Goldberg v Morrow
[2003] VSCA 127
•22 August 2003
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No. 5230 of 2003
| DAVID GOLDBERG | |
| Applicant | |
| v. | |
| DAVID MORROW | Respondent |
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APPLICATION ON SUMMONS
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JUDGES: | ORMISTON and BATT, JJ.A. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 22 August 2003 | |
DATE OF JUDGMENT: | 22 August 2003 | |
MEDIUM NEUTRAL CITATION: | [2003] VSCA 127 | |
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COURTS - Practice and Procedure - Failure of defendant to deliver defence within prescribed time - Application for judgment in default of defence - Before hearing defence and application to strike out Statement of Claim served - Whether master and judge should first hear pleading summons or default application - Relevant considerations.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In Person | |
| For the Respondent | Mr D. Bracken | Victorian Government Solicitor |
ORMISTON, J.A.:
This is an application for leave to appeal from an order of Gillard, J. made 24 July 2003 whereby his Honour dismissed an appeal from Master Wheeler and struck out both the applicant's original statement of claim and an amended statement of claim, giving the applicant leave to file and serve a further amended statement of claim by 7 August this year. It should be carefully noted, however, that the grounds of the proposed appeal, though extravagantly stated, are confined to substantially one aspect of the hearing before the learned judge. Although the whole order is appealed from, the first ground of the proposed notice of appeal to this Court alleges that the applicant was denied natural justice because "there was no evidence before the Court which could lead to such finding" against the applicant, an allegation irrelevant to a pleading summons. Secondly, it is alleged that the judge "prejudiced the [applicant's] Rights and expectations" by refusing the applicant's request to discharge himself, that is for the judge to discharge himself, on the ground of "his bias against the [applicant]" but regrettably no basis in fact for this allegation is set out in any supporting affidavit, so that one must therefore assume that the alleged bias arose because of the judge's unwillingness to deal with the matters before him in the way the applicant desired. Thirdly, it is asserted:
"how any reasonable judge could come to the conclusion that the [applicant] was not entitled to enter the final judgment for the damages in default in accordance with the law on the evidence before him." (sic
Fourthly, it is alleged that the applicant was denied natural justice because the judge refused "to listen to the application brought by the [applicant] Against the defendant". Fifthly, a further unparticularised assertion is made:
"how any reasonable judge could allow the hearing to continue and be heard and determined not in accordance with the law."
One should say at once that I find it hard to see how these assertions can fairly sit with the fair and careful way that the judge dealt with the application before him in a judgment extending over four pages and by which the judge refused to strike out the whole of the statement of claim and accepted that one paragraph and two claims at least of the pleading sufficiently disclosed either one or two causes of action which the applicant should be allowed to pursue. His Honour very tolerantly pointed out a number of errors of form and structure in the rest of the statement of claim and gave the applicant yet another opportunity to put his house in order by setting out his tenable claims in straightforward terms. The judge did hold that some claims which were unparticularised and which alleged harassment, breach of human rights and the like were unsustainable in law, but there can be little reason to doubt the correctness of his Honour's observations on those subjects.
However, as I perceived the appeal, the applicant's complaint is not about the pleadings or the manner in which the judge (or master) dealt with them, except to a limited extent by reference to potential delay, but rather that both judge and master had refused to deal with an application for judgment in default of defence which he says was both before the master and the judge on the original hearing and on the appeal, which application, of course, had to be heard afresh by the judge. Reading the notice of appeal and the affidavits relied upon, I would infer that the applicant's complaint is that the application was not decided and his complaints of want of natural justice and the like are directed solely to the failure to determine his application for a default judgment.
Perhaps both the respondent and the judge, to an extent, concentrated on what they saw as the principal issue, namely whether the two statements of claim should be struck out because they failed to disclose a cause of action, whereas the applicant at all times has perceived his primary right as that of obtaining a judgment by default. It may be that it was not sufficiently explained, though the judge clearly referred to it in his reasons, why it was unnecessary and inappropriate to decide that application for a default judgment when both a defence had been filed by the time of the hearing and the defendant clearly wished to challenge the form and basis of the claims upon which the applicant wished to obtain judgment. In short, as a matter of practice, it is ordinarily seen in those circumstances to be a waste of time to permit the default judgment to be entered and then, virtually immediately, to have it set aside again on the ground that the defendant should be permitted to defend the action, whether on the facts or on the law or both. I shall return to this in a moment.
