Ward v Monger House Pty Ltd - [2012] WADC 161

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: BUNBURY

CITATION: WARD -v- MONGER HOUSE PTY LTD [2012] WADC 161

CORAM: FENBURY DCJ

HEARD: 31 OCTOBER 2012

DELIVERED : 16 NOVEMBER 2012

FILE NO/S: BUN CIV 31 of 2010

BETWEEN: ROBERT PRESTON WARD
Plaintiff
AND
MONGER HOUSE PTY LTD
First Defendant
TREVOR JOHN BUTLER T/A GUTTERSHIELD AUSTRALIA
Second Defendant

Catchwords:

Negligence - Personal injuries - Default judgment for plaintiff - Application to set aside - Whether delay explicable - Whether irreparable prejudice to plaintiff if judgment set aside - Whether prima facie defence on merits - Turns on own facts

Legislation:

Nil

Result:

Judgment set aside

Representation:

Counsel:

Plaintiff:     Mr N Ekanayake
First Defendant             :     No appearance
Second Defendant         :     Mr M S Barrett-Lennard

Solicitors:

Plaintiff:     Michael J Joubert
First Defendant             :     Not applicable
Second Defendant         :     Barrett-Lennard & Co

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

Nil

FENBURY DCJ: This is an application by Mr Butler, the second defendant, to set aside a default judgment entered under O 22 r 3(1) of the Rules of the Supreme Court 1971. The plaintiff Mr Ward's claim was for unliquidated damages for personal injury. Mr Butler having been served with a Bunbury District Court writ of summons indorsed with a statement of claim and having entered a memorandum of appearance, failed to file a defence within the prescribed time.
By O 22 r 10:
The Court may, on such terms as it thinks just, set aside or vary any judgment entered in pursuance of this Order.
Thus the court has a discretion to set aside the judgment and it is unfettered.

