Liristis v Insurx Pty Ltd

[2021] NSWLC 12

Local Court

New South Wales

Medium Neutral Citation:

Liristis v Insurx Pty Ltd [2021] NSWLC 12

Hearing dates:

01 October 2021 (In chambers)

Decision date:

01 October 2021

Jurisdiction:

Civil

Before:

Tsavdaridis LCM

Decision:

(1) The Plaintiff’s Notice of Motion for Default Judgment is dismissed.

(2) The proceedings are adjourned to 9.30 a.m. on 14 October 2021 for directions.

(3) The parties or their legal representatives are to appear in Court on the next occasion.

(4) Registrar to notify all parties and their representatives of these orders.

Catchwords:

CIVIL — notice of motion for default judgment for unliquidated statement of claim — interests of justice best served by hearing on the merits — justiciable issues — arguable defence — registrar’s referral of notice of motion to magistrate in chambers

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 13, 56(1),56(2), 57

Uniform Civil Procedure Rules 2005 (NSW), rr.16.7, 49.16

Corporations Act 2001 (Cth), ss 9, 58AA, 109X, 142, 440D, 601CT

Service and Execution of Process Act 1992 (Cth), s 16

Competition and Consumer Act 2010 (Cth), Schedule 2 (Australian Consumer Law), s 224, Part 2-2 (Unconscionable conduct) or Part 3-1 (Unfair practices)

Service and Execution of Process Regulations 2018 (Cth), cl. 6 and Schedule 1

Delegated Powers of Registrars - Direction from Chief Magistrate Judge Henson (17 August 2016, updated 17 March 2020)

Category:

Procedural rulings

Parties:

Tony Liristis (Plaintiff)
Insurx Pty Ltd (First Defendant)
RAC Insurance Pty Limited (Second Defendant)
UbiCar Insurance Pty Limited (Third Defendant)

Representation:

Tony Liristis (Plaintiff) (Self-represented)

File Number(s):

2021/223337

Publication restriction:

Nil

JUDGMENT

1. This is a decision with respect to the Plaintiff’s Notice of Motion for Default Judgment for Unliquidated Damages filed on or about 10 September 2021.

2. The Notice of Motion is sought to be dealt with in the absence of the parties. The practice is that applications of this kind are dealt with (usually administratively, in chambers) by a Registrar: s 13 Civil Procedure Act2005 (NSW); Delegated Powers of Registrars - Direction from Chief Magistrate Judge Henson (17 August 2016, updated 17 March 2020).

3. On occasion, a Registrar will refer a matter to a Magistrate in chambers as a means of appropriately triaging a case, where an issue has arisen which might best be dealt with by a judicial officer. This is consistent with the objects of case management outlined in s 57 of the Civil Procedure Act 2005, with a view to attaining a just determination of the proceedings, the efficient disposal of the business of the court, and as part of the efficient use of available judicial and administrative resources. This is one such occasion.

4. Pursuant to r.49.16 of the Uniform Civil Procedure Rules 2005 (NSW), the Plaintiff’s Notice of Motion for Default Judgment was referred to me by the Registrar, for consideration in chambers.

5. The Plaintiff’s Unliquidated Statement of Claim was filed on or about 5 August 2021.

6. The Plaintiff’s supporting Affidavit of Service, apparently affirmed by Tony Liristis on 7 September 2021 (at the head of the document) or 10 September 2021 (in the body of the document) deposes, inter alia, that the Unliquidated Statement of Claim was served on the First Defendant by email on 5 August 2021. The Plaintiff further deposes that the Unliquidated Statement of Claim was served on the First Defendant in person, by leaving it with a lady at the front door, at its “head office” at [address redacted].

7. The Plaintiff’s supporting Affidavit of Service, apparently affirmed by Tony Liristis on 7 September 2021 (at the head of the document) or 10 September 2021 (in the body of the document) deposes that the Unliquidated Statement of Claim was served on the Second Defendant by email on 5 August 2021, with authority to receive by email communicated by a member of its staff to the Plaintiff in a telephone call.

8. The Plaintiff’s supporting Affidavit of Service, apparently affirmed by Tony Liristis on 7 September 2021 (at the head of the document) or 10 September 2021 (in the body of the document) deposes that the Unliquidated Statement of Claim was served on the Third Defendant by email on 5 August 2021, with authority to receive by email communicated by a member of its staff to the Plaintiff in a telephone call.

9. An Appearance was filed by the solicitor for the First Defendant on 7 September 2021.

10. An Appearance was filed by an authorised officer for the Second Defendant on 8 September 2021.

11. No Appearance was filed by the Third Defendant. The Third Defendant is under external administration and, by operation of s 440D of the Corporations Act2001 (Cth), the Plaintiff cannot (and, in fairness, nor does he seek to) proceed with his claim except with the administrator’s written consent or with the leave of, relevantly, the Federal Court of Australia or the Supreme Court of a State or Territory: ss 9 and 58AA Corporations Act2001 (Cth).

12. The First Defendant’s registered office (as opposed to “head office”), within the meaning ascribed in ss 9, 142 and 601CT of the Corporations Act2001 (Cth), is situated in Matraville, New South Wales.