The facts may be briefly mentioned. The applicant issued a writ against the respondent on 3 April 2003 claiming damages for false arrest and wrongful imprisonment (and for certain rather more obscure claims), and caused it to be served on the defendant at his place of work on 9 April 2003. Pursuant to the Rules, that effectively gave the respondent until 19 April 2003 in which to enter an appearance. The respondent did not enter an appearance within time but did enter a conditional appearance on 29 April 2003, which may be taken to be an appearance for all practical purposes on that date. The consequence of that, however, was that by reason of Order 8.07 of the Rules of Court, the respondent was obliged to serve his defence as if he had filed an appearance on the last day for doing so under the Rules. Consequently, as the applicant has pointed out, the 30 day time limit for delivery of defence expired on 9 May 2003. No defence was delivered, however, by that date, although one was in fact delivered on 29 May 2003. The reason for the respondent's filing a conditional appearance was that he wished to challenge the statement of claim, although the form of his defence was inappropriate to that purpose, and then to apply to have the statement of claim struck out on the ground that it did not disclose a cause of action. A summons seeking that relief was issued on 2 June 2003.
In the meantime, however, the applicant had filed an affidavit asserting that the defendant had failed to serve his defence within the time limited under the Rules and asking "that a default judgment for damages shall be entered". The applicant relied on Order 21.02 of the Rules and otherwise sufficiently deposed to the facts entitling him to enter default judgment, including by way of exhibit an affidavit of service of the writ. Under that rule a plaintiff "may enter or apply for judgment" in accordance with the Order. Unfortunately, as the applicant made only claims sounding in damages, what he should have sought was that curious hybrid form of judgment known as an "interlocutory judgment...for damages to be assessed", the form for which is set out as Form 60J in the appendix to the Rules. The top half of that form of judgment permits immediate entry or ordering of a judgment in default for damages to be assessed, but the second half provides for the inclusion at a later date of what is called the "final judgment" for a sum which has by then been assessed in accordance with the Rules. It would seem that the applicant did not file or seek to enter or seek to provide any draft judgment in accordance with form of 60J or in any other form. It seems that it was treated, that is his application for default judgment, as an application for such a judgment rather than an attempt to enter the ministerial form of judgment at the Prothonotary's office for which the partly completed pro forma must, by way of convention, be supplied. The judge in his reasons said that the Deputy Prothonotary refused, justifiably, to enter judgment and had forwarded it to a master, but it would appear that the applicant himself sought to bring his application before a master in that he filed a notice to produce on 23 May asking that the file be produced to a master in Court 2 on 26 May of this year. On that day, for various reasons which need not be examined, the master adjourned the matter to 23 June and reserved the costs.
By the time the matter came on again the defendant had both filed his defence (on 29 May) and taken out a summons on 2 June to strike out the statement of claim. Both that summons and the applicant's application for default judgment were before the master on 23 June 2003, although the applicant did not file a summons making that application in accordance with Order 46. According to the applicant, the master refused to hear his application but heard only the defendant's summons. There was no answering affidavit on behalf of the defendant, nor was there any transcript, so I must accept that the hearing proceeded in that way. Certainly the master's order of that date referred only to the later summons by the respondent and did not dispose of the applicant's application for a default judgment. Doubtless the master did not deal with it for the reasons I have already suggested and to which I shall return, namely, that it was pointless to do so when there was a defendant ready and anxious to defend the proceeding. Perhaps this was not explained to the applicant but it is now of no consequence, for, after the master ordered the statement of claim to be struck out, with leave to deliver a new statement of claim by 14 July, the applicant, on 25 June, filed a notice of appeal to the judge in the Practice Court which explicitly stated that the appellant appealed against the whole of the order of the master. By its terms the applicant's notice thereafter concentrated on the failure to hear his application for a default judgment. The judge, by the rules, was required to hear afresh all the matters before the master and so the present application must effectively comprehend any error in or any doubt as to the correctness of the judge's decision inasmuch as he heard both applications.
Again, the Court has no transcript of the hearing before Gillard, J. on 24 July 2003 and has only the narrative in the judge's reasons for judgment and the tendentious affidavit, if I may so describe it, of the applicant. The latter complains of a refusal by the judge to disqualify himself for bias but gives no description of the surrounding circumstances. Accordingly, I ignore it - one must have proper evidence before so acting on so serious an allegation. I ignore also the other extravagant descriptions of the hearing which likewise are not supported by evidence.
