Johnston v Dr Jasmin White's Dental Surgery Pty Ltd (In Liq)
[2013] NSWDC 127
•31 May 2013
District Court
New South Wales
Medium Neutral Citation: Johnston v Dr Jasmin White's Dental Surgery Pty Ltd (In Liq) [2013] NSWDC 127 Hearing dates: 31 May 2013 Decision date: 31 May 2013 Jurisdiction: Civil Before: P Taylor SC DCJ Decision: 1. Set aside the default judgment granted on 13 June 2012.
2. Confirm the hearing date of 30 July 2013 (estimate of 2 days plus) with that hearing to be on both liability and quantum.
3. Order that the costs of the motion and the costs thrown away by reason of the setting aside of the default judgment be costs of the proceedings.
4. Direct that the second defendant file and serve by 7 June 2013 a document called "Defendant's address for service" which is to list the second defendant's postal address, personal address and email address as given to the Court as alternative modes of service.
5. Order that evidence in chief in the matter to be given by sworn statements or affidavits.
6. Any statements or affidavits to be relied on by the plaintiff to be served by 5pm on 21 June 2013.
7. Any statements or affidavits to be relied on by the second defendant to be served by 5pm on 12 July 2013.
8. Any affidavits in reply to be served by 5pm on 22 July 2013.
9. Direct that by 5pm on 24 July 2013 the parties give notice of any deponent required for cross-examination.
10. By 5pm on 26 July 2013, the plaintiff file and serve a court bundle which includes the affidavits of both sides and any documents that the plaintiff relies upon that are not included in the affidavits.
11. Note that the first defendant is in liquidation and the plaintiff is only proceeding against the second defendant.
12. Grant liberty to the parties to re-list the matter on 2 days' notice.
13. Standard directions insofar as they are not otherwise directed above.
Catchwords: PROCEDURE - default judgment - setting aside - absence of notice - earlier decision setting aside assessment for same reasons - costs Legislation Cited: Uniform Civil Procedure Rules 2005, r 36.15, r 36.16 Cases Cited: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Category: Interlocutory applications Parties: Ruth Johnston (plaintiff)
Dr Jasmin White's Dental Surgery Pty Ltd (first defendant)
Jasmin White (second defendant)Representation: Mr M Thompson (plaintiff)
Gerard Malouf & Partners (plaintiff)
File Number(s): 2011/289837 Publication restriction: No
ex tempore Judgment
Ruth Johnston commenced proceedings on 13 September 2011 against the defendants, Jasmin White and her company, Dr Jasmin White's Dental Surgery Pty Ltd ("the Dental Surgery"), for damages for personal injuries arising from dental treatment occurring in 2009.
On 13 June 2012 Ms Johnston obtained a default judgment, the defendants not having filed a Notice of Appearance or a defence by that date. The matter was set down for an assessment of damages.
On 15 August 2012 judgment was entered by Judge Bozic of this Court following a hearing by way of assessment only in the absence of the defendants.
Ms White says that she did not know of the proceedings against her until 19 November 2012 when she received in her letterbox at Lightning Ridge some correspondence containing the court's judgment. She made an application on 16 January 2013 to set aside the order made by Judge Bozic on 15 August 2012. That matter was heard by Judge Mahony of this Court on 8 February 2013.
Judge Mahoney gave judgment on 15 August 2012. His Honour accepted the evidence of Ms White, finding: "I am satisfied that she was not served with process prior to the hearing and that she had no knowledge of this claim against her at the time the orders were made". His Honour also found that Ms White had no knowledge of the relevant hearing and concluded that the judgment had been entered irregularly. His Honour set it aside pursuant to rr 36.15 and 36.16(2b) of the Uniform Civil Procedure Rules 2005 and ordered each party to bear their own costs.
However, although the assessment determination of Judge Bozic was set aside by Judge Mahony, there remained in place the default judgment with quantum to be determined.
