O'Neill v Schlatter[1998] QCA 175

COURT OF APPEAL

de JERSEY CJ

DEMACK J

CHESTERMAN J

CA No 4670 OF 1998

VINCENT WAYNE O'NEILL                  Appellant (Defendant)

and

BEAT SCHLATTER                         Respondent (Plaintiff)

BRISBANE

DATE 16/06/98

JUDGMENT

CHESTERMAN J:  The applicant seeks leave to appeal from the order of Wall QC DCJ made on 29 April 1998 in which his Honour:

 (a)  gave the respondent leave to renew his plaint for a   period of twelve months from 29 April 1998;

 (b) enlarged the time for making the application to renew the plaint;

 (c)  gave the respondent leave to proceed generally with   his action.

The respondent commenced an action claiming damages for personal injury by the issue of a plaint on 29 May 1990. He had been injured in a motor vehicle accident on 9 February 1987. Because he was an infant at the time of the injury, the limitation period in respect of his course of action did not expire until 26 May 1992. The plaint was never served.

On 24 March 1998, almost six years after the expiration of the limitation period and two months short of eight years after the issue of the plaint, the respondent's solicitors wrote to the applicant and his compulsory motor vehicle insurer inquiring whether they had ever been served with the plaint.

Before receiving a reply the respondent, on 23 April 1998, filed a summons returnable before the District Court at Townsville on 29 April 1998. The summons was not intended to be served, nor was it, on either the applicant or his insurer.

The hearing proceeded ex parte and the District Court judge made the orders set out above.

If leave to appeal is granted the applicant will seek an order that the orders made by the District Court be set aside or that they be set aside and reheard inter partes by another judge of the District Court.

The proposed grounds of appeal fall into two classes. The first objects to the ex parte nature of the hearing and seeks to have the orders set aside on the ground that the applicant, having been deprived of a hearing to oppose the orders, was deprived of natural justice.

The second is that the orders ought not to have been made on material put before the judge by the respondent.

The applicant justifies his request for leave to appeal on the basis that no other avenue is available to challenge the orders made ex parte by the learned judge. The respondent disputes this and submits that the applicant should have applied, and may still apply, to the District Court to set aside the ex parte orders made on 29 April 1998.

It seems clear that an appeal is unnecessary and leave to appeal ought not be granted if the applicant may approach the District Court to have the respondent's application reconsidered at a hearing at which both parties are represented.

Rule 333 of the District Court Rules contains, so the respondent submits, the requisite power. The rule provides, relevantly sub-rule (2): 

 "(2) In so far as no other form of procedure is prescribed by any Act or rule, applications in any proceeding shall be made in accordance with this rule."

Sub-rule (3) says:

 "(3) Unless permitted or required by any Act or rule to be made ex parte and subject to the provisions hereinafter contained, applications in any proceeding shall be made on notice."

Sub-rule (5) sets out three circumstances in which applications may be made ex parte, though ordinarily they would be required to be made on notice. Importantly, sub-rule (6) says:

 "(6) Any party or persons against whom an order has been made ex parte under this rule may at any time apply to the court or a judge on notice to vary or rescind the order and on the hearing of the application the court or a judge may vary or rescind the order and make such order as may be just."

The applicant's submission is that it was only the application for leave to proceed after a lapse of three years in which nothing happened in the action which may be made ex parte. Rule 377(2) provides that leave is necessary for taking a step more than three years after the last step and that the order of the court may be made either ex parte or on notice.

The other applications to renew the plaint and for an extension of time in which to renew the plaint are governed by Rules 52 and 53 and Rule 375 respectively. None of these rules expressly permit the application to be made ex parte. The applicant therefore says that those orders were made without jurisdiction but were not made under Rule 333 so that the right to move the court given by sub-rule (6) of that rule is not available, that right being limited to vary or rescind an order made ex parte "under this rule".

This does not appear to be right. Rules 52 and 53 have application only in circumstances where a defendant has not been served with the plaint. It would seem implicit in the rule that, in the ordinary case, the defendant will not receive notice of the application to renew the plaint which will proceed ex parte.

The same is true of Rule 375 in so far as it is called in aid of an application to renew the plaint after the expiration of twelve months from its issue. It will follow that the orders made by the learned judge were made pursuant to Rule 333(3) and the power to apply to have them set aside given by sub-rule (6) is available to the applicant.

Even if this be wrong it is clear that the District Court has inherent jurisdiction to set aside orders made ex parte. That inherent power subsists even though the District Court is an inferior court created by statute. The decision of the High Court in Taylor v. Taylor (1979) 143 CLR 1 compels this conclusion. In that case the Family Court, another court created by statute, made orders for the transfer of property between the parties to a marriage in the absence of the husband. The husband applied for, and was granted, an order by another judge of the Family Court varying the terms of the property settlement ordered by the court.

The full Family Court held that the husband's application should have been refused because the court had no power to set aside its earlier order.

The High Court held that the Family Court, despite being a Court of limited statutory jurisdiction, did have inherent power to set aside an order made ex parte. Gibbs J said at page 6:

 "In Woods v. Sheriff of Queensland, Griffith CJ said:

  'When an order is made ex parte, the court or judge making it may, upon application of any person prejudicially affected by the order, review and, if necessary, discharge it. This is a rule of natural justice.'"

Gibbs J went on:

 "If the law is correctly stated by Griffith CJ in the first sentence of the passage cited, the Family Court had power to set aside the order made by Woodward J, which, as I have indicated, is to be treated as if it had been made under the Family Law Act. The rule laid down by Griffith CJ seems to me to be in accordance with justice and common sense; it enables a court to set matters right when there has been a failure to observe an essential requirement of natural justice."

At page 8 of the report his Honour said:

 "It is clear that the majority of the Court in Cameron v. Cole accepted that a Court, whether superior or 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. It seems immaterial in the present case whether the Family Court is regarded as ... a superior court of limited jurisdiction. In that respect it occupies a similar provision to the Federal Court of Bankruptcy considered in Cameron and Cole. No provision of the Family Law Act deprives the Family Court of this inherent power ..."

Stephen J agreed with Gibbs J.  

Mason J adopted similar reasoning. His Honour said at page 16:

 "Although the Family Court is a court created by statute it none the less possesses an inherent jurisdiction to set aside a judgment obtained by default. Three members of this Court ... concluded in Cameron v. Cole that the Federal Court of Bankruptcy had an inherent jurisdiction to set aside its orders, notwithstanding that it was a statutory court and, further, that it was a court of limited jurisdiction.   A jurisdiction to set aside its orders is inherent in every court unless displaced by  statute."

In these circumstances the applicant may, by right, apply to the District Court to have the application reheard. An appeal is not necessary to set aside the orders made ex parte.

In my opinion the application should be dismissed.

DEMACK J:  I agree.

THE CHIEF JUSTICE:  I also agree. The notice of motion is dismissed.

MR MUNT:  I apply for costs, your Honours.

THE CHIEF JUSTICE:  Mr Fleming?

MR FLEMING:  I can make no comment about that, your Honour.

THE CHIEF JUSTICE:  With costs to be taxed.