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. Of course, I have no views of whether the District Court ought, or ought not, to provide the relief that will be sought. That will depend upon the material placed before that Court and whether the Judge of that Court is of the view that sufficient cause has been shown, within the rule. Iam told that the matter, if commenced immediately in the District Court (and allowing always for the intervention of Easter) would probably come on within the space of time which I contemplate for the stay, namely, six weeks. Upon that footing I will provide the stay for such period and for such purpose. However, I make it clear that, if the District Court disposes of the application in a shorter time, the matter may come back to this Court immediately, if it is then still necessary. Likewise, if the District Court cannot, in its exigencies of its list, come to the proposed application within the six week period, the Registrar may administratively, on the application of both parties, stand the matter over for a JOBNAME: No Job Name PAGE: 2 SESS: 1 OUTPUT: Mon Feb 25 18:09:48 2008 /reports/caseml]/case/urj/9305304 UNREPORTED JUDGMENTS further period so that it next comes to this Court after the District Court has disposed of its further part in this saga. In that event, if it be necessary, the parties can approach me or a Judge of Appeal for the purpose of considering an application for an extension of the stay. 5 The orders which I make for these reasons are: 1. Order that execution of the judgment and orders entered by his Honour Judge J B Phelan in the District Court on 5 February 1993 be stayed until Monday, 10 May 1993, at 4 pm, or until such further or other time as may be ordered by a Judge of Appeal;2. Note the undertaking to the Court given on behalf of the appellants, Wayne Pirozich and Frank Pirozich, that they will, with expedition, prosecute an application in the District Court of New South Wales for relief from the orders of Judge Phelan pursuant to the provisions of part 26 rule SA (ii) of the District Court Rules; . Grant liberty to either party to relist the motion before this Court at an earlier or later time upon two days" notice to the other party; and . Order that the costs of the proceedings before the Court today be respondent's costs in the appeal. It is my intention that the liberty to apply should be available to either party for an extension or termination of the stay herein provided. Orders accordingly. Counsel for the claimant: H J Halligan Solicitors for the claimant: B J Bunyan and Associates Counsel for the opponent: C Simpson Solicitors for the opponent: Bryden Doherty and Shead