Nd v AB (No 2)

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	ND v AB (No 2)
Citation:	[2022] ACTSC 100
Hearing Date(s):	14 April 2022
DecisionDate:	14 April 2022
Before:	McCallum CJ
Decision:	(1) That judgment be entered in favour of the plaintiff against the defendant for damages to be assessed. (2) That the proceedings be stood over before the registrar on Thursday 28 April 2022 for allocation of a listing for the assessment of damages, and any appropriate directions; (3) The defendant to pay the plaintiff’s costs of the present application; (4) The listing hearing on 9 May 2022 is vacated.
Catchwords:	PRACTICE AND PROCEDURE – Default Judgment – Where the defendant has not filed a defence – where a freezing order was previously imposed
Cases Cited: Legislation Cited:	ND v AB [2022] ACTSC 99 Court Procedures Rules 2006 (ACT)
Parties:	ND ( Plaintiff) AB ( Defendant)
Representation:	Counsel A Schubert ( Plaintiff) None (ex parte) ( Defendant)
Solicitors Blumers Personal Injury Lawyers ( Plaintiff) None
File Number(s):	SC 394 of 2021

McCALLUM CJ:

These are proceedings for damages for personal injury commenced by a plaintiff known by the pseudonym “ND” against a defendant known by the pseudonym “AB”. The parties are known by pseudonyms because the basis for the claim is the plaintiff's complaint that the defendant, her uncle, sexually assaulted her when she was a young child. He has been found guilty of criminal offences in respect of those allegations and is currently serving a term of imprisonment.

In the civil proceedings, that is these proceedings, the defendant was directed to serve a defence by 4 April 2022. That date has been and gone and no defence has been filed. Instead, the defendant has corresponded with the plaintiff (copied to the court) in effect inviting her to explain why she is going to the trouble of suing him when he has no money.

On the strength of that correspondence and other material before me on a previous occasion (ND v AB [2022] ACTSC 99) I granted freezing orders in circumstances where it appears from real property searches that, contrary to that representation, the defendant does in fact have an interest in real property in this jurisdiction.

By separate application filed 13 April 2022, the plaintiff now seeks default judgment against the defendant. I have considered the affidavit of Ms Schubert sworn in support of the application and am satisfied that it is appropriate to grant relief of the kind sought.

Rule 1118 of the Court Procedures Rules 2006 (ACT) confers power on the court to enter default judgment in circumstances where a party either has not filed a defence within the time allowed under the rules or has not filed a defence within such time as has been agreed or allowed by the court. That power is enlivened for the reason already stated.

Rule 1122 permits the court to enter judgment for the plaintiff against the defendant for damages to be assessed in a claim for unliquidated damages, as is the present claim. The rule specifies matters which must be addressed in the affidavit in support and those matters have been addressed in Ms Schubert's affidavit in the present matter. There being no indication on the part of the defendant as to any reason why the court should stay its hand in exercising the power to enter default judgment, it is appropriate to do so. I make the following orders:

(1) That judgment be entered in favour of the plaintiff against the defendant for damages to be assessed.

(2) That the proceedings be stood over before the registrar on Thursday 28 April 2022 for allocation of a listing for the assessment of damages, and any appropriate directions;

(3) The defendant to pay the plaintiff’s costs of the present application;

(4) The listing hearing on 9 May 2022 is vacated.

I certify that the preceding six [6] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum.

Associate:

Date:

In the case of ND v AB (No 2), the Supreme Court of the Australian Capital Territory was presented with an application for default judgment from the plaintiff, ND, against the defendant, AB, who is currently incarcerated for sexual offences against the plaintiff when she was a child. The plaintiff sought default judgment because the defendant had failed to file a defence within the time stipulated by the court. Instead, the defendant had made correspondence with the plaintiff, copied to the court, which suggested that the defendant had no means to pay any potential damages. The court had previously imposed freezing orders on the defendant's assets after finding that he had misrepresented his financial situation.

The legal issues before the court were whether the plaintiff was entitled to default judgment under Rule 1118 of the Court Procedures Rules 2006 (ACT) due to the defendant's failure to file a defence and whether the court should exercise its discretion to award damages to the plaintiff. The court had to consider the provisions of Rule 1122, which permits the entry of judgment for unliquidated damages in the absence of a defence.

The court found that the power to enter default judgment was indeed activated due to the defendant's non-compliance with the court's direction to file a defence. The court was satisfied that the plaintiff's affidavit met the requirements set out in Rule 1122 and that there were no grounds to stay the exercise of the court's discretion in entering default judgment. The court made several orders, including that judgment be entered in favour of the plaintiff for damages to be assessed, that the proceedings be stood over for the assessment of damages, and that the defendant pay the plaintiff's costs of the application.

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