Ms White filed a notice of motion dated 7 May 2013 seeking to set aside the default judgment order. In the hearing before me affidavits were read and Ms White was cross-examined.
In deciding this matter, I have given particular weight to the findings of Judge Mahony. The application before him raised the issue of whether proper notice was given to Ms White, and he gave a decision. That decision has not been challenged and neither party suggests that there is fresh evidence or changed circumstances.
Accordingly, in my view, there is a strong presumption that I should proceed on the basis of the findings of Judge Mahony.
Ms Johnston submits that this is another interlocutory application and I am not bound by his Honour's earlier decision. As a general rule, interlocutory orders may be varied. But where the original interlocutory order was intended to govern the rights of the parties until final determination of the proceedings, especially where there has been a contested hearing, the court should not alter an interlocutory order unless there has been a material change in circumstances: Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44.
Judge Mahoney found that the second defendant was not served with process prior to the hearing and had no knowledge of the claim. This provides support for an order that the default judgment should also be set aside. Indeed, had the default judgment been raised before Judge Mahony it seems likely, and follows from his Honour's reasons, that the default judgment would also have been set aside.
Ms White appeared without representation before Judge Mahony as she does before me. This is presumably the reason why the setting aside of the default judgment was not raised.
Further, there seems to be no practical impediment to the orders. Ms White has not delayed after 19 November 2012 in seeking to set aside the judgments and orders made in her absence. The matter has been listed for hearing on 30 and 31 July 2013 for two days. Ms White says that she does not propose to retain any expert evidence and is content for the matter to proceed to conclusion on those dates. The question of assessment of damage will necessarily involve some investigation of Ms White's treatment of Ms Johnston, because Ms Johnston alleges both treatment without instructions and negligent treatment.
Thus, similar matters would have been ventilated at an assessment hearing as will be ventilated at the trial.
In any event, I am not satisfied that Ms White did receive notice of the claim prior to the default judgment being entered and in view of the findings made by Judge Mahony in respect of the assessment hearing, I think that the just, cheap and quick disposal of the proceedings dictates that I should set aside the default judgment and confirm the hearing date for 30 and 31 July 2013 for a hearing on both liability and quantum.
That leaves the question of costs. In the application before him, Judge Mahony ordered that each party bear their own costs of the application. He seems to have made no order in respect of the costs thrown away by reason of the setting aside of the judgment. In that event, those costs would presumably be part of the proceedings and be determined at the conclusion of the trial. Similarly, the appropriate order in respect of the costs of this application is that the costs including the costs thrown away should be costs of the proceedings.
Accordingly, the orders of this Court are:
1. Set aside the default judgment granted on 13 June 2012.
2. Confirm the hearing date of 30 July 2013 (estimate of 2 days plus) with that hearing to be on both liability and quantum.
3. Order that the costs of the motion and the costs thrown away by reason of the setting aside of the default judgment be costs of the proceedings.
4. Direct that the second defendant file and serve by 7 June 2013 a document called "Defendant's address for service" which is to list the second defendant's postal address, personal address and email address as given to the Court as alternative modes of service.
5. Order that evidence in chief in the matter to be given by sworn statements or affidavits.
6. Any statements or affidavits to be relied on by the plaintiff to be served by 5pm on 21 June 2013.
7. Any statements or affidavits to be relied on by the second defendant to be served by 5pm on 12 July 2013.
8. Any affidavits in reply to be served by 5pm on 22 July 2013.
9. Direct that by 5pm on 24 July 2013 the parties give notice of any deponent required for cross-examination.
10. By 5pm on 26 July 2013, the plaintiff file and serve a court bundle which includes the affidavits of both sides and any documents that the plaintiff relies upon that are not included in the affidavits.
11. Note that the first defendant is in liquidation and the plaintiff is only proceeding against the second defendant.
12. Grant liberty to the parties to re-list the matter on 2 days' notice.
13. Standard directions insofar as they are not otherwise directed above.
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Decision last updated: 06 August 2013
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