National Australia Bank Limited v Watkins
[2024] WASC 30
•9 FEBRUARY 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NATIONAL AUSTRALIA BANK LIMITED -v- WATKINS [2024] WASC 30
CORAM: ACTING MASTER MCDONALD
HEARD: ON THE PAPERS
DELIVERED : 9 FEBRUARY 2024
FILE NO/S: CIV 2250 of 2022
BETWEEN: NATIONAL AUSTRALIA BANK LIMITED
Plaintiff
AND
GRAEME FREDERICK WATKINS
Defendant
Catchwords:
Practice and procedure - Application for leave to enter late appearance - Application to set aside default judgment - Principles to be applied - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA) O 9 r 1(4), O 12 r 5, O 13
Result:
Leave to enter late appearance granted
Application to set aside default judgment dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr B C Smith |
| Defendant | : | In Person |
Solicitors:
| Plaintiff | : | Dentons Australia |
| Defendant | : | In Person |
Case(s) referred to in decision(s):
Glew v Frank Jasper Pty Ltd [2010] WASCA 87
Hall v Hall [2007] WASC 198
Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338
McInerney v Esanda Finance Corp Ltd (Unreported, WASC, 17 January 1997)
Palmer v Prince [1980] WAR 61
Pata Nominees Pty Ltd v Veldt Nominees Pty Ltd (1992) 7 WAR 304
Smart v Prisoner Review Board (WA) [2012] WASC 48
Starrs v Retravision (WA) Ltd [2012] WASCA 67
Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382
ACTING MASTER MCDONALD:
The defendant has filed two applications, one for leave to enter a late appearance and one to set aside default judgment entered against the defendant on 2 June 2023 in default of appearance.
For the reasons that follow I grant leave to the defendant to file an appearance but the application to set aside default judgment is refused.
Background
The plaintiff brought an action against the defendant for the payment of amounts outstanding under two loan agreements which were secured by mortgages over two properties owned by the defendant in Forrestfield and Kiara (the properties).
The writ was filed on 28 November 2022. On 15 February 2023 the plaintiff applied to the court for orders for substituted service having been unable to serve the defendant personally.
On 22 February 2023 orders were made by a registrar granting leave to serve the writ of summons by substituted service by way of prepaid ordinary post, by email and by text message. An affidavit of service sworn 29 March 2023 deposed to substituted service on the defendant having occurred on 24 February 2023.
No appearance was filed and on 2 June 2023 judgment was entered against the defendant pursuant to O 13 r 6 of the Rules of the Supreme Court 1971 (WA) (RSC).
Orders were also made requiring the defendant within 28 days after service of the judgment to give the plaintiff vacant possession of the properties and that the defendant pay the amount due under the loan agreements.
Applications
On 24 August 2023 the defendant filed an appearance and was advised by the Supreme Court registry that he would need to make an application for leave to file a late appearance pursuant to O 12 r 5 of the RSC. Order 12 r 5(1) provides:
(1)A defendant may not enter an appearance in an action after judgment has been entered therein except with the leave of the court.
…
The defendant's application to file an appearance was supported by an affidavit affirmed on 23 August 2023 (Mr Watkins' affidavit).
On 30 August 2023 the defendant filed a chamber summons in the following terms:
… for orders/directions that the orders of the Registrar are in excess of power and authority under R v Davison HCA 46 1954 and Harris v Caladine HCA 9 1991 the Registrar is a stranger to the Court.
There was no personal service of the Writ of Summons on the person as required at Law and Default Judgement was made in absentia without my knowledge.
No further affidavit was filed in support of the chamber summons.
Legal Principles
The jurisdiction to set aside a default judgment is found in O 13 r 14 of the RSC, which provides that the 'Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order'.
The discretion in this rule is not qualified. It is to be exercised 'so as to do justice between the parties, having regard to the circumstances of the case'.[1]
[1] Starrs v Retravision (WA) Ltd [2012] WASCA 67 [36]; Hall v Hall [2007] WASC 198 [63]; Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [2014] WASC 382 [9].
