Idameneo (No 123) Pty Limited v Fox (No. 1) [2014] NSWDC 208

District Court New South Wales

Medium Neutral Citation: Idameneo (No 123) Pty Limited v Fox (No. 1) [2014] NSWDC 208 Decision date: 11 November 2014 Before: Neilson DCJ Decision: Application refused Catchwords: INTERLOCUTORY - Application for adjournment - Defendant admitted liability but sought adjournment to obtain legal advice in relation to damages - Defendant conceded inability to satisfy any judgment debt - Adjournment futile - Neither just, nor quick, nor cheap Legislation Cited: Civil Procedure Act 2005 (NSW) Category: Interlocutory applications Parties: Idameneo (No 123) Pty Limited (Plaintiff) David Anthony Fox (Defendant) Representation: Mr G Lucarelli (Plaintiff) In person (Defendant) File Number(s): 2014/185935 Publication restriction: No

Judgment 1HIS HONOUR: This is an application for an adjournment. The statement of claim was filed on 23 June 2014. The statement of claim was served personally on the defendant on 28 June 2014. Under the Rules, the plaintiff was required to file a defence within 28 days of service of the statement of claim upon him. That 28 days expired on 26 July 2014. The plaintiff did not seek default judgment instanter but delayed for almost a further two months. 2On 29 September 2014 the plaintiff filed a notice of motion seeking default judgment for unliquidated damages. The plaintiff's solicitor sent to the defendant by email on that day at 6.23pm a copy of the notice of motion seeking default judgment for unliquidated damages and the documents which accompanied that application, in particular, the affidavit of service of the statement of claim. There is no suggestion that the defendant was unaware of the application for default judgment. It was open to the Registrar to enter default judgment on the following day, 30 September 2014. 3On 8 October 2014 Mr John Lyons, acting as an agent for the defendant, sent an email to the plaintiff's solicitor in which Mr Lyons stated: "We intend to file a defence in respect of the notice of motion for a default judgment against our client". Further, in the email the following is stated: "We respectfully request that you respond prior to the close of business 5pm Friday 10 October, and will use this correspondence as evidence in any approach to the Court for relief in an ex parte or other application for injunctive relief." 4The same email goes on to state that the plaintiff acknowledged service of the statement of claim upon him. The same email clearly indicates that the defendant drew to the attention of Mr Lyons the notice of motion seeking default judgment for unliquidated damages. The email was sent at 5.16pm. Coincidentally, the Registrar entered default judgment against the defendant on the following day, 9 October 2014. Judgment was for the plaintiff against the defendant for damages to be assessed. The Registrar also made an order that the defendant pay the plaintiff's costs. 5On the same day, 9 October 2014, the Registrar wrote to the defendant, advising him of the orders which he had made and also advising the defendant that the matter was listed for an assessment hearing today, 11 November 2014, commencing at 10am. The plaintiff's solicitor has also served on the defendant a copy of the evidence on which the plaintiff relies as it became available and, in some circumstances, before an affidavit was attested. The matter came before me this morning. When the matter commenced I had the defendant called three times outside the Court but there was no attendance by or on his behalf. I then commenced the hearing of the assessment of damages. 6An affidavit of Timothy Ruer sworn 5 November 2014 was marked as exhibit A; a folder of documents, being the annexures to Mr Ruer's affidavit, was marked exhibit B; an affidavit of Fiona Joan Ward sworn 6 November 2014 was admitted as exhibit C; an affidavit of Mr G C A Gower sworn on 10 November 2014 was marked as exhibit D; and the annexures to Mr Gower's affidavit were marked as exhibit E. I received from the plaintiff a chronology which I marked for identification 1 and the plaintiff's written submissions which I marked for identification 2. Mr Lucarelli for the plaintiff then commenced to assist me by pointing out the salient parts of the evidence relied upon by the plaintiff. 7My notes indicate that Mr Fox, the defendant, appeared in person at 11am. At the close of the plaintiff's case, Mr Fox handed to me a document which has been marked for identification 4. In essence, the document seeks an adjournment for six weeks to enable Mr Fox to locate a solicitor to advise him about the current matter at a fee that he is able to afford and in order to enable him to explore further an application to be readmitted as a medical practitioner. 8The document states that, if he were to become a bankrupt, he would be unable to practise as a medical practitioner. However, I am unaware of any such prohibition and it was then conceded, after I sought to consult the appropriate legislation, that it was not an automatic bar to being admitted as a medical practitioner. The defendant tells me that he needs to be readmitted as a medical practitioner in order to earn income with which to satisfy his indebtedness to the plaintiff. 9In oral submissions the defendant advised me that he had been advised by a solicitor who had previously acted for him in proceedings in the Medical Tribunal that obstacles to his being readmitted to practise as a medical practitioner were his age and that he might be bankrupted, but the latter falls away when one considers that there is no prohibition against a medical practitioner being a bankrupt. Indeed, since some legal practitioners can practise when bankrupted, it would strike me as being amazingly inconsistent for Parliament to stop a person working, for example, as an employee of a medical practice or in government service as a medical practitioner because an inability to manage one's financial affairs is hardly relevant to the ability of a suitably qualified person to practice as a medical practitioner. 10The defendant admits that he has no defence to the liability aspect of the plaintiff's claim. The defendant could only, by an adjournment, seek to reduce the quantum of the plaintiff's claim and, in his written document, states that he might need to seek legal aid or pro bono representation. Considering that he has no defence to the plaintiff's claim on the question of liability, his only recourse will be to dispute the quantum of the plaintiff's case and it may be extremely difficult in such circumstances to obtain a grant of legal aid or, indeed, pro bono representation. 11In any event, the defendant clearly states that he has no assets with which to satisfy the judgment sought by the plaintiff and, accordingly, allowing him an adjournment to see if he has some defence to the quantum of the plaintiff's claim which he can not satisfy would, as has been submitted by the plaintiff's counsel, be an exercise in futility. This case has run its proper legal course. 12The defendant was clearly in default as from 26 July 2014. Under the Uniform Civil Procedure Rules it is not necessary for the plaintiff to advise a defendant in default of an application by the plaintiff to obtain default judgment. Nevertheless, the case law makes it clear that a plaintiff who applies for default judgment ought give prior notice of that application to the defendant. The present plaintiff did so. The present defendant delayed and could have, at any time between 29 September 2014 and 9 October 2014, a period of over a week, filed a defence thereby negating the plaintiff's application for default judgment. 13Everything has been done regularly. There is no application made by the defendant to set aside the default judgment, which could only be done by way of a notice of motion which the defendant has not sought to file. I am required by statute, namely, the Civil Procedure Act 2005 s 56, to give effect to the overriding purpose of the Civil Procedure Act and the Uniform Civil Procedure Rules which is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. I am afraid that adjourning the current matter when I am in a position to assess the plaintiff's damages would not be either quick or cheap or, in the circumstances of this case considering the evidence that I have heard, just. The application for adjournment is accordingly refused.