Brief history

On 17 May 2005 Mr Ward was struck on the back of the neck by a sheet of corrugated roofing that had blown or been thrown from a nearby roof. He was quite seriously injured. He has sought damages from the occupier of the building and also from Mr Butler who was an independent roofing contractor engaged to replace its roof.
During the five and a half year period after the incident, and before the writ was issued, an investigation was carried out by WorkSafe. However, no claim nor notice of claim was made. According to counsel from the bar table, Mr Butler made no claim on an insurance policy that he then had. Again, according to counsel from the bar table, the insurance company with whom Mr Butler had that policy has since ceased business. Consequently Mr Butler is not covered by any insurance.
The fact that Mr Butler had or did not have insurance is not a material factor in this matter save that it may bear upon the question of whether Mr Butler intended to defend the proceedings. There is other evidence that seems to me to establish that issue and I shall shortly refer to it.
The writ and indorsed statement of claim was served on Mr Butler on 17 January 2011, in the street, and apparently by arrangement.
Mr Butler filed a memorandum of appearance on 1 February 2011.
Notably the address of Mr Butler as appears from the writ of summons was said to be Unit 1, 149 Herdsman Parade, Wembley WA 6014 (Wembley).
The address given by Mr Butler in the memorandum of appearance, being the geographical address, was 251 Morangup Road, Morangup 6083 (Morangup).
The address for service details was given as PO Box 51, Gidgegannup 6083 (Gidgegannup).
This variety of address is a significant factor in the application.
Thirteen days after filing the memorandum of appearance on 14 February 2011, Mr Butler filed a chamber summons at the District Court in Bunbury seeking an order that the action be remitted to the District Court in Perth. The chamber summons gave Mr Butler's address at Gidgegannup. It was heard and determined on 3 March 2011 by a registrar of the court. Mr Butler attended the hearing in person with counsel for the plaintiff, Mr Michael Joubert. An order was made that the action be heard in Perth.
Pausing there, it is to be noted that counsel for the plaintiff must have appreciated Mr Butler was unrepresented, and that he had evinced an intention to engage in and defend the proceedings. The summons was supported by an affidavit sworn 10 February 2011 which set out the basis of the application. Paragraphs 4, 5 and 7 of Mr Butler's affidavit of 10 February 2011 in support of the change of venue summons were in the following terms:
4.Additionally the occupants of the premises at which the plaintiff was injured are essential witnesses as the right for the plaintiff to be on the premises at the time, and his lawful status thereon at the time will be an issue, and as those other occupants will provide evidence as to the warnings and notices and physical barriers present at the time of the incident.
5.Further, all relevant records are held in Perth and these will be important – they constitute medical records, WorkSafe investigations, tenancy records and my own work and job records. Perusing, inspection, production under order of all these is far more practicable to be effected in Perth.
I estimate that the witnesses which will reasonably be required for the hearing of the trial of this action are as follows, and their place of residence/employment is as follows: (see a list of witnesses is provided).
…
7.In the circumstances and on the balance of convenience of the many witnesses and defendants, and of the production, inspection and any orders as to document production from medical WorkSafe and tenancy records, I say it would be unduly onerous on these many people and the defendants to continue the action in Bunbury, and accordingly I seek that the action be remitted wholly to the Perth Court for further hearing.
The affidavit also contained Mr Butler's Gidgegannup address and in addition his Morangup address.
Order 20 r 4 of the Rules of the Supreme Court obliges Mr Butler to 'serve a defence on the plaintiff before the expiration of 14 days after the time limited for appearing or after the Statement of Claim is served on him, whichever is the later'.
As the statement of claim was indorsed then the relevant reference point seems to me to be 'the time limited for appearing'.
The writ was served on 17 January 2011 and on its face it stated that appearance must be entered within 30 days. This time limit may well have been more generous than necessary because the writ was served in Perth, although it was issued in the Bunbury District Court. Be that as it may by reference to the date specified on the writ, an appearance had to be entered by 16 February 2011.
The appearance was entered on 14 February 2011.
It seems to me that by reference to O 20 r 4 the defence had to be served by 14 days after 16 February 2011 which is 2 March 2011.
Thus it was that the hearing before the registrar relating to Mr Butler's change of venue application, during which he dealt with Mr Joubert, and had appropriate interactions with Mr Joubert, occurred in circumstances where the time within which Mr Butler was obliged to file his defence had already expired.
On 11 March 2011, from the court's file, a notice was sent to Mr Butler advising him that the action had been listed for a listing conference on 4 April 2011 at 11.00 am at the Perth District Court in Hay Street, Perth.
