SC v DC

[2023] NSWDC 474

District Court

New South Wales

Medium Neutral Citation:

SC v DC [2023] NSWDC 474

Hearing dates:

19 October 2023

Date of orders:

19 October 2023

Decision date:

19 October 2023

Jurisdiction:

Civil

Before:

Dicker SC DCJ

Decision:

In relation to the Notice of Motion filed 15 August 2023:

(1)   The application by the defendant to adjourn the hearing of the Notice of Motion is dismissed;

(2)   The Notice of Motion is dismissed.

(3)   The defendant is to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed;

(4)   Liberty is granted to the defendant to apply by Notice of Motion with affidavit in support within 14 days of 19 October 2023 to set aside the orders in 2 and 3 above.

(5)   The matter is listed for an assessment hearing on 9 November 2023 at 10am with an estimate of one day.

(6)   Any Notice of Motion to set aside Orders 2 and 3 above by the defendant is to be made returnable on 9 November 2023.

(7)   The plaintiff is to file and serve any further affidavit evidence as to assessment issues by 5pm on 26 October 2023.

Note: The defendant asserts she was ill and in hospital, but there is no satisfactory evidence to that effect. No draft defence has been provided. The plaintiff has indicated through his counsel that he will take no steps for a period of 21 days to enforce against the defendant the default judgment which has been entered.

Catchwords:

PRACTICE AND PROCEDURE – application for an adjournment due to illness – lack of evidence – application to set aside a default judgment

Legislation Cited:

Civil Procedure Act 2005 (NSW)

Cases Cited:

J & M McNamee Holdings Pty Limited v Mungerie Vale Pty Limited [2019] NSWCA 283

Category:

Procedural rulings

Parties:

SC (Plaintiff)
DC (Defendant)

Representation:

Counsel:
T Smartt (Plaintiff)

Solicitors:
Inner City Legal Centre (Plaintiff)
Self-Represented (Defendant)

File Number(s):

2023/00142785

Publication restriction:

Yes
Pursuant to section 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW):
(a) An order that publication in Australia of the name of the plaintiff in connection with these proceedings is prohibited until further order, except by the Court, court staff, legal representatives, parties and witnesses for the purposes of or directly associated with the proceedings;
(b) An order that publication in Australia of other material that would be tending to identify the plaintiff in connection with these proceedings is prohibited until further order, except by the Court, court staff, legal representatives, parties and witnesses for the purposes of or directly associated with the proceedings;
(c) The plaintiff is hereafter to be identified in published court listings by the pseudonym “SC”;
(d) This order is made on the grounds that:
(i) It is necessary to protect the safety of the plaintiff; and
(ii) It is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.

JUDGMENT – EX TEMPORE

1. On 16 August 2023, matter number one in the list of SC v [DC] came before me and I made directions. Default judgment had been entered in favour of the plaintiff. The defendant, who was then represented by a solicitor who appeared by telephone, indicated that she wished to press a Notice of Motion to set aside the default judgment which had been entered. Directions were made by me in relation to the filing of evidence by both parties and I fixed the hearing of the Notice of Motion for 19 October 2023 with an estimate of half a day.

2. In support of the application of the defendant, an affidavit of the defendant sworn 15 August 2023 was filed. That affidavit indicated that:

1. The defendant did not know a person of the name of the plaintiff and the pleadings did not indicate who that person was. It was also stated: “The pleadings did not represent any dealings I have had for the provision of personal services at that time;”

2. The pleadings did not accord with the defendant’s recollection of her dealings with the working name of the plaintiff; and

3. The defendant denied entering into a partly oral and partly written contract with the plaintiff.

3. The background to the matter is that the plaintiff alleged in his Statement of Claim that he had provided, by way of contract, social and sexual services to the female defendant from August to September 2022 and that he had not been paid for such services at the agreed rate.

4. The defendant later filed a second affidavit sworn 28 August 2023. In that affidavit, contrary to the first affidavit, the defendant did admit entering into an agreement with the plaintiff for the provision of some services - it appears two hours at $300 an hour - but disputed the provision of other services by way of contract. She also stated that an alleged contract entered into on 1 November 2022 was signed by her under duress.

