Abacus Australia Ltd v Bradstock G I S Pty Ltd

[2000] VSC 111

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4779 of 1998

ABACUS AUSTRALIA LTD.	Plaintiff
v.
BRADSTOCK G.I.S. PTY. LTD.	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 MARCH 2000
DATE OF JUDGMENT:	24 MARCH 2000
CASE MAY BE CITED AS:	ABACUS AUSTRALIA v. BRADSTOCK G.I.S.
MEDIUM NEUTRAL CITATION:	[2000] VSC 111

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CATCHWORDS:      Practice and Procedure – Self-executing order – Failure to comply – Judgment entered in default – Application to set aside judgment – Delay – No explanation for delay – No compliance with original order – No explanation for failure – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr. M. Phipps QC	Keith Hercules
For the Defendant	Mr. M. Boland	Gadens Lawyers

HIS HONOUR:

1. These reasons for judgment are to be read in conjunction with my reasons for judgment in this proceeding delivered on 24 March 1998.  On that date, I made the following orders in the matter:

"1.Pending the hearing and determination of this  proceeding or further order, the Defendant, by itself, its servants or agents or howsoever otherwise be restrained from:

(a)using information the Defendant has received while acting as insurance broker for the scheme or arrangement for insurance maintained by the Plaintiff on behalf of its members for insurance against professional liability as accountants being the names and addresses of members of the Plaintiff, particulars necessary for the completion of a proposal for professional indemnity insurance and the issuing of a professional indemnity insurance policy and the payment of subscriptions ("the confidential information") for the purpose of:

(i)writing to or otherwise communicating with members of the Plaintiff for the purpose of soliciting or otherwise attempting to obtain the professional indemnity insurance business of the members of the Plaintiff;

(ii)attempting to obtain proposals for professional indemnity insurance from members of the Plaintiff;

(b)communicating the confidential information to any person other than the Plaintiff, the insurer to the insurance scheme or solicitors, investigators or others retained by the insurers to the insurance scheme and the Plaintiff for the purposes of the insurance scheme.

2.      The Defendant deliver up to the Plaintiff:

(a)any proposals for professional indemnity insurance received by the Defendant from members of the Plaintiff for the period commencing 1 April 1998;

(b)all copy insurance policies, copy proposal forms, quotations, statements and other documents received or created by the Defendant while acting as broker for the insurance scheme."

1. At the time I made those orders, I said this:

"I consider that Abacus has a strong case against Bradstock, and that unless Bradstock is restrained, it will cause serious loss to Abacus.  In that situation, I consider Abacus is entitled to the injunctive relieve it seeks." 

1. Following the delivery of my judgment on that  occasion, the plaintiff delivered its statement of claim; that was done on 4 November 1998.  On 13 May, it served a notice of discovery on the defendant, and on 6 July gave notice of default in discovery to the defendant.  On 16 June 1999, Master Bruce made an order that by 26 July 1999 the parties serve on each other and file prior proposals for a timeable for further interlocutory steps with the Associate to the Master, and then appointed 29 July as the date for the next directions hearing.

1. The matter came before the Master on 29 July 1999.  At that stage the defendant had still not complied with the notice of discovery which had been served on it on 13 May 1999.  On that day, and by consent of the parties, Master Bruce made, inter alia, the following order:

"2.By 4 p.m. On 26 August 1999 the defendant give discovery of documents and in default the defendant's defence be struck out."

1. The defendant did not comply with that order and on the application of the plaintiff made to me on 9 November 1999 I entered judgment for the plaintiff in the terms of the orders I had made on 24 March 1998.

1. On 10 March 2000 the defendant filed in the court a summons seeking to have the judgment entered on 9 November set aside.  In my opinion, that summons must be dismissed.  I say that for the following reasons. 

1.        The defendant still has not complied with the order of Master Bruce made on 29 July 1999, nor has it provided to the court any explanation for its failure in that regard.

2.        The defendant has not provided to the court any explanation for its failure to make application to set the judgment aside prior to today.  The judgment was entered on 9 November and here we are, close to five months down the track, before the defendant makes its present application. 

3.        Although I expressed the view on 24 March that there was a serious issue to be tried in the proceeding, in my view, the case for the plaintiff on liability is overwhelming, and that too I consider is a basis why the judgment should not now be set aside. 

1. I order that the defendant's summons filed 10 March be dismissed with costs to be taxed and paid to the plaintiff.

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