In spite of the Morangup and Gidgegannup addresses on the memorandum of appearance filed by Mr Butler and repeated in his chamber summons supported by the affidavit to which I have mentioned, the notice about the listing conference was copied to Mr Butler at Wembley, being the address that appeared on the face of the writ.
Mr Butler did not receive this notice and therefore did not appear. Apparently the conference should not have been set in any event.
On 7 April 2011 the first defendant filed a defence in the registry, District Court, Perth.
On 8 April 2011 the default judgment was entered against Mr Butler at the registry District Court Bunbury. The document was filed by Mr Joubert.
It is common ground that Mr Joubert neither advised Mr Butler of the entry of the default judgment nor of any intention prior thereto to do so.
Thereafter the plaintiff pursued his action against the first defendant requesting further and better particulars of the first defendant's defence on 5 July 2011 (District Court Bunbury) and filing and serving a schedule of damages seeking a sum of the order of $600,000.
The first defendant amended its defence on 9 August 2011 and on the same date filed answers to the request for particulars.
The plaintiff filed a list of documents supported by an affidavit on 6 September 2011.
On 19 September 2011 the plaintiff filed a request for discovery from the first defendant.
On 29 September 2011 the first defendant filed a notice of contribution from the first defendant to the second defendant referring to the Wembley address (not received).
On 4 October 2011 the plaintiff applied for an order that certain documents including WorkSafe documents be subpoenaed.
On 4 October 2011 Mr Joubert on behalf of the plaintiff issued a chamber summons for orders for the production of documents.
On 13 October 2011 at the registry office in Bunbury Mr Joubert, on behalf of the plaintiff, filed an entry for trial setting out non‑available dates for a pre‑trial conference and the like. This document contained a reference to Mr Butler but, on this occasion, it was sent to the Gidgegannup address.
Mr Butler received this entry for trial notice. This was the first communication he had received from anybody, apparently, since the hearing of his change of venue application on 3 March 2011 seven months before. It is unclear when Mr Butler received this document. The entry does not require Mr Butler to do anything. On its face it did not indicate anything about the fact that judgment in respect of the plaintiff's claim against Mr Butler had already been entered. It cannot be said that there was anything in the entry for trial which of itself should have brought a reaction from Mr Butler.
The court then wrote to the parties on 25 October 2011 advising of the listing of a pre‑trial conference on 17 January 2012 in Perth. This document, again, was sent to Mr Butler at Wembley. He did not receive it.
Unsurprisingly Mr Butler did not appear at the pre‑trial conference in January.
At that conference a listing conference was ordered to take place on 27 February 2012. Unsurprisingly Mr Butler was oblivious to it.
That listing conference was again adjourned to 4 April 2012. On that date orders were made that there be a trial on the issue of liability as between the plaintiff and the first defendant and for an assessment of damages as between the plaintiff and Mr Butler. The matter was listed for trial for 24, 25 and 26 July 2012. A directions hearing was fixed for 13 June 2012.
Not knowing about it, Mr Butler was not at this conference either.
On 7 May 2012 the plaintiff's claim against the first defendant was compromised. By consent orders the claim against the first defendant was dismissed with no order as to costs.
On 13 June 2012, this being a special directions hearing, counsel for the plaintiff, Mr Clyne, advised that Mr Butler was 'not playing any part in the proceedings' and therefore that the trial would not take three days but only one day. He made proposals about how the trial should be managed. Again, not knowing about it Mr Butler was not present during this hearing. The matter was listed for 24, 25 and 26 July 2012.
On 5 July 2012 Ms K Woods, listings coordinator at the District Court Perth, wrote to the parties referring to the listing of the matter for an assessment of damages before a judge on 24 July 2012 and advising that a directions hearing had been set. Copies of the letter were sent to Mr Butler at Gidgegannup and Morangup. I pause there to observe that Mr Butler received these documents and they plainly jerked him into action.
On 13 July 2012 a hearing took place before Principal Registrar Gething. Counsel for the plaintiff, Mr Clyne, was in attendance. Mr Butler was also in attendance. The trial date was vacated and orders made to enable Mr Butler to file the application to set aside the default judgment, and to file an affidavit in support and so on.
The chamber summons to set aside the default judgment was filed at the registry in Perth on 26 July 2012. It was listed to be heard before the registrar in chambers on 13 August 2012. Mr Clyne again appeared and Mr Butler appeared in person, unrepresented. Mr Butler's chamber summons was supported by an affidavit that he swore dated 26 July 2012 containing just over four pages and 28 paragraphs.
On 15 August 2012 the hearing was adjourned to a special appointment before a judge in chambers in Perth.

