Adrian Aldous v State of New South Wales [2013] NSWSC 2046

Supreme Court New South Wales

Medium Neutral Citation: Adrian Aldous v State of New South Wales [2013] NSWSC 2046 Hearing dates: 28 June 2013 Decision date: 28 June 2013 Jurisdiction: Common Law Before: Rothman J Decision: (1)The motion, notice of which was filed 21 June 2013 for the dismissal of proceedings, be dismissed; (2)As to the Summons commencing an appeal purportedly filed in the Common Law Division on 14 May 2013 that matter is transferred to the Court of Appeal and treated, subject to the directions of the Registrar of the Court of Appeal, as the commencement of the proceedings in the Court of Appeal; (3)The defendant's costs thrown away by the filing in the wrong division, including the costs of the motion to transfer the matter be paid by the plaintiff; (4)Court grants a stay of the order of Delaney J; (5)The stay is granted for only a period of two months' and will be heard before the Court of Appeal; (6)Costs of this motion will be costs on the appeal. Catchwords: PROCEDURAL MATTERS - enforcement of default judgment - stay of the order Legislation Cited: Tax Administration Act 1996 (NSW) Category: Interlocutory applications Parties: Adrian Aldous (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: Self-represented (Plaintiff) J. Hyde (Defendant) Solicitors: File Number(s): 2013/149782 Publication restriction: None

