered, the Court may decline to give effect to a settlement on grounds falling short of grounds adequate to set aside a contract.

4 Those cases leave open a possibility that the Court may even set aside a judgment that has been entered, on grounds insufficient to set aside a contract; but, so it seems to me, leave this possibility open only in circumstances where strong considerations of justice are shown that require this course.

5 In the present case, the Court enquired as to the substantive defence that would be advanced if the judgment were set aside, and we were referred to defences that had been filed by the defendants. However, there was no additional material setting out in a substantive way the facts that the defendants would rely on, although, as pointed out by Mr Killalea, the defences which were sworn did refer to particular meetings at which it was said there were discussions with named people, which were part of the defence relied on.

6 It seems to me that if this were an application to set aside a default judgment, the applicant would have to show a defence on the merits; and normally merely to point to a proposed defence would not be regarded as sufficient. In my opinion, what would be required to suggest the kind of injustice that might trigger the possible residual jurisdiction of the Court, to which I have referred, is considerably more than would be required just to set aside a default judgment; and I think the material produced by the claimants falls far short of that.

7 There are the additional considerations that there was a very long delay between the consent to the judgment and the making of the application to set aside, coupled with the circumstance that the claimants participated in the payment by another defendant of part of the judgment amount with knowledge that a settlement had taken place, these events occurring many months before the application was made.

8 In all the circumstances, in my opinion there is a negligible chance that the claimants would on an appeal persuade the Court of Appeal to set aside the judgment that had been entered; and for those reasons in my opinion this application should be dismissed with costs.

9 BRYSON JA: I agree with what Hodgson JA has said. I wish to refer to one or two matters for emphasis.

10 First, it does appear to me to be arguable that the Court has power, it would seem under its inherent powers, to set aside a final judgment which has been entered. The judicial opinion supporting that view known to me is no higher than dicta, dicta it is true from the House of Lords and it may be the High Court of Australia; arguable though the question is, it may well be the better resolution that it is only in cases where a judgment is shown to have been obtained by fraud that a final judgment can be set aside, and then not in an application made in the proceedings themselves. It is not an aspect of the facts of this case that the opponent was in any way involved by knowledge or otherwise in the claimants becoming committed to a judgment which they claim they had not consented to.

11 Another observation is that, if there were to be an appeal, I cannot see how it could succeed without the claimants as appellants persuading the Court to admit in evidence a body of material of which we could only at this point dimly see the outlines, none of which could be said to be fresh evidence and of which it is in my view not possible to foreshadow any special grounds for its admission. I support the order proposed by Hodgson JA.

12 HODGSON JA: The order of the Court is as I have indicated. The application for leave to appeal is dismissed with costs.

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