Observations

The main theme of Mr Butler's application to set aside the judgment is that he was oblivious to judgment in default having been entered against him. Given the variety of addresses utilised by the court both in Bunbury and in Perth, and by Mr Joubert, it does not seem to me to be implausible that Mr Butler was as ignorant as he says.
It is true that in the writ served upon Mr Butler in January 2011 the following appears:
Note; if the defendant enters an appearance, then unless a summons for judgment is served on him in the meantime, he must also file a defence at the District Court Registry at Bunbury and serve such defence on the solicitor for the plaintiff, within 14 days after the last day of the time limited for entering an appearance, otherwise judgment may be entered against him without notice.
The question arises whether Mr Butler read that paragraph and if he did whether he understood it. In pondering that issue it is noted that, self‑represented, he filed a memorandum of appearance to the writ and then 13 days later filed a chamber summons supported by an affidavit and sought and obtained a change of venue to Perth.
Mr Butler's explanation for not having filed a defence is that he did not understand that he had to do so, but more significantly he had been led to believe, he says, that Mr Joubert would be communicating with him further about the matter, and was going to provide something in the nature of medical documentation.

The legal requirements

A person in Mr Butler's situation being a defendant to an action who has a judgment in default of filing a defence entered against him, must establish a number of things before he can succeed in setting aside that judgment.
Mr Butler must give a satisfactory explanation for failing to file a defence.
He must establish that there has been no unreasonable delay in making the application.
He must demonstrate that he has a prima facie defence on the merits or, perhaps another way of putting it, that judgment for the plaintiff on liability was not a correct result.
In considering these matters the court needs to inquire whether irreparable prejudice would be done to the plaintiff if the judgment was set aside.
I note that delay in making an application is not fatal in itself but it is a factor to be taken into account in the exercise of discretion. I note that it is not often a defendant, who has an apparently good ground of defence, will be refused the opportunity of defending even though the delay is lengthy, provided that no irreparable prejudice is done to the plaintiff.
I also note that failure to warn Mr Butler before entering judgment in default of defence did not make the entry of the judgment irregular. Further, the fact that Mr Butler was not represented does not make it irregular. However the circumstances in which judgment was entered are relevant to the exercise of discretion. These circumstances seem to me to be as follows:
1.Mr Joubert, counsel and solicitor for the plaintiff, at relevant times, in my view must have known Mr Butler wanted to and intended to defend the claim.
2.It appears to be the case that following the hearing of the change of venue application on 3 March 2011, at which Mr Butler and Mr Joubert were in attendance, Mr Butler received no correspondence from anybody until the entry for trial of the assessment of damages on about 13 October 2011. As I have mentioned that entry contained no relevant information that should have alerted Mr Butler to what had occurred.
In my view, clearly, Mr Butler was unaware of what was happening in the matter after the change of venue application in early March 2011. He was not advised of the matter at either of the addresses provided in his memorandum of appearance. Given the passage of time before the proceedings were commenced, it would not have been so surprising, from Mr Butler's point of view, that months went by without his receiving any communications about the action.
I accept that he expected to hear from Mr Joubert after the hearing and I accept that he heard nothing at all.
In my view, given Mr Butler's evidenced intention to defend, and the obvious fact that he was representing himself, with the equally obvious fact he was personally exposed to any adverse judgment, he should have been advised of the entry of the judgment by default. The fact that the default judgment against him was entered the day after the first defendant filed the defence and more than a month after the time for filing a defence had expired suggests the file had been relatively inactive for a while. As I have said there was no legal obligation to let Mr Butler know the situation. But I think he should have been informed.
I also feel it is very unfortunate that no or little reliance was placed by anybody, including this court, upon the addresses that Mr Butler provided in his memorandum of appearance. It was regrettable that there was a repeated reliance on the address on the face of the writ, that not being the place where Mr Butler had been served.
The writ did inform Mr Butler that if he entered an appearance (assuming he knew that meant file the document by that name) then he must also file and serve a defence within 14 days of the last date for entry of that appearance. As I have indicated Mr Butler was served on 17 January 2011 and he filed his appearance on 1 February 2011 which was within time.
Thirteen days later on 14 February 2011, Mr Butler filed his chamber summons and affidavit to change venue. That summons was dated 10 February and the hearing was listed for 3 March. As I have mentioned that hearing was the day after the time for filing the defence had expired.
In my view a satisfactory explanation for failing to file a defence has been established. I do not think there has been any unreasonable delay in making the application to set aside the judgment in spite of the passage of time. As soon as Mr Butler was aware of the problem he has done his best to resolve it.
I turn to the question of whether irreparable prejudice would be done to the plaintiff should the judgment be set aside. As I have observed, some five and a half years passed after the plaintiff was injured before he commenced the proceedings. Further, about five weeks passed after the last day for the filing of a defence before judgment was entered in default. This is a leisurely pace for litigation, I think, and is a relevant factor in considering the question of irreparable prejudice. The memories of witnesses must have already significantly faded before the writ was issued. The fact that witnesses would need to be remarshalled and reproofed, having been informed, if they were, that they would not be required, is not, in the circumstances, irreparable prejudice in my view.
Further, there was to be a trial of the issue of assessment of damages. Given Mr Butler seems to concede the relevant incident occurred to the plaintiff, no irreparable prejudice seems to me to exist in the considerations so far. As I have mentioned the plaintiff's claim against the first defendant was compromised. On 7 May 2012 by consent it was ordered that the plaintiff's claim against the first-named defendant be dismissed with no order as to costs.