EX TEMPORE Judgment 1HIS HONOUR: On 6 February 2013, his Honour Delaney J of the District Court of New South Wales issued judgment and reasons for judgment dealing with a claim by the New South Wales Police Force in the name of the State of New South Wales against the defendant, Adrian Aldous. 2The claim arises out of the payment of disability entitlements for injuries sustained by Mr Aldous during the course of his employment as a police officer. 3It is unnecessary to recite all of the details, and frankly, all of the details are not before the Court as presently constituted. It is sufficient for present purposes to state that, on or about 25 July 2007, Mr Aldous was paid an amount of $434,957.88 being an amount for what I will refer to as a temporary disability payment pursuant to the Crown Employees (Police Officers Death and Disability) Award 2005. In order to obtain that amount Mr Aldous signed a deed or undertaking to repay dated 25 July 2007. Clause 3 of that deed is in the following terms: "3. The Recipient, both personally and on behalf of his or her estate and lawful assigns, hereby: (a) undertakes, and (b) irrevocably authorises Metlife Insurance Limited, to notify NSW Police Force that the Recipient (or his or her estate) has subsequently become eligible to receive or has received benefits pursuant to clause 7 or clause 8 of the Award (for an 'off duty' or an 'on duty' death or total and permanent disablement), - in the case of the Recipient (including his/her estate or lawful assigns) with 14 days of becoming aware of such eligibility, - in the case of Metlife Insurance Limited as soon as practicable. And that such notification is to include information as to any approval or authorisation given in relation to payment pursuant to clause 7 or clause 8 of the Award, including: (i) the amount to be or which has been paid and (ii) the date on which the amount is to be or has been paid to the Recipient (or his/her estate) And to that end, and also to facilitate deduction and remittal under clause 1(a) above, the Recipient hereby irrevocably consents and authorises and permits NSW Police Force to provide information to Metlife Insurance Limited in respect of the receipt, by the Recipient, of the amounts, paid pursuant to clause 9 of the Award." 4The amount aforesaid was reduced in terms of the amount actually paid to Mr Aldous by an amount required to be withheld pursuant to the Tax Administration Act 1996. 5On or about 20 May 2009, Mr Aldous received a payment pursuant to the same award for total and permanent disability, being an amount of $633,488. On 1 April 2010, the State of New South Wales issued a statement of claim seeking the repayment of what I have called the temporary disability payment of approximately $400,000. Mr Aldous filed a defence to those proceedings, having in 2009 repaid in lots of $20,000, it seems, the amount of, or something close to, $100,000. 6In the judgment Delaney J of 6 February 2013, his Honour struck out the defence that had been filed by Mr Aldous and issued default judgment in favour of the State of New South Wales. 7On 14 May 2013, Mr Aldous, or solicitors then acting for him, filed a summons in the Common Law Division seeking leave to appeal the judgment of Delaney J, to which reference has been made. That summons seeks leave for an extension of time to commence the appeal, leave to appeal if required, and an appeal on a number of bases. I do not recite each of the bases upon which Mr Aldous relies. 8Essentially, Mr Aldous claims that the pleading defects to which Delaney J referred and upon which basis he struck out the defence were curable defects, as a consequence of which his Honour ought not to have exercised his discretion to grant default judgment or, indeed, to strike out the pleadings but allow an amendment thereto. Reliance is also placed upon the fact that Mr Aldous, at that stage and before the Court presently, was acting in a manner that was self-represented. 9As to the matter generally, orders have already been made for the transfer of the proceedings to the Court of Appeal and for the summons commencing the appeal to be taken as a summons commencing an appeal or an application for leave to appeal in the Court of Appeal. It may be that the Registrar will make further directions as to appropriate documents. I make no comment about that one way or the other. 10However, the matter before me currently is a motion for a stay of the enforcement of the judgment. 11In simple terms, and without dealing with the legalities of the issue, Mr Aldous says that when he received the second amount, to which I have referred above, he had understood pursuant to the terms of the deed that he had signed, to the extent that he understood the deed at all, that the amount he received was an amount net of the earlier amount for temporary disablement. As a consequence of which he has spent some or all of the money that is now sought to be repaid. 12How that money was spent in one sense is irrelevant, but the lack of understanding of the deed in its entirety, Mr Aldous says, was brought about, first, by the illness of which the State of New South Wales knew or ought to have known; secondly, by the fact that he was, notwithstanding the terms of the deed, not advised legally at the time that the deed was signed; and, thirdly, his mental state and the medication upon which he was then being placed was such that he had no understanding of the details of the deed that he was signing. 13On one view of the terms of clause 3, as they are written, they certainly give, or could give to a lay person, an impression that the amount for total disability, when received would be an amount after the deduction or repayment of the amount already received for temporary disability. 14The issues raised before Delaney J, without comment on the way in which they were pleaded, seem to raise issues as to the capacity to enforce the deed relating to a special disability then suffered by Mr Aldous; that is questions of unconscionability under the general law. On one view, this gives rise to a factual assertion that, at least arguably, may amount to an argument which, while it could give rise to a cross-claim, could also be used as a defence to the proceedings for recovery. 15In any event, it seems to me that the grounds raised in the appeal are not totally unarguable and point to the proposition that Delaney J may have been too hasty in striking out the defence in whole and issuing default judgment without giving Mr Aldous an opportunity of defending the matter and pleading the defence properly. 16In all the circumstances, I consider there is an arguable case. I do not, by that, suggest that it is more probable than not that the case will succeed on appeal. 17As to the balance of convenience, I accept that the State of New South Wales is in a position of being able to repay any moneys that were paid to it. Nevertheless, the issue before me goes beyond that. Mr Aldous is plainly a person who is without means to repay the money. The non-payment of it pursuant to the orders, if not stayed, may give rise to some problems with having the appeal processed and in all of the circumstances it does not seem to me that a stay would prejudice the State of New South Wales. That is, they will be in as good or bad a position to obtain the money at the end of the appeal process than they would be now. 18For those reasons I grant a stay of the order of Delaney J. 19I grant that stay only for a period of two months to allow the Court of Appeal to deal with it on a more complete basis and allow the matter to come for directions before the Registrar and the matter be the subject of proper evidence. I do not mean by that that the evidence here is improper, only that, because of the state of the list and the lack of notice to the Court of the proceedings, I am not fully informed on all of the facts of the matter and the issues as they arose before Delaney J. 20The costs of this motion will be costs on the appeal.