Cicirello v Carter

Case [2023] WADC 130

JURISDICTION     :   DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION:   PERTH

CITATION:   CICIRELLO -v- CARTER [2023] WADC 130

CORAM:   PRINCIPAL REGISTRAR MCGIVERN

HEARD:   2 NOVEMBER 2023

DELIVERED          :   Ex tempore

FILE NO/S:   CIV 4897 of 2022

BETWEEN:   VANESSA AND MICHEAL CICIRELLO

Plaintiff

AND

BROCK CARTER

Defendant


Catchwords:

Practice and procedure - Judgment entered in default of appearance - Irregularity - Wilful failure to engage in the process - Turns on own facts

Legislation:

Civil Judgments Enforcement Act 2004 (WA), pt 4 div 2
District Court Rules 2005 (WA), r 6, r 20
Rules of the Supreme Court 1971 (WA), O 2 r 1, O 2 r 2, O 5 r 11, O 9 r 1, O 12 r 1, O 12 r 2, O 12 r 5, O 13 r 1, O 13 r 2, O 13 r 12, O 13 r 14

Result:

Default judgment stands

Representation:

Counsel:

Plaintiff : Mr T Lethbridge
Defendant : In person

Solicitors:

Plaintiff : Croftbridge
Defendant : Not applicable

Case(s) referred to in decision(s):

ACN 076 676 438 Pty Ltd (in liq) v A-Comms Teledata Pty Ltd [2000] WASC 214

Arnold v Forsythe [2012] NSWCA 18

Cheney v Moore [2020] WASC 227

Collie v Merlaw Nominees Pty Ltd [2003] VSC 424

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Hall v Hall [2007] WASC 198

Jones v Harvey Industries Group Pty Ltd [2019] WADC 14

Metroinvest Ansalt v Commercial Union Assurance Co Ltd [1985] 1 WLR 513

Moleirinho v Talbot & Olivier Lawyers Pty Ltd [2014] WASCA 65

Murcia & Associates (a firm) v Grey [2001] WASCA 240; (2001) 25 WAR 209

Polodna v Mattiaccio [2019] WASCA 21

RT Company Pty Ltd v Minister of State for the Interior [1957] HCA 39; (1957) 98 CLR 168

Scott v Baring [2019] WASC 278

Starrs v Retravision (WA) Ltd [2012] WASCA 67

The Pilbara Infrastructure Pty Ltd v BGC Contracting Pty Ltd [2007] WASCA 257

Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382

PRINCIPAL REGISTRAR MCGIVERN:

[These reasons were delivered orally on 2 November 2023. They have been edited to correct matters of grammar and infelicity of expression, and to include footnotes.]

Introduction

  1. On 10 January 2023, judgment in default of an appearance was entered against the defendant.[1]  It later became apparent that the defendant had attempted to enter an appearance by emailing it to the court, but that was, unfortunately, not discovered until some time after default judgment had been entered.[2]

    [1] For convenience, in these reasons I refer to the parties respectively as the 'plaintiffs' (rather than 'judgment creditors') and 'defendant' (rather than 'judgment debtor').

    [2] As to which, see [8], [18] of these reasons.

  2. The court, of its own motion, brought the matter on for a hearing to determine whether the default judgment was irregularly entered and, if so, what orders should be made.

  3. For the reasons that follow, although I am satisfied that the default judgment was irregularly entered, I am not satisfied…

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Details
AGLC
Cicirello v Carter [2023] WADC 130
Case
[2023] WADC 130
Decision Date

CaseChat Overview and Summary

Cicirello v Carter involves a dispute over a default judgment entered against the defendant, Carter, by the court in the absence of his appearance. The plaintiff, Cicirello, sought damages and costs, which were granted on 10 January 2022. The court found that neither the plaintiffs nor the court were aware of the defendant's attempt to enter an appearance. The plaintiffs' lack of knowledge was affirmed by the affidavit of Timothy Lethbridge. The Default Judgment was served on the defendant on 19 January 2023, and a means inquiry was scheduled for 16 March 2023, with a summons served on the defendant on 3 February 2023. The defendant did not attend the means inquiry hearing, and the plaintiffs applied for an arrest warrant, which was adjourned. The defendant failed to attend the subsequent means inquiry hearing on 15 June 2023.

