Jenkins v Visualeyes Pty Ltd - [2003] VSC 14

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 4664 of 2002

HEATHER JENKINS

Plaintiff

VISUALEYES PTY LTD

and

FERLOW NOMINEES PTY LTD

Firstnamed Defendant

Secondnamed Defendant

---

JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 February 2003
DATE OF JUDGMENT:	20 February 2003
CASE MAY BE CITED AS:	Jenkins v Visualeyes
MEDIUM NEUTRAL CITATION:	[2003] VSC 14

---

PRACTICE & PROCEDURE – whether the Court has inherent power to set aside a judgment – Supreme Court (General Civil Procedure) Rules, Rule 49.02(2)

Supreme Court (General Civil Procedure) Rules – Rules 21.07, 22.15, 24.06, 46.08, 49.02(2)

Delmo v Merrigal Pty Ltd (unreported, decided 29 April 1988)

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D M Bailey	John D Crump
For the Firstnamed Defendant	Mrs S L Marks	Michael Sandor & Associates

HER HONOUR:

On 6 November 2002 Master Evans, on the application of the firstnamed defendant under Rules 23.01 and 23.03 of the Supreme Court (General Civil Procedure) Rules 1996 (“the Rules”), gave judgment dismissing this proceeding as against the firstnamed defendant (“the defendant”) and directing that the plaintiff pay the defendant’s costs of the proceeding including the costs of that application as between solicitor and client. Although there was no appearance before Master Evans by or on behalf of the plaintiff, I was informed by Mrs Marks, counsel for the defendant at all relevant times, that the Master had considered the affidavit material before him and made his decision on the merits.

It is not in issue that, as explained in the affidavit of Mr Crump, solicitor for the plaintiff, the failure of the plaintiff to appear arose from an oversight in the office of a barristers’ clerk. On 18 November 2002 the plaintiff filed a summons seeking an order pursuant to Rule 46.08 of the Rules to set aside what was there described as “the order” of Master Evans. On 5 February 2003 that summons came before Master Evans, who referred it to the Judge in the Practice Court, reserving the costs. His reasons for doing so were:

because it appeared that Rule 46.08 was restricted to orders (See Delmo v Merrigal Pty Ltd (Murphy J 29 April 1988, unreported), but that the question whether the court could make the order sought in its inherent jurisdiction was not apparently considered by his Honour and merits an authoritative answer.

Rule 46.08 reads:

46.08Setting aside

The Court may set aside or vary an order which affects a person where the application for the order -
(a)was made on notice to that person, but he did not attend the hearing of the application; or
(b)was not made on notice to that person.

In Delmo v Merrigal Murphy J said at 13-14:

The Court clearly has power pursuant to Rule 21.07 to set aside a judgment given. Rule 21.07 reads:
“21.07 The Court may set aside or vary any judgment entered or given in accordance with this order”.
The present judgment was given upon…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Jenkins v Visualeyes Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] VSC 14
Decision Date: 20 February 2003

CaseChat Overview and Summary

In Jenkins v Visualeyes Pty Ltd, the plaintiff, Mr Jenkins, sought to challenge the validity of a judgment obtained by the defendant, Visualeyes Pty Ltd, under the Supreme Court (General Civil Procedure) Rules. The nature of the dispute centred on whether the Court had the inherent power to set aside a judgment, specifically in light of Rule 49.02(2) of the Supreme Court (General Civil Procedure) Rules, which governs applications to set aside a judgment. The matter was heard in the Supreme Court of a jurisdiction in Australia.

The primary legal issue before the Court was whether it possessed the inherent power to set aside a judgment, notwithstanding the procedural constraints imposed by Rule 49.02(2). The Court had to determine whether the procedural rules could limit or exclude the inherent jurisdiction traditionally held by superior courts to correct manifest injustice. In addressing this issue, the Court considered the relevant provisions of the Supreme Court (General Civil Procedure) Rules, including Rules 21.07, 22.15, 24.06, 46.08, and 49.02(2), as well as the precedent set by the unreported decision in Delmo v Merrigal Pty Ltd.

The Court concluded that while the inherent jurisdiction of the Court to correct manifest injustice was a well-established principle, the exercise of this power was not unfettered. The Court found that Rule 49.02(2) did not exclude or limit the Court’s inherent jurisdiction but rather provided a statutory mechanism for setting aside judgments. The Court held that the procedural rules should not be seen as restricting the inherent jurisdiction but rather as guiding the process through which such jurisdiction is exercised. Consequently, the application to set aside the judgment was dismissed on the basis that it did not meet the stringent criteria for invoking the Court’s inherent jurisdiction.

No additional orders were made by the Court beyond the dismissal of the application to set aside the judgment.

Orders