| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : THORP -v- CIUPRYK [2002] WADC 136 CORAM : MACKNAY DCJ HEARD : 8, 9, 24 MAY 2002 DELIVERED : 8 JULY 2002 FILE NO/S : CIV 2901 of 1999 BETWEEN : DOUGLAS HENRY ALBERT THORP Applicant (Defendant)
AND
STEVEN DALE CIUPRYK
Respondent (Plaintiff)
Catchwords: Practice - Western Australia - Practice under the Rules of the Supreme Court of Western Australia - Practice under the District Court Rules - Application to set aside default judgment - Form of judgment entered pursuant to springing order - Whether judgment effective - Failure of defendant to provide discovery - Issue of case management summons in relation to discovery after springing order served - Whether defendant misled - Whether springing order ought be amended
Legislation: Rules of the Supreme Court 1971
Rules of the District Court
District Court of Western Australia Act 1969 s 87(1)
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Result:
Application allowed Representation:
Counsel:
Applicant (Defendant) : Mr W J Chesnutt
Respondent (Plaintiff) : Mr T M Hobday
Solicitors:
Applicant (Defendant) : Ian Tait & Co
Respondent (Plaintiff) : Lewis Blyth & Hooper
Case(s) referred to in judgment(s):
ACN 076 676 438 Pty Ltd (In Liq) & Anor v A-Comms Teledata Pty Ltd & Anor [2000] WASC 214
Norman v Norman (1992) 6 WAR 372
Case(s) also cited:
Bowen v Stott [2001] WASC 219
Eng Mee Yong v Letchumanan [1980] AC 331
Evans v Bartlam [1937] AC 473
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Ianello v Bottoli (1998) 19 SR (WA 27
Kearnan v Saudi Livestock Transport & Trading Co (1987) 4 SR (WA)
Kostokanellis v Allen [1974] VR 596
Palmer v Prince [1980] WAR 61
Payton & Anor v Harvard Nominees Pty Ltd, unreported; SCt of WA; Library No 930132; 12 March 1993
Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Rolland & Anor v Bank of Western Australia, unreported; FCt SCt of WA; Library No 980498; 3 September 1998
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Introduction 1 This is an appeal against an order of a Deputy Registrar made on 5 December 2001 in which the defendants application to set aside a default judgment entered 1 September 2000 was dismissed. 2 The judgment was for the aggregate of various sums of money, and interest thereon, claimed by the plaintiff. It left on foot however, it is common ground, the defendant's counterclaim against the plaintiff, also for money and interest thereon. 3 That judgment was entered following a failure on the part of the defendant to provide discovery on oath within 7 days of an order made in the absence of the defendant by the Deputy Registrar on 13 July 2000, that being a "springing" order. 4 An initial order for discovery had been made on 9 June 2000. 5 The terms of the order of 13 July 2000 were relevantly as follows: "1. Unless within 7 days of the date of service of this Order the Defendant do comply with Order 1 of Deputy Registrar Harman dated the 9th day of June 2000, the First Defendant's Defence be struck out and judgment be entered against the First Defendant for the Plaintiff." 6 According to an affidavit of service filed on behalf of the plaintiff a copy of the order of 13 July 2000 was subsequently served on the defendant, by registered post, the date of delivery being 14 August 2000. 7 On 1 September 2000 the plaintiff's solicitors then lodged a form of default judgment, which set out the following: 8 The form of judgment bears the seal of the Court but provision was not made for it to be, and nor was it signed by a Registrar.
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9 Nonetheless, on 13 September 2000 a Writ of Fieri Facias was issued out of the Court.
10 After service of the springing order had been effected on the defendant, but prior to the lodging of the form of default judgment, a summons for directions following default in case timetable dated 22 August 2000 had issued out of the Court, that bearing a return date and time of 12 September 2000 at 2.15 pm. 11 It is said by the defendant, and not apparently in dispute, that the defendant received that summons on 24 August 2000. 12 On 12 September 2000 the return date of the summons, the defendant filed a signed but unsworn list of documents, in an apparent attempt to provide discovery. 13 There was no hearing in fact held on 12 September 2000. 14 Subsequently, on 6 December 2000, the defendant filed a chambers summons, and a number of affidavits in support, seeking to set aside the judgment of 1 September 2000. 15 The affidavits bear various dates, the earliest being 19 October 2000. 16 At the time of making of the orders for discovery there had been no solicitor on the record for the defendant, but on 23 August 2000 Eley Palmer Archer filed a notice that it acted on behalf of the defendant in relation to the action. 17 However, both the list of documents and the subsequent chamber summons were filed by the defendant in person. 18 Apart from seeking to show that he had a defence on the merits, the defendant in an affidavit sworn on 5 December 2000, filed with the summons, made reference to the receipt of the case management summons for directions on 24 August and averred that following receipt of the same he had been advised by his solicitor Mr Archer to provide discovery prior to the hearing of that summons on 12 September 2000, which had been duly done, and he had then attempted to attend a hearing at the appointed time, but had been informed that there was no hearing and that judgment had been entered. 19 In a letter of 6 December 2000 addressed to the Court the defendant also claimed that he had been advised "yesterday" of the basis on which the default judgment had been obtained.
