PIROZICH v TEDESCHI [1993] NSWCA 213

PIROZICH v TEDESCHI SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

KirBY P 5 April 1993

[1993] NSWCA 213

PRACTICE & PROCEDURE — Court of Appeal — District Court judgment entered ex parte — stay of execution — proposed application to set judgment aside DCR Pt 26 r 5A — held: Stay granted on terms.

Kirby P. Before the Court is an appeal from a judgment entered by his Honour Judge J B Phelan in the District Court at Liverpool on 5 February 1993. The appellants claim that they were not given a trial on merits. They raise various other grounds of appeal. The absence of a trial on merits, as alleged, appears to have arisen from the absence of the appellants from the District Court when the matter was called on by his Honour.

Counsel for the respondent has very usefully drawn attention to part 26 rule 5A of the District Court Rules. These provide that, upon sufficient cause being shown, a Judge of the District Court may set aside an order of the Court on terms that apply in a case where, as here, the plaintiff did but the defendants did not appear and the matter proceeded to trial in the absence of the defendants.

The remedies in this Court in an appeal in a case such as the present may be narrower than those which are available in the District Court under its rules. Those rules appear to be in ample terms. If on proper terms and with submissions it was shown the District Court should set aside the order of Judge Phelan now under appeal, the intervention of this Court would be unnecessary.

The appellants have not made application under part 26 rule SA DCR for the very good reason that, until counsel for the respondent drew the rule to attention, they were as ignorant of it as I was. Having been alerted to its existence, the appellants now intend to make application to the District Court in Sydney for relief under the rule. It is appropriate to provide a stay for at least sufficient time as will permit such application to be made and sufficient time to afford the District Court the opportunity to consider it.