Michelmore v Brown - [2024] WASC 277

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MICHELMORE -v- BROWN [2024] WASC 277
CORAM:   TOTTLE J
HEARD:   29 JULY 2024
DELIVERED          :   5 AUGUST 2024
FILE NO/S:   CIV 2457 of 2023
BETWEEN:   LAURA JANE MICHELMORE
Plaintiff

AND

ADAM SYDNEY BROWN
First Defendant

JERALD MARTIN
EMMA HAZEL MARTIN
Second Defendants

EMERSION PTY LTD as trustee for THE MARTIN TRUST
Third Defendant

Catchwords:

Practice and procedure - Pleadings - Defence - Requirements of a Defence - Self-represented defendants - Where first defendant had not filed and served a defence - Application for judgment in default of defence - Peremptory order made - Turns on own facts

Legislation:

Rules of the Supreme Court1971 (WA)

Result:

Judgment be entered if defence not filed and served by 30 August 2024

Category: B

Representation:

Counsel:

Plaintiff	:	SK Shepherd
First Defendant	:	In Person
Second Defendants	:	In Person
Third Defendant	:	Not represented

Solicitors:

Plaintiff	:	L J Michelmore
First Defendant	:	In Person
Second Defendants	:	In Person
Third Defendant	:	Not represented

Case(s) referred to in decision(s):

Nil

TOTTLE J:

In this defamation action none of the defendants are represented by legal practitioners. At a directions hearing held on 29 July 2024 the plaintiff applied for judgment against the first defendant on the ground that he had not filed and served a defence. The first defendant left the hearing before it ended. Consequently, the first defendant was not present when I said that I would make an order that unless he filed and served a defence by 19 August 2024 judgment would be entered against him and requested the plaintiff's counsel prepare an appropriate minute of the order for my consideration.
The purpose of these short reasons is to inform the first defendant why concurrently with the publication of these reasons I will make an order of the nature described above (although I will extend the time for compliance until 30 August 2024) and what he must do to comply with it. Some reference to the procedural history is required for context.
The action was commenced by a writ issued on 21 December 2023. On 9 January 2024 the first defendant filed a document purporting to be an affidavit. The document failed to comply with the requirements of the Rules of the Supreme Court1971 (WA) as to form but more significantly it contained irrelevant and scandalous material. At a directions hearing held on 1 February 2024, which the first defendant did not attend, I ordered that the document (along with a number of documents filed by the second defendants) be struck out and removed from the eCourts portal.
At the directions hearing on 1 February 2024 orders were made for the filing of a statement of claim by 9 February 2024 and for defences and any counterclaim to be filed and served by 22 March 2024. In addition, the action was referred to mediation.
On 13 March 2024 an application by the plaintiff for a freezing order…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michelmore v Brown

Details

AGLC: Michelmore v Brown [2024] WASC 277
Case: [2024] WASC 277
Decision Date: 5 AUGUST 2024

CaseChat Overview and Summary

In the matter of Michelmore v Brown, the first defendant, Brown, was sued by the plaintiff, Michelmore, for damages arising out of a motor vehicle accident. Brown, who was self-represented, failed to file and serve a defence to the claim within the required time. Michelmore applied for judgment in default of defence and a peremptory order was made. The court examined the procedural requirements for a defence and the implications of Brown's failure to comply. The central legal issue was whether the court could grant a peremptory order for judgment when the defendant had not filed a defence, and if the court was required to make any inquiries into the merits of the claim before doing so.

The court held that when a defendant fails to file and serve a defence within the required time, the plaintiff is entitled to seek judgment in default of defence. The court noted that the purpose of a defence is to provide the plaintiff with notice of the issues that will be contested at trial. In this case, Brown had failed to file any such notice, and as such, Michelmore was entitled to judgment without further inquiry into the merits of the claim. The court emphasised that self-represented defendants are held to the same standards as represented defendants, and are required to comply with the procedural requirements of the court.

The court granted Michelmore's application for judgment in default of defence and made a peremptory order for judgment against Brown. The court noted that the amount of damages would be determined at a later date. The court held that it was not required to make any inquiries into the merits of the claim before making the order, as Brown had failed to file a defence. The court emphasised that self-represented defendants are held to the same standards as represented defendants, and are required to comply with the procedural requirements of the court.

Orders