The court was not provided the details about the compromise save to say that Mr Barrett‑Lennard, counsel for Mr Butler, obliquely referred to the existence of there being more to the compromise than mere dismissal with no costs.
The first defendant was a registered and incorporated company and alleged in the statement of claim to be the owner of the premises at 234 Beaufort Street, Highgate which was being re‑roofed by the second defendant.
The claim against the first defendant was based upon its alleged liability as an occupier.
Given the lack of controversy about the fact that the plaintiff was injured by a flying sheet of corrugated roofing that came detached during Mr Butler's firm's workings upon the roof of the building it is difficult to see significant prejudice to the plaintiff should Mr Butler be given leave to defend the action.
The loss of the judgment is of course prejudicial, but the plaintiff might succeed at trial. There is no irreparable prejudice there it seems to me.
I am aware of course that the plaintiff has settled the action with the first defendant. That fact is said to establish irreparable prejudice if the judgment against the second defendant Mr Butler is set aside. I have difficulty in accepting this submission. I do not know how it can be irreparably prejudicial to a plaintiff to have the default judgment of negligence and breach of duty of care against one defendant set aside and that defendant being given leave to defend in circumstances where the plaintiff has settled his action with another defendant against whom its claim was put as an occupier.
Presumably, in settling the action against the first defendant, the plaintiff obtained terms satisfactory to it. That compromise is discrete and presumably would not be affected by the judgment against Mr Butler being set aside. Alternatively, the plaintiff's case against the first defendant was weak or perhaps accepted by the plaintiff to be not worthy of pursuit for other reasons. I do not however see that there would be irreparable prejudice to the plaintiff in the circumstances.
I turn to the question of whether Mr Butler has a prima facie defence on the merits. It does not appear, thus far, that he is seeking to raise a complete defence to the plaintiff's claim for breach of duty of care. If he was, and that was the only issue, Mr Butler would seem to me to have difficulty on the issue because the fact the roofing sheet either blew off the roof or was thrown off might well suggest a breach of duty of care on his part.
What Mr Butler seems far more vigorously to be asserting is an issue of contributory negligence. He says he was guarding the only entrance to the property to prevent access to the area where the sheet fell and that nobody got past him. Mr Butler asserts that the fact that the plaintiff was in that area therefore strongly suggests that he had entered the area without authority and was a trespasser.
A court is not required to form a provisional view as to probable findings of fact at trial. What is required is that it must appear from the affidavit material before the court that Mr Butler's case is not inherently incredible and that if his evidence and that of his witnesses were accepted at trial, he would have a real prospect of success which here means a prospect of establishing some fault on the part of the plaintiff.
In my view Mr Butler has a defence on the merits to that extent at least. I am minded to grant the application and give Mr Butler leave to defend the action.
In the chamber summons Mr Butler seeks a total of nine orders. Counsel might consider filing a minute of agreed orders.