As a general rule, that may be departed from in rare and appropriate cases, a judgment regularly entered will not be set aside unless the court is satisfied that there is a defence on the merits.[2]
[2] Starrs v Retravision (WA) Ltd [36] citing Palmer v Prince [1980] WAR 61, 63.
In addition to considering the merits of any defence, the court may take into account the explanation given for allowing judgment to be entered, the length of delay between the judgment being entered and the application to set it aside, the defendant's explanation for the delay and the extent of any prejudice that the plaintiff may suffer if the judgment is set aside.[3]
[3] Wildflower Electrical Refrigeration Service (WA) v Refrigid Pty Ltd [11].
Different considerations apply depending on whether the default judgment was irregularly or regularly entered. Order 13 r 1(3)(a) of the RSC requires that judgment must not be entered against a defendant unless an affidavit is filed by or on behalf of the plaintiff proving service of the writ on the defendant and an indorsement of service in accordance with O 9 r 1(4) of the RSC. This does not apply where the defendant's solicitor indorses the writ with a statement that he or she accepts service on the defendant's behalf (O 13 r 1(3)(b)).
Order 9 r 1(4) of the RSC states in relation to claims for a debt or liquidated demand:
(4)Where a writ is served on a defendant otherwise than by virtue of subrule (2) or (3), then subject to Order 10 rule 9(9), the plaintiff in the action begun by the writ is not entitled to enter judgment against the defendant in default of appearance or in default of defence unless, within 3 days after service, the person serving it indorses on the sealed copy of the writ the following particulars —
(a)the day of the week and date on which it was served;
(b)where it was served;
(c)the person on whom it was served;
(d)if the person on whom it was served is not the defendant — the capacity in which the person was served;
(e)if under Order 4AA rule 3(2) a Form 4 must be attached to the writ when it is served — a statement that the Form 4 was attached to the front of the writ when it was served.
In relation to claims for a debt or liquidated demand, if the writ is not properly indorsed as required by O 9 r 1(4), a default judgment based on a defective indorsement will be set aside as irregular.[4]
[4] McInerney v Esanda Finance Corp Ltd (Unreported, WASC, 17 January 1997) citing Pata Nominees Pty Ltd v Veldt Nominees Pty Ltd (1992) 7 WAR 304.
Evidence
The plaintiff seeks to rely on the following affidavits sworn by Antony Jorge Scott Botello, who is a law graduate employed by the solicitors for the plaintiff:
(a)an affidavit sworn on 15 February 2023 (Mr Botello's February affidavit) in support of the plaintiff's application for substituted service;
(b)an affidavit sworn on 29 March 2023 (Mr Botello's March affidavit) deposing to steps taken to comply with the order for substituted service;
(c)an affidavit sworn on 23 May 2023 (Mr Botello's May affidavit) deposing to service of the form 36A notice on the defendant;
(d)an affidavit sworn on 12 September 2023 (Mr Botello's September affidavit) opposing the application to set aside default judgment.
The only affidavit filed by the defendant is Mr Watkins' affidavit sworn on 23 August 2023 filed in support of the defendant's application for leave to file a late appearance.
The defendant is a self‑represented litigant. The principles applicable to self‑represented litigants are well‑known. A litigant in person should be afforded some latitude and the documents in which he articulates his case should be approached with some flexibility.[5] The court needs to be careful to ensure that if he has a case, that it is not denied because of a poorly expressed document or submission.[6] At the same time the court must ensure that any latitude given does not work an injustice to the other party.[7] I have adopted those principles in assessing the evidence relied upon by the defendant.
Plaintiff's evidence
[5] Smart v Prisoner Review Board (WA) [2012] WASC 48 [10].
[6] Ibrahim v The Honourable Justice Carolyn Martin [2012] WASC 338 [21].
[7] Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10].
The plaintiff's evidence is taken from Mr Botello's affidavits.
The plaintiff's records state that the defendant's residential address is the Kiara property, of which he is the registered proprietor.[8] A search of the Australian Electoral Commission electoral roll also lists the defendant's address as the Kiara property.[9] In a telephone conversation with Mr Botello on 5 December 2022, the person to whom Mr Botello spoke refused to verify his identity or discuss the matter further.[10]
[8] Mr Botello's February affidavit [2] ‑ [3], 'AJSB1'.
