Watt v Shepherd [2021] FCA 561

FEDERAL COURT OF AUSTRALIA

Watt v Shepherd [2021] FCA 561 File number: NSD 922 of 2019

Judgment of: RARES J

Date of judgment: 20 May 2021

Catchwords: PRACTICE AND PROCEDURE – default judgment under r 5.23 of Federal Court Rules 2011 – where respondents in default of Court orders – where respondents sought third extension of time to serve evidence and leave to amend cross-claim – where respondents' default and application for leave not properly explained – where amendments added new claims and new parties to cross-claim – where subject of amended claims known to respondents from inception of litigation – whether granting extension of time and leave to amend would delay hearing – whether respondents would suffer prejudice if extension and leave not granted– whether overarching purpose of Federal Court of Australia Act 1976 (Cth) s 37M would be achieved by granting extension and leave – case management principles considered – Held: not in the interests of justice to grant extension of time or leave to amend cross-claim – defence struck out; cross-claim dismissed; default judgment entered in favour of applicants.

Legislation: Federal Court of Australia Act 1976 (Cth) ss 37M, 37N, 37P Federal Court Rules 2011 rr 1.40, 5.23, 15.10

Cases cited: Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited (2013) 250 CLR 303 Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 R v Lawrence (Stephen) [1982] AC 510 Searson v Salmon [2014] FCA 748 Speedo Holdings BV v Evans (No 2) [2011] FCA 1227 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu (2016) 332 ALR 199 WGKS v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 10 Yeo v Damos Earthmoving Pty Ltd; in the matter of Broadbeach Developments Pty Ltd (in liq) [2011] FCA 1129