3.68: Court options to deal with significant deficiencies
9.15: Setting aside, varying and discharging judgments and orders
9.16: By whom applications are to be decided

Case Summary

In the Court of Queen’s Bench, the self-represented Appellant, Mr. Somji, noted the Defendants in default and obtained Default Judgments from Justice Wilson. Counsel for the Defendants appeared before Wilson J. shortly thereafter, at which time the Default Judgments were set aside on the basis that the Defendants had not been served. The latter Application was made pursuant to Rules 9.15 and 9.16. The Appellant appealed and subsequently discontinued that Appeal.

On January 4, 2013, the Appellant brought an action against Wilson J. and counsel for the Defendants for their involvement in setting aside the Default Judgments. He alleged deceit on the part of counsel, and a lack of capacity on the part of Wilson J. The claim exceeded $1.5 million. Jones J. struck the Statement of Claim against the Respondents pursuant to Rule 3.68.

The Court of Appeal upheld this decision, stating that the complete answer to the allegations against Wilson J. was apparent on the face of Rules 9.15 and 9.16, since Rule 9.16 states that an Application to Set Aside must be decided by the same Judge or Master who heard the Order. Further, Wilson J. was entitled to immunity on the basis that he was acting in his judicial capacity.

With respect to the allegations against counsel for the Defendants, the Court of Appeal agreed with Jones J. that there were no breaches of duties and, accordingly, no cause of action could be brought in the circumstances.

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