[9] Mr Botello's February affidavit [7], 'AJSB4'.
[10] Mr Botello's February affidavit [4].
On 7 December 2022 the defendant sent an email to the plaintiff from his email address referring to recent telephone calls.[11] On 9 December 2022 the plaintiff sent a letter by prepaid ordinary post addressed to the defendant at the Kiara property and by email to the email address used by the defendant enclosing a copy of the writ of summons and requesting the defendant contact the plaintiff or its process server to arrange service.[12]
[11] Mr Botello's February affidavit [5], 'AJSB2'.
[12] Mr Botello's February affidavit [6], 'AJSB3'.
On 22 February 2023 orders were made by a registrar granting substituted service which allowed the plaintiff to serve the writ of summons by prepaid ordinary post to the defendant at the Kiara property, by email to the email address used by the defendant and by SMS text message advising that an appearance was required to be entered by the defendant within 12 days.
On 29 March 2023 an affidavit of service was filed deposing that service had been carried out in accordance with the substituted service orders on 24 February 2023.[13] It is further stated that Mr Botello endorsed the sealed copy of the writ of summons with the day of the week and date on which it was served, where it was served, and the person on whom it was served with a statement that a form 4 was attached to the front of the writ of summons in the manner and form prescribed by the RSC.[14]
[13] Mr Botello's March affidavit [1] ‑ [4].
[14] Mr Botello's March affidavit [6].
In the absence of any appearance, the plaintiff applied for judgment in default of appearance on 1 June 2023 which was determined on the papers and judgment was entered by a registrar on 2 June 2023.
Defendant's evidence
On 24 August 2023 the defendant filed an affidavit in support of his application for leave to enter a late appearance. In light of the fact that the defendant is self‑represented I have also had regard to that affidavit for the purposes of determining the application to set aside default judgment. In that affidavit the defendant deposes:[15]
[15] Mr Watkins' affidavit [1] ‑ [8].
●he was not served with any documents from or by the plaintiff and he did not receive any documents at any time;
●his occupation was a truck driver 'at the time of the event' and his job was between Laverton and Leonora and there was no viable communication in that area;
●the COVID-19 pandemic caused considerable hardship and the bank had failed to address the matter at the time;
●his intentions are to defend the case on the ground there is a dispute between the bank and the defendant which has not been resolved or remedied;
●the defendant has sent letters to the plaintiff and has not received any correspondence from the plaintiff to date;
●'[a] default Judgment in a Mortgage Action by [a registrar] Dated: June 2023, no writ of summons was served on me in Person';[16] and
●he has made a form 80 application on the ground the registrar has no authority to act.
Plaintiff's evidence in response
[16] Mr Watkins' affidavit [7].
Mr Botello deposes on behalf of the plaintiff that the defendant was sent the writ of summons and statement of claim on three separate occasions:[17]
1.on 7 December 2022 the defendant responded to an email from an officer of the plaintiff from the email address named in the substituted service orders. On 9 December 2022 a copy of the writ of summons was sent by Mr Botello to that email address;[18]
2.on 24 February 2023 the writ was sent by post and email in accordance with the substituted service orders; and[19]
3.on 10 March 2023 a form 36A and form 4 notice attaching the writ of summons and statement of claim was sent by post and email.[20]
[17] Mr Botello's September affidavit [7].
[18] Mr Botello's February affidavit [6],'AJSB3'.
[19] Mr Botello's March affidavit 'AJSB1'.
[20] Mr Botello's May affidavit 'AJSB3'.
Mr Botello deposes that he believes the defendant did receive the writ of summons because on 13 March 2023, after the writ of summons was served on 24 February 2023, Mr Botello received a letter from the defendant dated 5 March 2023 titled 'Formal Challenge to Jurisdiction of all courts in the Commonwealth of Australia' and included a returned copy of the writ of summons and statement of claim which Mr Botello believes was the copy served on 24 February 2023.[21]
[21] Mr Botello's September affidavit [6] 'AJSB3'.