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20 As to the circumstances surrounding the entry of judgment, in his reasons for decision the learned Deputy Registrar (par 15) said that it appeared that "at the very least" the action taken by the Court in issuing the summons had not been necessary and that it appeared "it may have distracted the defendant".
21 Nonetheless, the Deputy Registrar as stated declined to set aside the default judgment. 22 In bringing this appeal the defendant says that he has a defence to the claim such that he ought be permitted to defend the same, but in the first place says that the judgment ought be set aside ex debito justitiae, as having been irregularly entered, given the circumstances, including the issue of the case management summons for directions and its service on the defendant. 23 The absence of proper authentication on the form of judgment was also relied on, once raised.
Rules in relation to discovery 24 The Rules of the Supreme Court 1971 ("RSC") provide generally for discovery in RSC O 26. RSC O 26, r 15(1) then provides that where a party fails to comply with an order for discovery the Court may make "such order as it thinks just including in particular, an order that the action be dismissed or as the case may be, an order that the defence be struck out and judgment entered accordingly". 25 In relation to case management RSC O 1, r 4B(1) provides that actions will to the extent that the resources of the Court enable such to occur, be managed and supervised in accordance with a system of case flow management. 26 The District Court of Western Australia Act 1969 (WA) s 87(1) provides that the practice and procedure of the District Court shall be governed by rules of Court, and where no special provision is contained in such the RSC have application. 27 The District Court Rules ("DCR") also provide for case flow management, in O 1. 28 In relation to any action commenced by writ issued out of the Perth registry after 30 March 1996, or out of such other registry as may be later
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proclaimed, and so "as to achieve the goals stipulated" in inter alia, RSC O 1, r 4B(1), DCR O 1, r 2(a) provides that the same shall be conducted in accordance with the timetable set out therein, such timetable to apply "unless the Court otherwise orders" and there being a date set out for "Completion of Discovery". 29 DCR O 1, r 4 then provides that in the event that an action is not conducted in accordance with the timetable the Court may issue a summons for directions returnable before a registrar, and that on the hearing of the same a registrar may make "the usual orders in respect of default" and may also order variations to the timetable. 30 Further in relation to discovery, DCR O 2, r 1 provides that in an action commenced by writ discovery shall be given within 75 days of an appearance being filed, and that with the consent of each party such may be by way of an informal list, but shall otherwise be by affidavit. 31 It is provided in DCR O 2, r 2 that save where inconsistent RSC O 26 shall continue to have effect. 32 Given the above, it is clear that once the Court does "otherwise" make an order that the timetable does not apply, there would be no scope for the issue of a standard case management summons for directions. 33 The orders for discovery here, including the springing order, did not in terms state that, but in relation to discovery at least were necessarily to that effect. 34 Further, the issue of a standard summons here, not being pursuant to any further order, could not vary the order already made. 35 That is not however the end of the matter.
Whether entry of judgment completed 36 RSC O 43, r 3 provides in part: "(2) An order is sufficiently authenticated if signed by the Registrar and sealed with a seal of the Court." 37 Here, as stated, the judgment, although sealed, has not been signed by a Registrar. 38 Seaman (43.3.1) states:
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"Even if an order has been made entitling a party to enter judgment, there is no judgment until it has been authenticated in accordance with the rules: Re Gurney [1896] 2 Ch 863 at 864, 865; Nixon v W Phelan & Son Pty Ltd [1960] VR 94 at 96; Gamble v Killingsworth & McLean Publishing Co Pty Ltd [1970] VR 161 at 168." 39 Further, in Norman v Norman (1992) 6 WAR 372 at 376 Murray J observed that proceedings of the Court were not disposed of by the making of an order by a Judge or by his or her recording of it, but the order had to be put in a form in which it could be extracted, and it was "the order reduced to that form and authenticated, which under (RSC) O 43, r 4(1) is required to be kept in the Registry as the record of the Court in a final form". 40 Given the above it appears that RSC O 2, r 1, which deals with irregularity, ultimately has no role to play, and that the position is, as a matter of law, that there is no properly authenticated judgment held in the Registry and therefore no valid default judgment so that the judgment ought be disregarded, and the matter treated as being still on foot. 41 The purported default judgment here ought therefore be set aside.