13. The Second Defendant’s registered office, within the meaning ascribed in ss 9, 142 and 601CT of the Corporations Act2001 (Cth), is situated in West Perth, Western Australia.

14. In the ordinary course, the service of initiating process on a corporation is to be effected by leaving it at, or posting it to, the company’s registered office (recorded on the Australian Securities and Investments Commission register) or any of the other means stipulated in s 109X of the Corporations Act2001 (Cth), none of which make reference to service by email or other head or branch offices. In any event, the First and Second Defendants, having filed Appearances, would have well and truly become aware of the proceedings.

15. It is noted that so far as the Second Defendant is concerned, there is no evidence that the initiating process annexed the necessary Notice to Defendant (Form 1), a prescribed document required by virtue of s 16 of the Service and Execution of Process Act 1992 (Cth) and cl.6 and Schedule 1 of the Service and Execution of Process Regulations2018 (Cth).

16. The Plaintiff’s Notice of Motion for Default Judgment for Unliquidated Damages, pursuant to r.16.7 of the Uniform Civil Procedure Rules 2005, as against the First and Second Defendants seeks: -

(a) Damages, as referred to in the Statement of Claim, to be assessed.

(b) Costs.

17. Although the Plaintiff’s Unliquidated Statement of Claim appears to have been drafted without the assistance of a legally qualified solicitor or counsel and contains a number of objectionable pleadings, the Plaintiff, so far as I can distil, pleads the following: -

(a) An action for damages in a contract of motor vehicle insurance.

(b) Misleading, deceptive and unconscionable conduct, within the meaning ascribed in the Australian Consumer Law set out in Schedule 2 of the Competition and Consumer Act2010 (Cth).

(c) Pecuniary penalties, presumably pursuant to s 224 of the Australian Consumer Law, for an alleged contravention by the First and Second Defendants of Part 2-2 (Unconscionable conduct) and/or Part 3-1 (Unfair practices) of the Australian Consumer Law.

18. The Plaintiff’s Unliquidated Statement of Claim appears to be principally founded upon an action in a contract of motor vehicle insurance, where the Plaintiff asserts that the Third Defendant (now in external administration) was the insurer, the Second Defendant was the underwriter and the First Defendant, as far as I could understand, was the claims manager on behalf of the First and/or Second Defendant(s).

19. Succinctly put, the Plaintiff asserts that a motor vehicle accident took place on 6 July 2021, for which he was insured, but was not at fault, and was initially advised that his vehicle was a total loss (write-off). This determination, however, was said to have become superseded by a report prepared by the First Defendant which concluded that the Plaintiff’s vehicle was, in fact, repairable.

20. The Plaintiff has, throughout the course of the past few weeks, forwarded some 17 emails to the registry, with replies to some by registry staff, spanning over 100 pages. The emails, in the main, appear to take issue with the Registrar’s administrative functions and capabilities and, on some occasions, asserting that the Registrar and/or Deputy Registrar have engaged in “perverting the course of justice” and a “serious indictable offence”. The emails describe the communications by the Registrar and/or Deputy Registrar as being the “rudest, most unprofessional and most insensitive” emails ever received from a “public servant who is paid by the people of NSW”, matters with which the Plaintiff asserts the “Chief Justice would be disgusted.” The emails degenerate into entirely inappropriate matters in which the Plaintiff directs vitriol towards the Deputy Registrar informing her that he is “proud to be a wog”, that she is “surrounded by wogs” and that “Aristotle (another wog…) was the first to articulate … the rule of law.” The emails conclude with a suggestion that the Deputy Registrar should “build a bridge and get over it … or contact Elon Musk and catch a flight with Space X to Mars.” The comments are entirely offensive and deserving of opprobrium.

21. During the course of preparing these written reasons for decision, the First Defendant filed a Defence on 30 September 2021. At first glance, there appears to be an arguable defence.

22. With or without the said Defence, however, there are, in my view, a number of identifiable issues which would warrant a determination by a judicial officer based on the evidence to be presented by each party.

23. Little is to be achieved, other than additional undue cost and delay, by entering default judgment in circumstances where Appearances have been filed by both the First and Second Defendants, which will likely lead to an application to set aside default judgment, in a dispute involving issues as to liability and quantum arising from a contract of motor vehicle insurance.

24. Bearing in mind the overriding purpose in s 56(1) and (2) of the Civil Procedure Act2005 to facilitate the just, quick and cheap resolution of the real issues in the proceedings and the mandate that the Court must seek to give effect to the overriding purpose when exercising any power given to it by the Civil Procedure Act2005 or by rules of Court, I am firmly of the view that the interests of justice are best served by the making of directions for the filing and service of such pleadings and evidence as would bring to the fore the real justiciable issues and, in due course, by a hearing on the merits.

25. Accordingly, I make the following orders and notations: -

1. The Plaintiff’s Notice of Motion for Default Judgment is dismissed.

2. The proceedings are adjourned to 9.30 a.m. on 14 October 2021 for directions.

3. The parties or their legal representatives are to appear in Court on the next occasion.

4. Registrar to notify all parties and their representatives of these orders.

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Decision last updated: 16 December 2022