The applicant's primary complaint in his affidavit and to this Court, and to the judge, was, again, that his application for default judgment was ignored and that the judge "instead", as he put it, dealt with the defects in his statement of claim. As to this, the judge likewise refused to hold, as the respondent had sought, that the statement of claim, both in its original and amended form, did not disclose a cause of action, but the judge said only that each was embarrassing in form, so ordering that they be struck out, with a further right given to the applicant to serve and file another statement of claim by 7 August. The judge properly explained that in form the only statement of claim before him on the appeal was the original statement of claim which he dealt with fairly and with considerable care, in terms which were not directly criticised, so that it is unnecessary to say more than that his reasons for striking out the statement of claim seem entirely correct. However, he explained that the amended statement of claim, though still containing a kernel of claims which could properly be entertained by the Court, was worse and more embarrassing in form than the original statement of claim. As the amended statement of claim could not go forward to trial, he struck out the latter document also pursuant to Order 23.02(c), so as to enable the applicant to file yet another further statement of claim which could be hoped this time to be in proper form. His Honour sought to give the applicant some advice as to how that might be achieved, but his object was to allow the action to proceed, for the applicant certainly would otherwise have faced the delay of yet other pleading summons if the judge had not dealt with the first amended statement of claim. Nevertheless, his Honour's actions were characterised by the applicant as "only designed to delay my action as long as possible". That comment reflects the lack of accuracy of much of the affidavit, which by reason of its intemperate language might otherwise have been struck from the file
The pleading issue, however, is not what the applicant principally complains about. He reiterates, time and time again, his criticisms of the failure to give him the default judgment he sought. But he is quite wrong in saying that the judge ignored his application. The judge's reasons, especially on p.1, make clear why he did not decide that application, and the applicant was certainly not denied natural justice as he claims. The judge set out what he believed had happened to the applicant's application, saying that, "not surprisingly, the Master took the practical course, and only course available to him, and that was to consider, first of all, the summons brought by the [respondent]". That is also what the judge did, and properly so, for he said, on the following page, that his function was "to consider the two applications before" him by reason of the notice of appeal. Having reached, correctly, the view that the statement of claim was not in proper form and ought to be struck out, it followed that there could be no proper basis for entering a default judgment based on a defective statement of claim. Damages would still have to be assessed if judgment had been given and that could not properly be done on improperly pleaded claims. By implication, therefore, his Honour declined to deal with the default application for that very good reason. If there be any criticism, it can only be that his Honour did not later spell out the consequences for the applicant's own application and did not make a formal order to that effect, but that could have been the only proper outcome, that is the dismissal of the applicant's application, and the applicant has no basis for complaint in law, nor any arguable grounds for obtaining leave to appeal
What the learned judge was adverting to, which perhaps he ought to have spelt out for the applicant in the circumstances, is the practice whereby the Court does not ordinarily enter a default judgment where it is pointless do so because a defendant is seeking genuinely on a tenable basis to defend the proceeding. In other words, whatever the technical failure of the defendant may be, a default judgment serves no purpose and the failure can properly be taken into account only on other questions of discretion, such as the question of costs. It is this well known kind of consideration which formed the basis for the judge's (and the master's) approach, though not expressly stated.
It is so well known a principle of practice in this area (that is in the area of default judgments), that it would serve no purpose to examine all the authorities which have expressed it. They are usefully set out in the practice books and, in particular, to the annotation to Orders 22.01 and 22.02 of the Rules in Williams Supreme Court Practice. They include cases such as the decision of the Court of Appeal in Redditch Building Society v. Roberts[1], where it is said that a default judgment should never be ordered "where the defendant is before the Court...and is anxious to put himself in a position to defend" the proceedings, whatever the technical position might be. That authority related to judgments in default of appearance, but, not only is it consistent with other authorities relating to rules such as Order 22.01, but what was there said is likewise the principle behind the similar approach to judgments in default of defence: See by way of example:
Gill v. Woodfin[2]; Gibbings v. Stirling[3] and in particular Wiedenhofer v. The Commonwealth[4], a decision of Gibbs, J., of the High Court, as he then was. Of course, it must be seen that the defendant has a genuine answer to the plaintiff's claim and how that is shown will depend on all the circumstances. Where, as here, objection is made to the form and substance of the statement of claim, then that ordinarily will be sufficient, if it can be seen that the objection is reasonably arguable. I should explain further, if it be necessary, that one reason for the Court's approach is that it would be a waste of time and money to allow a default judgment and then to require it to be set aside, where the nature of the defence or objection to the claim is obvious. Ordinarily, it is not difficult to show sufficient facts or legal argument, if there is a genuine defence, to have a default judgment set aside. Not only would the process result in further expenditure of money and time, but it would allow a judgment on the records of the Court which should not be maintained, a matter which may reflect on the reputation or solvency of a particular defendant.
[1][1940] Ch. 415.
[2](1884) 25 Ch.D. 707.
[3](1884) 26 Ch.D. 66.
[4](1970) 122 C.L.R. 172.
There is, for the reasons I have stated, and notwithstanding what has been put to the Court by the applicant, no basis for the applicant's claim for leave to appeal and the application should therefore be refused.
BATT, J.A.:
I agree.
ORMISTON, J.A.:
The order of the Court therefore is that the application be refused.
MR BRACKEN:
I make application for costs, Your Honours.
ORMISTON, J.A.:
I will not trouble you, Mr Goldberg.
Having regard to the way the matter has been argued both here and below, we do not propose to make any order with respect to the costs of this application.
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