THE NOMINAL DEFENDANT v DICKSON [1989] NSWCA 155

THE NOMINAL DEFENDANT v DICKSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, Hope and MEAGHER JJA 6 February 1989, 6 February 1989

[1989] NSWCA 155

PRACTICE — Court of Appeal — remitter of proceedings to a Division — appeal raises attack on judgment — allegation that judgment procured by fraud — proper procedure to seek setting aside of judgment in Equity Division — whether appeal should be remitted to Equity Division or dismissed — HELD: (Kirby P and Hope JA; Meagher JA dissenting). Appeal should be remitted to Equity Division. Discussion of purposes of remitter of proceedings or questions arising in proceedings in the Court of Appeal. Wentworth v Rogers (No 2) Court of Appeal, 21 May 1986, unreported, 1986 NSWJB 107; Wentworth v Rogers (No 5) (1986) 6 NSWLR 534 followed. Supreme Court Act 1970, s51(4).

ORDERS 1. Proceedings remitted to the Equity Division for trial in that Division; 2. Affidavits filed in the Court of Appeal transferred to the Equity Division; and 3. Claimant to pay the costs of the motion.

Kirby P In the Supreme Court the opponent commenced proceedings against the Nominal Defendant. The opponent alleged that he had sustained injuries and consequential damage caused by or arising out of the use of an unidentified motor vehicle on the Border Highway east of the city of Broken Hill on 9 April 1983. He sued the Nominal Defendant. The proceedings came before Enderby J. They were tried on 30 and 31 August 1988. His Honour decided the case in favour of the opponent on | September 1988.

From the judgment which his Honour directed to be entered the Nominal Defendant appealed to this Court.

The appeal at first proceeded in the normal way. It was listed for hearing on 3 February 1989. When, however, it became plain from certain affidavits which had been filed in the appeal that the essence of the Nominal Defendant's challenge to the judgment was a suggestion of fraud on the part of the opponent in securing the judgment, the matter came before the Court for the purpose of vacating the hearing date and for the consideration of the just trial of the proceedings, as now framed.