5. Following that, the plaintiff filed an affidavit from Katherine Green, the solicitor acting for him, dated 13 September 2023. That affidavit is lengthy and annexes a voluminous amount of email correspondence.

6. The effect of the defendant’s second affidavit is that she admits that emails from a “xxx xxx” are from her. I also note that emails purportedly from the plaintiff to her in the end use her first name, which she claims in one email to it being her second name.

7. Mr Smartt, who appears for the plaintiff, has taken me through the annexures to Ms Green’s affidavit in some detail.

8. I am satisfied that on the face of the annexures, there appears to be admissions from the defendant that considerable sums were owing to the plaintiff by the defendant amounting to some $48,000 for services provided. It is unclear whether the emails admit the services were of a social nature only or also of a sexual nature. The documents said to be signed under duress post-dated the emails which appear on their face to constitute admissions of a debt and an obligation to pay. What I have indicated is a brief summary only of the material.

9. Before the hearing today, there was substantial email correspondence between my associate and the defendant in relation to her availability to appear today. The substance of the email correspondence is that the defendant was significantly unwell with flu and fever symptoms, had attended a hospital, was seen by doctors at the hospital, stayed overnight at the hospital and the medical personnel there undertook blood tests and other tests “which showed more than expected”: email dated 19 October 2023 at 8.17am which is part of Exhibit 1. There is no independent medical evidence before me from the hospital or from any medical practitioner as to the plaintiff’s medical status.

10. The last email exchange received by the Court seems to have been a message on the Court’s telephone system saying the defendant is not able to attend for her matter listed today, that she has been in hospital since yesterday and is currently undergoing multiple testing as she is unwell. Her discharge time was unknown and it is indicated that she will provide a medical certificate and documents. The defendant seeks an adjournment of the hearing.

11. Mr Smartt, who appears for the plaintiff, opposes the adjournment. The opposition is based on the following matters:

1. There is not satisfactory evidence before the Court justifying an adjournment. In particular, there is no satisfactory direct evidence other than through the defendant of her medical condition, including documents from the hospital or medical reports;

2. In any case, on the face of the second affidavit of the defendant of 28 August 2023, the defendant has admitted at least an obligation to pay the amount of $600;

3. On the materials annexed to Ms Green’s affidavit, on their face the defendant has admitted an obligation to pay $48,000 to the plaintiff;

4. No draft defence has been provided by the defendant;

5. The affidavits and evidence sought to be relied upon by the defendant are inconsistent. In particular, the covering letter serving the Statement of Claim refers to both the real and working name of the plaintiff, yet the defendant asserts no knowledge of the plaintiff’s real name. She then later says she was aware of his working name. I am satisfied that the covering letter which was served on the defendant indicated both names.

12. In all of those circumstances, Mr Smartt submits that I could not be satisfied on the evidence, that an adjournment should be granted. As the defendant had notice of today’s hearing, the Notice of Motion should be dismissed.

13. The Court has the power to adjourn proceedings where proper grounds are established for such an adjournment. In particular, the Court must act in accordance with the overriding purpose in relation to civil proceedings being to facilitate the just, quick and cheap resolution of the real issues in the proceedings under s 56 of the Civil Procedure Act 2005. Section 58(1)(a)(ii) indicates that in relation to “any order granting an adjournment or stay of proceedings”, the Court must seek to act in accordance with the dictates of justice. Section 59 obliges the Court to take into account the elimination of delay and s 57 obliges the Court to take into account “the efficient disposal of the business of the court” and “the just determination of the proceedings.”

14. I am not satisfied on the basis of the material before me that the defendant has established a proper basis to adjourn the proceedings.

15. All of the material from her is assertive in nature and there is no independent evidence that she is unwell or that she is attending hospital or has been admitted overnight.

16. It may be that the defendant will be able to produce that evidence but she has not so far. In forming that view, I take into account that the defendant, if it is correct, is in hospital and it may be difficult for her to get that evidence. However, I would have thought she could have asked for a handwritten note from someone there, including a nurse or a medical practitioner, providing some evidence for her position.