Extension of time 42 The defendant's application then becomes one simply to extend time for compliance with the original order for the defendant to provide discovery on oath. 43 No enquiry as to whether or not there is a good defence on the merits is involved on a consideration of that application. 44 In the circumstances here, which as stated include the making of the springing order in the absence of the defendant, the subsequent service of the standard case management summons which advised of a further hearing day as to discovery, the defendant's provision of a form of discovery on that day, albeit not in accordance with the relevant rule, in the absence of any consent to unsworn discovery, but with the defendant acting in person, and the events which followed all being coloured by an erroneous assumption as to the existence of a valid default judgment, I am of the view that time ought be extended to the date when discovery was validly provided.
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45 In the light of the above it is not necessary to decide what the position would have been had the judgment been properly authenticated.
46 However, it is appropriate to make some comment. 47 In ACN 076 676 438 Pty Ltd (In Liq) & Anor v A-Comms Teledata Pty Ltd & Anor [2000] WASC 214 Parker J set aside an interlocutory judgment in default of defence that had been founded on a purported amended statement of claim which had not been regularly filed or served. 48 In the course of so doing the learned Judge stated the following [par 17-18]: "17 It has been long established that where a judgment in default has been entered irregularly, ie without proper compliance with the Rules, or has been obtained in breach of good faith, it will be set aside; Hughes v Justin [1894] 1 QB 667; Alliance Acceptance Co Ltd v Makas (1976) 12 ACTR 19; Daly v Silley [1960] VR 353. In such a case the Court is not obliged to enquire whether or not there is a good defence on the merits; Anlaby v Praetorius (1888) 20 QBD 764; Alexander v Ajax Insurance Co Ltd [1956] VLR 436; White v Weston [1968] 2 QB 647; Daly v Silley (supra); Acclaim Holdings Pty Ltd v Vlado [1989] 1 WAR 128. The authorities recognise that in some circumstances those statements are to be qualified, as where the irregularity has been waived or results from an accidental omission which can be corrected, eg as to the precise amount for which the judgment is entered; Bank of Credit and Commerce International (Overseas) Ltd (in liq) v Habib Bank Ltd [1998] 4 All ER 753; City Mutual Life Assurance Society Ltd v Giannarelli [1977] VR 463. Neither of those circumstances have application in the present case. 18 Some more recent decisions suggest that not every irregularity in the means by which a judgment in default is obtained will necessarily entitle the defendants to have the judgment set aside as of right. I was referred in particular to Australian and New Zealand Banking Group Ltd v Kostovski, unreported; SCt of Vic (Chernov J); No 5511 of 1997; 2 July 1997, (BC 97032660) where the
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writ contained two endorsements which breached the Rules and Commonwealth Bank of Australia v Buffett (1993) 114 ALR 245 where the writ had an incorrect endorsement as to service and stated that an appearance must be entered within 8 rather than 9 days of service. In both of these cases the writ was issued out of the Registry and served. In each case, the irregularity had not caused any prejudice to the defendant and did not lead to the defendant changing his position in any way or otherwise cause any injustice. In such circumstances the judgments were not set aside. In National Australia Bank Ltd v Meehan, unreported; SCt of Vic Appeal Division (Ormiston and O'Bryan JJ); No 8407 of 1993; 24 February 1994; (BC 9400980), the absence of the number of the proceeding from the service copy of the originating process was held to be merely a technical defect not producing an irregular judgment, although in contrast in Sargent v Veneris, unreported; SCt of Vic (Beach J); No 1303/1995; 20 December 1995; (BC 9507179) a failure to duly prove service of the originating process by omitting to exhibit a sealed copy of that process to the affidavit of service was held to be an irregularity which entitled the defendant to have the default judgment set aside. I was also referred to the observations of the Court of Appeal in Perry v Wong [1997] 1 WLR 381 at 388 that, in this context, procedural irregularities vary greatly in significance and the discussion in Farrow Mortgage Services Pty Ltd (in liq) v Victor Tunevitsch Pty Ltd & Ors, unreported; SCt of Tas (Crawford J); No 1383 of 1993; 8 July 1994; (BC 9400421) at 4." 49 The service on the defendant of a summons for directions in relation to discovery after service of a springing order for discovery, and in apparent contradiction to the same was in my view an irregularity. 50 As appears, the summons was apt to mislead and in the circumstances it had that effect. 51 For that reason also I consider that had the judgment been regular the defendant would have been entitled to have it set aside ex debito justitiae.
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52 In the circumstances it is not necessary for me to discuss the failure to include the counterclaim within the order for discovery, other than to observe that if, as would seem to be the case, no res judicata or issue estoppel would arise from a default judgment validly obtained in the circumstances here, then issues raised in the defence, and repeated and adopted by the counterclaim, would necessarily be considered and determined at the trial of the counterclaim, with the potential for there to be an outcome which would be, whole or in part, contradictory to the default judgment.
Conclusion 53 As stated, the appeal is allowed. 54 The course this matter has taken, for whatever reason or reasons, is unfortunate, and there is in my view a need for early determination of the proceedings. 55 To that end I will hear the parties as to whether or not it would be appropriate to make directions with a view to that being achieved. |