The court was required to determine whether the irregularity in the proceedings justified setting aside the default judgment. Key issues included the defendant's failure to appear and engage in the process, and whether the plaintiffs had acted in bad faith. The court also had to consider the defendant's attempt to file an appearance, albeit unsuccessfully, and whether this warranted relief from the judgment. The court needed to assess whether the defendant's actions constituted a wilful failure to engage in the process and whether the irregularity substantially affected the fairness of the proceedings.

The court concluded that the defendant's actions did not justify setting aside the default judgment. The defendant had failed to engage in the process and did not attend the hearings, despite opportunities to do so. The court found no evidence of bad faith on the part of the plaintiffs. The irregularity did not substantially affect the fairness of the proceedings, as the defendant's failure to engage was the primary issue. The court also noted that the defendant's attempt to file an appearance, albeit unsuccessfully, did not warrant relief from the judgment.

The court ordered that the application to set aside the default judgment be dismissed. The defendant was directed to pay the damages sum plus costs to the plaintiffs. The court emphasised that the defendant's wilful failure to engage in the process and his non-attendance at the hearings were significant factors in reaching its decision. The court did not find sufficient grounds to grant the relief sought by the defendant.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the absence of the court or the plaintiffs being aware that the defendant had sought to enter an appearance,[7] default judgment for the Damages Sum plus costs was entered against the defendant on 10 January 2022 (Default Judgment).[7] I accept the evidence in relation to the plaintiffs' lack of knowledge contained in the affidavit of Timothy Lethbridge made 18 August 2023. The Default Judgment was personally served on the defendant on 19 January 2023.[8][8] Affidavit of service of Steven John Walker sworn 24 January 2023. Pursuant to an application made on 23 January 2023 by the plaintiffs (as judgment creditors), on 31 January 2023 a means inquiry was listed to be heard on 16 March 2023, and a summons was issued for the defendant to attend and give evidence at that hearing.[9] The summons was personally served on the defendant on 3 February 2023.[10][9] Pursuant to Civil Judgments Enforcement Act 2004 (WA) pt 4 div 2 (CJEA).[10] Affidavit of service of Steven John Walker sworn 13 February 2023. The defendant did not attend the means inquiry hearing on 16 March 2023.[11] [11] I accept the evidence of the plaintiffs' lawyer that the defendant did not advise them of any inability to attend a hearing on that date: affidavit of Timothy Lethbridge made 23 March 2023 (First TL Affidavit). On 23 March 2023, the plaintiffs filed an application for orders that included leave to issue an arrest warrant to the defendant.[12] That application was listed to be heard before a judge on 11 April 2023, and the Form 7 notice was personally served on the defendant on 8 April 2023.[13][12] Pursuant to CJEA s 29(3).[13] Affidavit of service of Steven John Walker sworn 11 April 2023. The application was heard by his Honour Judge Troy on 11 April 2023, and the defendant attended that hearing. In the event, the means inquiry was relisted for hearing on 6 June 2023, and the application for the issue of a warrant was adjourned. The defendant attended the hearing on 6 June 2023, and the application for the issue of a warrant was vacated. The means inquiry itself, however, was adjourned by consent to 15 June 2023 (apparently to allow the defendant to gather additional financial information).[14][14] Affidavit of Timothy Lethbridge made 18 August 2023 (Second TL Affidavit). The defendant did not attend the means inquiry hearing on 15 June 2023. The defendant did not, at the hearings he attended on 11 April 2023 or 6 June 2023, make mention of having filed, or having attempted to file, an appearance. However, on or about 9 August 2023, the defendant contacted the court to enquire about, and the court located, the defendant's email referred to in [8] above. On 11 August 2023, I wrote to the parties:(a)in terms of [1] - [2] above;(b)advising that the matter was provisionally listed for a hearing in chambers on 21 August 2023; and(c)requiring that, by 15 August 2023, each party provide any unavailable dates for the forthcoming month and notify the court if they were unable to make the hearing on 21 August 2023.

Ratio Decidendi

Legal Principle Established

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