17. Whilst I am not satisfied that the adjournment should be granted, I do not consider that the defendant should be entirely closed out in relation to the matter if relevant material is available. I will come back to that later. Accordingly, I reject the application made by the defendant to adjourn the Notice of Motion.

18. The question is now whether I should proceed with the Notice of Motion in the circumstances. I can see no reason why the Court should not hear the Notice of Motion. I have taken into account the material which has been read, being the affidavit of Ms Green of 13 September 2023 and the two affidavits of the defendant which became Exhibit 2 in the proceedings. I also take into account that no draft defence has been filed.

19. It seems - and I can put it no higher than that - that the defendant’s defence relates to the quantum of the claim and also an allegation of duress in relation to the signed document which is at p 203 of the exhibited documents to Ms Green’s affidavit. However, there does not appear to be on the evidence an asserted claim of duress in relation to what occurred prior to that. I am satisfied, from the emails which Mr Smartt carefully took me through, that there appears to be, in substance, an admission of a debt to the plaintiff and a liability to pay $48,000. In particular, I refer to the emails which are exhibited to Ms Green’s affidavit at pp 91, 108, 114, 121 and 199.

20. Although that does not cover all of the amounts claimed by the plaintiff, at present I am not satisfied that there is evidence before me which would provide a bona fide defence in relation to the plaintiff’s claim.

21. In considering that, I take into account the principles set out by his Honour Justice Gleeson (with whom Brereton JA and Simpson AJA) agreed in the Court of Appeal decision of J & M McNamee Holdings Pty Limited v Mungerie Vale Pty Limited [2019] NSWCA 283 at paras 48-52.

22. At the end of the day, I am not satisfied, partly because there is no draft defence but partly because of the other matters I have mentioned, that the applicant/defendant has a bona fide ground of defence. I would also wish to ask questions about the delays in bringing the application. These are only very generally referred to by Ms xxx in paragraph 19 of her first affidavit.

23. I am not satisfied, applying the test set out in paragraph 49 by Gleeson JA in McNamee that on the material before me, it is in the interests of justice to allow the defendant to set aside the default judgment. I would require, at the very least, a draft defence, including dealing in relation to the initial email exchanges, and a fuller explanation for the delay.

24. I take all of those matters into account in determining the appropriate course to be adopted. In my view, the appropriate result is to dismiss the Notice of Motion seeking to set aside the default judgment but to give the defendant an opportunity to apply by way of Notice of Motion with affidavit in support within 14 days to set aside any orders for dismissal and costs. In my view, that affords the defendant a proper opportunity to establish stronger grounds for the adjournment, if they exist.

25. Accordingly, the orders I make are as follows:

In relation to the Notice of Motion filed 15 August 2023:

1. The application by the defendant to adjourn the hearing of the Notice of Motion is dismissed;

2. The Notice of Motion is dismissed.

I can no reason why the defendant in those circumstances should not pay the plaintiff’s costs of the Notice of Motion as agreed or assessed. Cost generally should follow the event and I have determined that it is appropriate for the Notice of Motion to be dismissed. I therefore order:

3. The defendant is to pay the plaintiff’s costs of the Notice of Motion as agreed or assessed.

4. Liberty is granted to the defendant to apply by Notice of Motion with affidavit in support within 14 days of 19 October 2023 to set aside the orders in 2 and 3 above.

5. The matter is listed for an assessment hearing on 9 November 2023 at 10am with an estimate of one day.

6. Any Notice of Motion to set aside Orders 2 and 3 above by the defendant is to be made returnable on 9 November 2023.

7. The plaintiff is to file and serve any further affidavit evidence as to assessment issues by 5pm on 26 October 2023.

Note: The defendant asserts she was ill and in hospital, but there is no satisfactory evidence to that effect. No draft defence has been provided. The plaintiff has indicated through his counsel that he will take no steps for a period of 21 days to enforce against the defendant the default judgment which has been entered.

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Decision last updated: 08 November 2023