Allen v Mark Flynn & Associates Pty Ltd

[2011] QDC 175

[2011] QDC 175

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 547 of 2011

DEARNE MAREE ALLEN	Plaintiff
and
MARK FLYNN & ASSOCIATES PTY LTD	Defendant

BRISBANE

..DATE 08/08/2011

ORDER

CATCHWORDS

Uniform Civil Procedure Rules 1999 r 302

Defendant's application to set aside default judgement for damages to be assessed dismissed with costs when defendant failed to appear at the hearing.
HIS HONOUR:  Before the court is the defendant's application filed on the 30th of June 2011 seeking the setting aside of a default judgment entered on 15th of June 2011.  The application is based on rule 302.

When called the defendant applicant failed to appear.  That is perhaps curious as the defendant is a solicitor practising in Ballina facing in this proceeding a claim for damages for breach of contract or professional negligence based on the firm's failure to take timely steps to protect the interests of the plaintiff, at relevant times the firm's client, in respect of a motor vehicle accident in Brisbane in which she was injured on the 25th of April 2005.

It is the plaintiff's submission that in the circumstances of non-appearance of the defendant its application ought to be dismissed with costs.  I agree with that.  It becomes important to ensure that the defendant knew of today's date.  The original return date of its application was 18th of July 2011, on which date Judge Jones adjourned it until today, reserving costs.

The associate's endorsement on the court's order sheet does not show what appearances there were on that day.  My associate's inquiries of her reveal that she has notes indicating that Shine Lawyers appeared for the plaintiff and Mr B S Dulley of Bruce Dulley Family Lawyers appeared for the defendant.  In those circumstances it's reasonable for the court to proceed on the basis that the defendant knows about today.

While my associate was making her inquiries the possibility of evidence being presented as to the defendant's direct knowledge of today as a hearing date was discussed.  It's believed that a person working for Shine Lawyers, not the instructing person in court today assisting Mr Forbes, who argued the application, may be able to give evidence that in a telephone conversation last Friday, the point of which was to get for Shine Lawyers a copy of the defence as filed, reference to today's hearing date may have been had. 

It's not necessary, it seems to me, in the circumstances, to require evidence of that kind, but it might be prudent for Mr Forbes to ensure that in case of need, which I anticipate will arise, that evidence is available.

Obtaining the default judgment on the 15th of June 2011 was the culmination of a complicated process which is replete with threats made to the defendant that default judgment would be sought and ripostes from it that an immediate application for setting aside of any default judgment would be made.

The defence was not filed in the event until the 24th of June 2011, that is some days after default judgment was granted by the Registrar, for damages to be assessed.  The notice of intention to defend was, it appears, submitted to the court for filing without a defence attached at some uncertain time in late May or early June.  I have taken the liberty of looking at Mark Joseph Flynn's affidavit filed on the 30th of June [sic] 2011 with the application.  The letter of 30th of May 2011 indicates that a copy of "our client's draft defence which is in the process of being settled", foreshadowing that that would be forwarded to the registry for filing the next day.

Assuming that happened, the registry was dissatisfied with the documentation, a requisition dated 10th of June 2011 advising that a defence must be attached to the back of a notice of intention to defend. I infer that no defence had been attached. The one now attached is a woeful pleading which appears to make no attempt whatever to comply with the rules of pleading in the Uniform Civil Procedure Rules. Interestingly, it elects trial by jury.

The copy of the defence that's filed has never been made available to the plaintiff.  She had a certain amount of difficulty in obtaining default judgment, an earlier request in that regard having been rejected on the 6th of April 2011 based, according to the order sheet, on two considerations: the first that it wasn't shown that the alleged registered office for the purposes of service had been correctly identified, the other, that there was no current affidavit of debt.

I do not understand the second aspect since the plaintiff's documents made it clear that what was sought was judgment for damages to be assessed. 

Notwithstanding I think the proper approach today is for the court to dismiss the application and with costs, it might be noted that the situation is a rather messy one in which the defendant has not been wholly inactive.  For example, there is on the file document 4 filed the 6th of May 2011, further particulars given by the plaintiff in response to a request dated the 6th of April 2011.  It's hard to avoid the feeling that the parties will be back and Mr Forbes may get an opportunity to rely on his written outline, which had been prepared in anticipation of an argument on the merits of the defendant's application this morning.

...

HIS HONOUR:  I have made the orders, haven't I, ordering the defendant's application filed 30th of June 2011 be dismissed, the defendant to pay the plaintiff's costs of and incidental to that application to be assessed if not agreed.

-----