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. It was at that time that the Court, differently constituted, referred counsel to the decision of the Court in Wentworth v Rogers (No 2), Court of Appeal, 21 May 1986 (unreported) 1986 NSWJB 107. See also Wentworth v Rogers (No 5). In Wentworth v Rogers (No 2) Mahoney JA (with whom the other members of the Court agreed) pointed out that, where a judgment is attacked on the ground of fraud, the appropriate course in the normal case is for the party alleging such fraud to commence proceedings in the Equity Division of the Court to have the judgment set aside upon that ground. The matter is now before us on a motion by the Nominal Defendant for the remitter of the proceedings to the Equity Division of the Supreme Court and for orders that the affidavits filed in the proceedings be treated as having been filed in the Equity Division. In my opinion such an order should be made. It may be made pursuant to s51(4) of the Supreme Court Act, 1970. That section provides: 2 UNREPORTED JUDGMENTS "51(4) Where any proceedings are pending before the Court of Appeal, the Court of Appeal may, on application by a party or of its own motion, order that the whole or any part of the proceedings be remitted to a Division for the determination by trial or otherwise of the proceedings or any question arising in the proceedings." The opponent has legitimate complaints about the way in which the issues have been refined in this Court. The issue of fraud, which will always be alleged on instructions and pleaded with particularity, is not so pleaded in the notice of appeal which was originally filed. Nor indeed is it clearly alleged in other documents which are before the Court. However, counsel appearing for the Nominal Defendant tells the Court, on instructions, that that is the only present basis of the challenge to the judgment of Enderby J. The opponent can also complain of the languid way in which the matter has proceeded and the delay which would be occasioned by the remitter of the matter to the Equity Division. The Court was informed that there would be significant delays in that Division, having regard to the state of its list. Notwithstanding these matters, which may sound in orders for costs which the Court can, in due course, make, it is appropriate to remit the matter to the Equity Division. I say that having regard to what the Court said and did in Wentworth v Rogers (No 2), (above). I bear in mind particularly the difficulty which is experienced in a three-member Court in trying issues of fact, and the special difficulty which would arise in trying a contested issue of fraud. LT also bear in mind the disadvantage to the opponent which would be suffered if the matter proceeded in this Court. There would then be no appeal as of right to review the factual findings made on the issue. The only appeal that would lie from an order of this Court would be to the High Court of Australia and that only by special leave. A question arises as to whether the Court should not, in the unsatisfactory state of the pleadings and the delays which have occurred to date, simply dismiss the appeal without prejudice to the entitlement of the Nominal Defendant to commence his challenge to the judgment below by proceedings in the Equity Division. I have considered that course. However it appears to me that the most practical and expeditious way of bringing this litigation to conclusion is to remit the matter to the Equity Division. That will involve some saving of costs in the re-engrossment of documents. It will also save some time. Necessarily it will require the refinement of the issues for trial in the Equity Division. They will be different from those originally framed for decision in this Court. But this will be so in every appeal remitted from the Court of Appeal to a Division. It must be taken to have been contemplated by the Act. Counsel for the Nominal Defendant should be required to file in this Court a statement of the proposed issues now for trial. This can, in due course, be remitted to the Equity Division with the Court's file. Another possible disadvantage of the simple dismissal of the proceedings without prejudice to the right to commence in the Equity Division, is this. If, ultimately, an appeal were brought to this Court, it is possible that a different question, though pertinent to fraud, could arise in an appeal from Enderby J's judgment which the Court may wish to consolidate with any appeal which is brought from the order of the judge of the Equity Division disposing of the question of the allegation of fraud. Remitter of the proceedings at this stage keeps that possibility alive. URJ THE NOMINAL DEFENDANT v DICKSON (Meagher JA) 3 For these reasons which are, in essence, those which were stated by the Court in explaining the course it took in Wentworth v Rogers (No 2), it is my opinion that the following orders should be made: 1. That the proceedings should be remitted to the Equity Division for trial by that Division. 2. That all affidavits filed in the Court of Appeal should be transferred to the Equity Division. When a matter is remitted to a Division it is then within the control of that Division. It is not for this Court to control the proceedings in the Division. However, without in any way wishing to interfere in the list of the Equity Division, it is appropriate to say that for two reasons it may be proper for that Division to consider the expedition of the hearing of the proceedings so remitted. The first reason concerns the delays to which I have already referred. The second concerns the public interest which exists in the disposal of an allegation of this kind affecting, as it does, the validity of a judgment entered by the Court. As I stated in the course of my reasons, counsel for the Nominal Defendant is required by 4.15 pm on Wednesday 8 February 1989 to file in the Court a schedule setting out what the Nominal Defendant says will be the issues for trial in the Equity Division. Meagher JA I am afraid I do not agree. In my view the application should be dismissed withcosts but without prejudice to the claimant's right to commence such proceedings in the Equity Division as it seems desirable. The reason why I take that view is that it is clear enough that it would be inappropriate for this Court itself to decide the question of fraud or no fraud. In my view we should not exercise our remitter jurisdiction, except to remit to a Division matters which otherwise would be within our proper jurisdiction. In this case I would have made the orders I suggested. For these reasons which are, in essence, those which were stated by the Court in explaining the course it took in Wentworth v Rogers (No 2), it is my opinion that the following orders should be made: 1. That the proceedings should be remitted to the Equity Division for trial by that Division. 2. That all affidavits filed in the Court of Appeal should be transferred to the Equity Division. The Court orders that the claimant pay the costs that have been occasioned to date by the proceedings on the motion in the Court of Appeal. Counsel for the Claimant: A Renshaw Solicitor for the Claimant: R Aquilina Counsel for the Opponent: C Branson