Melchiorre v Leo

[2012] SADC 96

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil: Application)

MELCHIORRE  v LEO & ORS

[2012] SADC 96

Judgment of His Honour Judge Brebner

27 July 2012

PROCEDURE - JUDGMENTS AND ORDERS - AMENDING, VARYING AND SETTING ASIDE - ACTIONS TO REVIEW OR SET ASIDE JUDGMENT

Application to set aside judgment entered in default of appearance at trial - affidavits filed but no appearance by applicants on hearing of application.

Held: Applicants have no genuine intentions to defend the action - Application dismissed.

Watson v Anderson (1976) 13 SAS 329, considered.

MELCHIORRE  v LEO & ORS
[2012] SADC 96

1. This is an application to set aside a default judgment.

2. The plaintiff claimed that a constructive trust existed in her favour and that    she was beneficially entitled to an amount of $420,000. The defendants denied the existence of the trust.

3. The court record shows that a listing appointment was convened on 29 November 2011. The defendants were represented by counsel at the appointment. The certificate of readiness for trial was unqualified. The trial was listed to commence on 4 June 2012. The records do not suggest that there were any concerns that the trial might not go ahead as scheduled with the defendants present.

4. The trial was duly called on for hearing on 4 June 2012. There was no appearance either by or for the defendants. On the application of counsel for the plaintiff a judge of the court entered judgment for the plaintiff in the amount of $420,000 in default of appearance and he then made consequential orders.

5. The defendants have applied to have that default judgment set aside. The plaintiff resists the application.

6. The principles the application engages are to be found in Watson v Anderson (1976) 13 SAS 329 and in the relevant paragraphs of Judge Lunn’s commentary.

7. The principles engaged can be shortly summarised as follows.  The power to set aside judgment is discretionary. The defendants must demonstrate that the discretion ought to be exercised in their favour. The reason for the default is a prominent consideration. Other relevant considerations include any prejudice which a plaintiff might suffer and the merits of the proposed defence in the sense that the defendants must satisfy the court that they genuinely intend to defend the action and that there is at least some possibility that their defence will succeed. To this end an affidavit of merits must be filed.  That said, the court should not attempt to try the case on the affidavits.

8. Moreover, even though the courts should not attempt to try the case on the affidavits, the court is not bound to act on the terms of the defendant’s affidavit if it deposes to facts which are plainly incredible, even though those facts, if accepted, would amount to a good defence and, similarly, a mere statement by the defendant he has a good defence is not, without more, sufficient.

9. As Walters J puts it, in Watson v Anderson[1] the court must be in a position to see for itself on the pleadings and affidavit evidence a bona fide case fit to be tried has been made out.[2]

   [1] Watson v Anderson (1976) 13 SASR at 329

   [2] Watson v Anderson (1976) at 335 per Bray CJ at 341

10. There was no appearance by or for the defendants when the application was called on for hearing.  A Ms Conder was present in court. She said she was the representative of the defendants.  I granted her the indulgence of addressing the court. She informed me that the defendants could not afford representation and that they currently live in the Republic of Fiji.

11. The defendants have each filed separate affidavits in almost identical terms. The affidavits appear to have been sworn by them before a notary public at Suva, Fiji. Ms Conder informed me the defendants relied on the contents of their affidavits.

12. The common theme running through the affidavits is that the defendants are in default of appearance because they fled the jurisdiction as they are in fear of their lives and their families’ lives, that they have been threatened, that they have no confidence in the police, that police inaction has contributed to their fears, that corrupt police officers are parties to a common purpose to ruin their reputations and their livelihoods and those of their supporters and that they are the subject of conspiracies.

13. The defendants also depose to the merits of their defences.

14. It is plain that if I were to grant the application the issues at trial would essentially distil down to issues of credibility which I cannot and should not attempt to resolve on the face of the affidavits.  It is thus not possible to say one way or the other whether there is any merit in the proposed defences.

15. This is not the end of the matter.

16. The defendants also depose to the fact that they have lived in Fiji since they fled the jurisdiction. They say that in the lead-up to the date fixed for trial they were in areas of Fiji where communication with their solicitors in Adelaide was either difficult or impossible and that the prevailing weather conditions made travel in Fiji both difficult and dangerous.

17. It is necessarily implicit in the affidavits that if the application were to be granted the defendants have no intention of returning to the jurisdiction for the trial and that they would propose to make their defences by way of affidavit.

18. If the matter went to trial the defendants would have to be present in court or appear via video link. This would present considerable difficulties but, in my view, it is not a matter which can properly be taken into account in favour of the plaintiff’s resistance of the application.

19. Much of what is in the affidavits is in reality so inherently implausible that it cannot properly be accepted and this cannot do other than cast significant doubt on the veracity of the assertions which the defendants make about why they were in default of appearance, about the merits of their respective defences and their intentions genuinely to defend the action.

20. Indeed the defendants do not really address the reasons for being in default. They do not say in as many words that they did not attend on the day fixed for trial because of their fears or because of prevailing difficulties in Fiji, or both. Nor do they explain why they chose to travel to remote areas in the lead-up to the trial when, if they were seriously intending to defend the action one might have expected them to confine themselves to localities where communications were best, so that they could give instructions and take advice. Indeed, if they were seriously intending to defend the action one might have expected them to have remained in such a locality so that they could instruct counsel or some lay representative of theirs to attend on the day fixed for trial to explain their absence, or indeed one might have expected them to have made such arrangements before they travelled to the remote localities.

21. Furthermore, the fact that the trial was set down for hearing and the fact that the certificate of readiness for trial was unqualified invites suspicion about the bona fides of the defendants in that if they genuinely feared for their safety if they returned for the trial one might have expected that the trial would not have been listed in the first place, or one might have expected the certificate to be qualified in this regard.

22. In all the circumstances it is my view the so-called explanations for the default are spurious and that the defendants have no genuine intentions to defend the action and that they have made the application simply as a delaying tactic.

23. The application is rejected and I reserve the right to edit or amend these reasons.

24. I order that the defendants pay the plaintiff’s costs of the application to be fixed by a Master of the court.