James v James (No. 1)

[2020] NSWDC 795

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:	James v James (No. 1) [2020] NSWDC 795
Hearing dates:	12-13, 16 November 2020
Date of orders:	12 November
Decision date:	12 November 2020
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Application to set aside refused.
Catchwords:	Practice and procedure – Default Judgment – Application to set aside.
Category:	Procedural and other rulings
Parties:	Plaintiff - Shannon James Defendant - Shaun James
Representation:	Plaintiff: W. Priestley (Counsel) J. Hill (Randall lawyers) Defendant: In person – unrepresented
File Number(s):	2020/00184759
Publication restriction:	Nil.

Judgment

1. HIS HONOUR: This is an application to set aside a default judgment entered by the Registrar on 21 October 2020. The statement of claim complies with the rules of court. It carried a notice to the defendant. The notice to the defendant says this:

“If you do not file a defence within 28 days of being served with this statement of claim:

You will be in default in these proceedings.

The Court may enter judgment against you without any further notice to you.

The judgment may be for the relief claimed in the statement of claim and for the plaintiff’s costs of bringing these proceedings. The Court may provide third parties with details of any default judgment entered against you.”

The statement of claim then gave directions to the defendant as to how to respond. It initially told the defendant to obtain further information about what to do by consulting a legal practitioner, by going to LawAccess NSW, whose telephone number and email address were provided, and also that limited procedural information could be obtained from the Court registry. The document continued:

“You can respond in one of the following ways:

1. If you intend to dispute the claim or part of the claim, by filing a defence and/or making a cross-claim.”

The further two paragraphs are irrelevant because this was not a money claim in which the defendant owed money or owed part of the money claimed.

2. The defendant initially retained Messrs Trenches McKenzie Cox, Solicitors, to act for him. On 8 July 202 Mr Stephen Pinchin of that firm filed a notice of appearance. The statement of claim had been personally served upon the defendant on 24 June 2020. He was required to file a defence within 28 days of the service of the statement of claim upon him. The defence ought to have been filed by 22 July 2020.

3. On 27 July 2020 the plaintiff’s solicitor sent correspondence to Messrs Trenches McKenzie Cox in relation to when they anticipated a defence would be filed and served. On 4 August 2020 the plaintiff’s solicitor received a telephone call from Mr Pinchin notifying her that he intended to file a Notice of Ceasing to Act. A Notice of Ceasing to Act was in fact filed on 12 August 2020.

4. In the meantime the matter was listed for a pre-trial conference before the Registrar on 5 August 2020. At that conference the plaintiff’s solicitor sought and obtained from the Registrar an order that the defendant file and serve his defence by 16 September 2020. The Court’s records indicate that on 5 August 2020 the defendant was present in person at the pre-trial conference. If the defendant did not know what filing a defence meant he could have asked the Registrar. He did not indicate, according to the records made by the Court, any problem in understanding what the order was.

5. On 2 September, 15 September, 17 September, 18 September, 22 October and 3 November 2020, the plaintiff’s solicitor advised the defendant to obtain legal advice. Importantly, however, on 17 September the plaintiff’s solicitor sent by email to the defendant a letter which contains the following advice:

“On 5 August 2020, this matter was listed for pre-trial conference. On this occasion, we sought an order that you file and serve a defence by 16 September 2020, effectively providing you with an extension to file a defence. This order was subsequently made by the registrar.

On 16 September 2020, our firm was not served with a defence and we have confirmed via the Online Registry that you have not filed a defence with the Court to date.

We put you on notice that if you do not file and serve a defence by 4pm on Monday, 21 September 2020, we are instructed to file a default judgment against you on Tuesday, 22 September 2020. This means that a judgment will be automatically entered against you and the matter will be listed before the Court for a Judge to make an assessment as to the amount of damages you will be required to pay our client together with our client’s legal costs.

We strongly recommend that you obtain urgent legal advice in relation to this correspondence specifically and the matter generally.

“Should you wish to seek further clarification of any matter raised in this correspondence or you have any other questions, please do not hesitate to contact the writer.”

6. That document appears to have been sent by email at 4.04pm on 17 September 2020. At 4.05pm on the same day the defendant sent this email to the plaintiff’s solicitor addressing her by her first name. Correcting the misspelling the document is this:

“To remind yourself and your peers[.] That the final settlement power was controlled by Randall Legal [the plaintiff’s solicitor]. I recall signing a release form for Randall Legal to put the money into my account, not Paul Denmead[.] He had no hand in the final payments[.] Randall Legal was in full control exactly like your client was with our company finances …”

A further email was sent at 4.15pm and commences thus:

“I have given you my defence. I dispute the entire tort of assault. Now you have to prove it actually happened in the first place. As you said, civil is totally separate from the previous cases [criminal and family law cases]. It is your responsibility to prove I did it.”

7. On Friday 18 September at 11.26am the defendant sent a further email to the plaintiff’s solicitor which commences thus:

“Our defence will be that your client fabricated the assault in February 2018 to cover up the facts of her spending money in 2016, 2017, early 2018 …”

It goes on to make a number of allegations about the evidence which the defendant thought had been concocted. At 2.08pm on 18 September the plaintiff’s solicitor replied to that email. The email contains this substance:

“This is not the proper form a defence should take and it has not been filed with the Court. I refer you to the orders made on 5 August 2020.

I strongly recommend that you obtain legal advice in relation to this matter.

I refer to my correspondence emailed to you yesterday and confirm that we will file a default judgment against you if you do not file and serve a defence by 4pm on Monday, 21 September 2020.”

8. That email prompted this response on Friday, 18 September 2020 at 3.07pm:

“Your client is taking me to court so you do the work required to get us there. I’m very happy to go to court or not. Your responsibility as you started this civil process against me … I will not be answering any more emails until Wednesday next week for my own mental conditioning program because of my long-suffering PTSD I have from an incident 29 years ago.”

The next email correspondence before me, passing between the plaintiff’s solicitor and the defendant, bears date 25 September 2020 at 2.39pm, that is, after the default judgment had been entered by the Registrar. The correspondence sent by the plaintiff’s solicitor to the defendant made it abundantly clear that he was required to file a defence with the Registrar, that is, file it in the Court’s Registry. He did not do that and defiantly told the plaintiff’s solicitor that it was her responsibility to do so. In those circumstances there is no merit to the application to set aside the default judgment and it is refused.

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Amendments

12 January 2021 - Error in coversheet amended.

Decision last updated: 12 January 2021