HASTIE v NIXON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CLARKE JA 21 December 1990, 21 December 1990 [1990] NSWCA 88 Clarke JA The first application before me is an application by Mr Hastie, the claimant, to amend the summons which he has filed, by seeking an additional order, that is, that the decision of Judge Downs in matter No 3556/89 made on 8 June 1990 be set aside upon the grounds that the judgment entered by his Honour could not stand in the light of the terms of the statement of claim, and that his Honour in any event failed to give reasons. Although, having regard to all the evidentiary material that has been put before me, I do not think there is greate deal of merit in the claim which is now sought to be made, I think it appropriate to grant leave to the claimant to amend the summons so that it reads in the terms I have indicated. I direct, in accordance with this grant of leave, the claimant to file and serve an amended summons containing the additional material by 4 February 1991. The substantive application before me is for a stay of proceedings. I should say at the outset that the case has been in the past a hopeless muddle. It would appear, from the claimant's sworn evidence, that he has a reasonable defence to the claim mounted by the opponent to the effect that he was an employee of a person who was named as the first defendant in District Court proceedings in which the orders have been made, leading to the case coming before this Court. His claim in that regard is supported by the terms of par 3 of the statement of claim which, in broad terms, states that he contracted with the opponent with the authority of the first defendant and/or that he was allowed and permitted by the first defendant to contract on her behalf as her duly authorised servant or agent. Although he had what appears to be a relatively simple defence to the claim, his legal advisers seem to have had numerous difficulties in putting that claim before the Court. Indeed, the defence which was filed, in effect, denied para 3 of the statement of claim, and stated that he did not have the authority of the first defendant. Faced with this defence and holding a written document which on first reading represents a strong admission of liability by the claimant, the opponent moved for summary judgment. For reasons which have never been explained but may be connected with negligence on the part of the claimant's legal advisers, the admission was neither explained nor denied before Judge Downs. His Honour was faced with a statement of claim which was in somewhat contradictory terms, a statement of defence which was, in my opinion, utterly hopeless, and evidence of a clear admission which was not denied. In these circumstances, it is not surprising that his Honour entered summary judgment. I should, however, indicate that I am not expressing a final conclusion that his Honour was justified in doing that for that question is a matter which will come before this Court in due course. All I am seeking to say is that it came as no surprise to me when I heard what was the material before his Honour, that summary judgment was entered. 2 UNREPORTED JUDGMENTS Following the entry of a summary judgment, there was an unsuccessful approach to this Court, followed by an application under Pt11A r2(3) to set aside the summary judgment. The Court under this rule is empowered to set aside such a judgment upon sufficient cause being shown. That application came before his Honour Judge Shillington, who, as appears from the terms of his judgment, was initially reluctant to deal with it, believing that it should go before Judge Downs. However, faced with the desires of the parties, his Honour did proceed to deal with it. In the course of that application, an affidavit was filed in which the claimant put before the Court his side of the story and he was cross-examined at some length. During the cross-examination, he said a number of things, some of which may be thought to have been not entirely consistent with other material he advanced, but one thing he did make relatively clear, I think, is that he had some confusion in his mind as to what an agent was, and for this reason thought that as he was an employee he was not an agent. The fact that he was an employee was categorically stated by him. His Honour in the end refused the application, primarily, as I understand it, because he was of the view that all the evidentiary material led before him could have been led before Judge Downs. He also took into account some delay which he thought had occurred, and said that he had formed the view this is not a matter which should be relitigated. It is not for me to say whether his Honour was correct or not in this view. The claimant seeks to challenge it in the proceedings initiated by his summons. I am, however, I think, at liberty to say that one important consideration which confronted his Honour was that the claimant had never had his day in Court. In other words, he had never been given the chance of having the action tried in the proper court. This, as it seems to me, is an important consideration which his Honour needed to weigh against the other factors which were clearly in support of the refusal of the orders sought. What I think has emerged is that the lack of opportunity for the claimant to have his day in court was not the fault of the opponent, but lay clearly at the door of the claimant's legal advisers. In the end I think there is a real question to be determined in the substantive proceedings and that is whether his Honour gave full account to that important factor in determining whether sufficient cause had been shown. In these circumstances, and bearing in mind the appalling delay and confusion caused by, in the main, the legal advisers for the claimant, I think that a stay should be granted, but upon strict terms as to payment to the legal advisers of the opponent of an amount of money on account of the costs which Judge Downs ordered be paid, and the costs of the motion presently before me which I order be paid by the claimant. Accordingly, the order I propose is that execution upon the judgment entered by Judge Downs on 7 June 1990 be stayed until the hearing of the summons or further order of the Court, or its automatic dissolution in the event that the claimant does not fulfil the condition which I am about to express. That condition is that the claimant pay to the solicitors for the opponent the sum of $5,000 on or before 20 February 1991 on account of the costs of the proceedings before Judge Downs and the application for a stay in this Court. URJ HASTIE v NIXON (Clarke JA) 3 I am mindful of the fact that the claimant is seeking to have Judge Downs' order set aside and that if this occurs, his order for costs would also go. Notwithstanding, I take the view that it is appropriate in the circumstances of this case that an order be made in the terms which I have already expressed. I reiterate an order should be made staying execution on the judgment until the hearing of the summons, further order of the Court, or failure on the part of the claimant to pay the sum of $5,000 on account of costs on or before 20 February 1991. Counsel for Claimant: TD BLACKBURN Counsel for Opponent: A M COLEFAX Solicitors for Claimant: GRAY and PERKINS Solicitors for Opponent: FOULSHAM and GEDDES