HASTIE v NIXON t/as MONTEITH WOOLS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MEAGHER JA 3 September 1990 [1990] NSWCA 87 Meagher JA In this matter, in an action commenced in the District Court, Mr Nixon sued the defendants, one of whom was a Mr Hastie, for judgment. In the course of those proceedings he (Mr Nixon) took out a motion for summary judgment which was successful. The defendant, in the District Court proceedings, Mr Hastie, has now purported to appeal as of right to this Court against his Honour's entry of summary judgment. Since the present proceedings have commenced here he has also taken out further proceedings in the District Court to set aside the summary Judgment. The respondent in this Court, who is the plaintiff in the District Court, has moved this Court for inter alia an order that the appeal purportedly instituted be struck out. The question concerns the ambit of the decisions of this Court in Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86, Frazer Credits Pty Ltd v Osberg Elsen (1978) 1 NSWLR 21 and Elcalza v Superior General of the Order of Sisters of Charity, (NSW Court of Appeal, unreported, 8 April 1987). Those decisions obviously are binding on me and it is not sought by the respondent to re-argue them. Bearing in mind the date of the decision in Clutha Developments, it would doubtless be an unprofitable exercise to seek to re-argue them. Those cases decide that the right of appeal from the District Court to the Supreme Court lies only in an action, but not in a decision in proceedings ancillary to an action. In one case, the proceedings were to set aside a default judgment; in the other two cases they were proceedings for an extension of limitation. In none of the three cases was the Court concerned with a motion for the entry of summary judgment. However, the claimant in the present motion, the plaintiff in the District Court, has urged upon me that the ratio of the cases is that the distinction between an action and proceedings ancillary to an action is as this Court has said, that an action is a complaint initiated by a statement of claim in which a claim is made for a sum of money and which ends, if successful, in judgment for the recovery of such amount as the Court may find to be due. That form of language was based on the decision of this Court in Martin v O'Riley 14 SR 277 and was specifically adopted by McHugh JA with the concurrence of his brethren in the Elcalza Case. In the present case, the order purportedly appealed form does not fit that description. It is manifestly initiated by a notice of motion and not by a statement of claim. In that respect it certainly does not fulfil the requisite definition of an action. On the other hand, it did result in a judgment for a sum of money, and in that respect it differs from the sort of decisions which were under consideration in the instances to which I have referred. 2 UNREPORTED JUDGMENTS However, I doubt if even in this respect it quite fulfils the definition of an action laid down by this Court in Martin v O' Riley. what that definition requires is that the end result is a final judgment for a sum of money and unconditional judgment for that sum of money. In the present case, bearing in mind that under the provisions of the District Court Rules Ptl1A R2(iii), any summary judgment can itself be set aside, a judgment such as has been obtained here is always conditional, defeasible and interlocutory. Therefore, in no respect, it seems to me, does the motion for summary judgment, even if successful, comply with the definitions this Court has adopted for an action, namely a proceeding initiated by a complaint, which ends successfully, in a judgment for recovery of a sum of money. For these reasons, I am of the opinion that the notice of motion should succeed. The question is also debated whether the further amended notice of grounds of appeal should be struck out, because they were vexatious proceedings or because they were oppressive. It is undoubtedly the law, which neither side would challenge, that no person can ordinarily pursue two sets of proceedings in two different courts seeking the same relief, and fairly clearly, where the defendant in the present case is both endeavouring to appeal to this Court to have summary judgment set aside and, independently, proceeding in the District Court for orders to the same effect, one, or other set of proceedings must be oppressive and vexatious. The defendant does not seem to have elected which proceedings it wishes to prosecute. In these circumstances if it were necessary to do so, I would be minded to hold that the attempted appellate proceedings in this matter are vexatious. However, it is not necessary for me to do so, as I am of the view that the amended notice of grounds of appeal should be struck out in any event. Subject to further argument from the parties' representatives, I would be minded to make O.3 and O.4 as sought in the notice of motion of 6 August 1991. In that case the orders of the Court will simply be O.3 and O.4 as in the notice of motion of 6 August 1990.