Failure to open appellants’ affidavit to court resulted in breach of natural justice in summary judgment proceedings

Whelan J (nem diss): Appeal of a decision to grant summary judgment in favour of the respondent bank as against the appellants - a replying affidavit was sworn by the second appellant which expressly said that it was on behalf of both defendants - the appellants affidavit contested liability and disputed the bank’s entitlement to summary judgment - the respondent also replied by affidavit - solicitors for the appellants believed that there was an agreement between the parties that the matter was not suitable to be dealt with in a Monday list and that there was an agreement that the matter would be transferred by consent to the non-jury list - nobody attended the High Court on the day the matter was listed - the respondent bank indicated on the day of hearing that the appellants would not be attending, that a replying affidavit had been filed on behalf of the second appellant only and that they were seeking to proceed with their application - the respondent opened some of the paragraphs of the first affidavit sworn on its behalf but did not open any of the other affidavits - High Court granted summary judgment against both parties - Order 36, rule 33 of the Rules of the Superior Courts - whether the appellants should have used this mechanism under the rules to set aside judgment obtained in its absence rather than by proceeding by way of an appeal - whether the trial judge erred in failing to consider the affidavit of the appellants - whether the appellant's failure to attend was due to inadvertence or a mistake - appeal allowed - matter remitted to the list to fix dates in the non-jury list in the High Court.