In that letter the defendant states:
Thank you for your letter dated 24 February 2023. At all times I am the Beneficiary of My Trust which your client borrowed money from to lend to me.
Later in the letter it is stated:
Your claimed writ of summons is a clear FRAUD as your claim is typed on a pre stamped file of papers and then you used a registrar to issue orders if that what you call your FRAUDULENT document.
You photoshopped the stamp when you claim (by FRAUD) it was filed.
There is no such entity as a registrar or any court in this country and as for Western Australia, we have no parliament or any Lawful courts. See attached Lawful Challenge to all purported courts in this country.
Until the British courts put every State constitution back in place there can never be courts or Lawful Government in this country …
Directions hearing
The defendant's application was listed for directions on 14 September 2023. The defendant sought a six week adjournment of his application on the basis both properties were on the market and he believed he may have a buyer for one of the properties. The plaintiff's solicitors objected to the adjournment referring to Mr Botello's September affidavit in which Mr Botello refuted the defendant’s claim that he had not received the writ of summons. As Mr Botello's September affidavit was only filed two days prior to the directions hearing, the defendant was ultimately given until 15 November 2023 to file any affidavit in response.
On 15 November 2023 the defendant sought an extension of time in which to file an affidavit in response as he claimed he had only recently received the transcript of the directions hearing. The defendant was given until 24 November 2023 to respond. On review of the action, it became apparent that the defendant had not been notified of the extension and the A/Principal Registrar granted a further extension until 1 February 2024. The defendant has not filed any further affidavits.
Disposition
In the absence of any further materials having been filed it is appropriate to determine the matter on the papers.
There is no evidence to suggest that judgment was not regularly entered. Mr Botello deposes to his compliance with O 13 r (1)(3) and O 9 r 1(4) of the RSC.
The defendant has not provided any evidence to refute the evidence of Mr Botello that, by letter dated 5 March 2023, the defendant returned to the plaintiff a copy of the writ of summons served on him in which he also referred to the plaintiff's letter sent with the service copy of the writ of summons. I therefore find the defendant was served in accordance with the orders for substituted service and had notice of the action against him. I do not accept that the reason for not entering an appearance was due to not being aware of the action against him or a defect in service.
The defendant's letter to the plaintiff was dated 5 March 2023, after the documents had been served on the defendant. Judgment was not entered until 2 June 2023. There was ample time within which the defendant could have entered an appearance and he did not. There is no explanation for the delay in failing to enter an appearance. I am satisfied that the judgment was served as the defendant refers to the orders of the registrar on 2 June 2023 in his affidavit. I do not know when it was served so I am unable to conclude there was any delay between service of the judgment and the defendant's application to set it aside.
A further reason given for wanting to defend the action is the defendant claims there is a dispute between the bank and the defendant which has not been resolved or remedied. However, no further details are given. I have insufficient information to find that that there is any defence on the merits of the action or that judgment should be set aside pending the resolution of a dispute that is not explained or particularised.
Finally, the defendant submits the action taken by the plaintiff was fraudulent and the documents were fraudulently executed. The defendant further submits the registrar had no authority to act, by which I understand to mean, taking into account his letter of 5 March 2023 to the plaintiff, that the plaintiff does not recognise the court or the authority of the registrar as the court does not comply with the Commonwealth Constitution.
There is no merit to any of these contentions. There is no evidence of fraud and no basis for concluding that the courts are unlawful.
For these reasons, while I would grant leave to the defendant to file the late appearance filed on 24 August 2023, pursuant to O 12 r 5 of the RSC, there is no basis to set aside the judgment entered against the defendant. The application to set aside default judgment entered on 2 June 2023 is refused. There is no reason why costs should not follow the event and the usual costs order will be made.
Orders
1.Leave to file an appearance is granted pursuant to O 12 r 5 of the RSC.
2.The application to set aside judgment entered on 2 June 2023 in default of appearance is dismissed.
3.The defendant pay the plaintiff's costs of the application to set aside default judgment to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LR
Associate to Acting Master McDonald
9 FEBRUARY 2024
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