0 33 r 2, 0 33 r 3 v AGC

What purported to be a response by the respondents to this direction was filed and served on 21 October, 1993. The respondents' solicitor who appeared before me had only just been retained. His is the third firm of solicitors which the respondents have engaged, in turn, in these proceedings. He conceded that there was a failure by the respondents to comply with the direction in question insofar as the demands in paragraphs 7, 9(b) to (e), 10(b) to (dj), 11(b) to (e), 13(a), 14 and 16(b) to (d) of the request for particulars had not been answered. He submitted, however, that, in relation to almost all of these demands, the applicant knew or had the means, in the form of documents in its possession, of ascertaining the facts and this was aie discretionary consideration against granting the judgment sought. However,

the allegations in the defence in respect of which particulars were directed include assertions that the admitted use by the first respondent of the second respondent's funds was a use he was entitled to make: the respondents were here required to identify, by appropriate particulars, the basis of this entitlement. Other demands require the respondents' to identify arrangements whereunder they allege that the second respondent in fact received investment moneys from others while denying the applicant's allegations that the second respondent issued certain invitations to the public to invest moneys with that respondent. The applicant does not acknowledge that it has readily available to it the information sought by the particulars and, in any event, in the circumstances of this case, it is I think important for the respondents to make clear in the respects required by the particulars they have been directed to provide, what their

In my view, the history of things leading up to the direction of 15 September, 1993 suggests that the respondents have no intention of co-operating with the Court and the applicant to get the matter ready for trial. They, and more particularly the first respondent, who is the person who controlled each of the corporate respondents until the applicant intervened and had receivers appointed pursuant to 8. 1323 the Corporations Law, have been playing for time. The inference that the respondents have no interest in coming to trial is reinforced by the last minute retainer of yet another

firm of solicitors and, more significantly, by the fact that the first respondent, using a false name, left the country on 20 August, 1993 by a subterfuge and without going through Department of Immigration departure checks. The evidence shows that on 4 November, 1993, he entered the United States on his own passport, which he kept, despite the order made in these proceedings on 29 June, 1992 requiring him to deliver it up to the Court. At an early stage of the proceedings, he falsely told the Court that he did not have this passport. There was good reason for his clandestine departure: oon 11 March, 1993 I ordered that he be jailed for a total of six months for contempt of orders made in these same proceedings. The judgment of the Full Court dismissing his appeal against these sentences was delivered on 13 August, 1993. A warrant for his arrest has been issued. Apart from the one submission I have referred to, his solicitor conceded that he could not identify anything at all in the first respondent's conduct

which would entitle him to the favourable exercise of the

discretion to keep his defence alive. There is nothing in the material before me that gives any of the other respondents any such claim either. The particulars sought relate only to the

The particulars directed to be given are of allegations made in the defence by all respondents. The consent direction of 28 May, 1993 and all subsequent directions required all respondents to provide the particulars. On the allegations in the statement of claim,

the first respondent controls each of the other four respondents; while the main case made out in the statement of claim is in respect of the conduct of the first, second and third respondents, it is alleged in the alternative that all four corporate respondents have breached various provisions of the Companies (New South Wales) Code, the Corporations Law and the Securities Industries (New South Wales) Code in respect of

the film investment business carried on by the first

The applicant's next submission is that it is unnecessary for the applicant to put before the Court evidence proving the facts necessary to make out each of the causes of action sued upon. The matter is complex and voluminous evidence will be necessary if the applicant has to do this. In the expectation that its submission here would be rejected, the applicant filed material sufficient to prove its case

(1) Where a party fails to comply with an order of the Court directing that party to take a step in the proceeding, any other party may move the Court on notice -

(b) if the party in default is a respondent - for judgment or an order against him; or

The expression "judgment" in this rule does not have the meaning given to that term by s. 4 the Federal Court of Australia Act 1976 because it is used in the rule to distinguish judicial determinations in the form of judgments from orders, i.e., other judicial determinations. The term "judgment" in its technical sense means a decision that concludes an action while an order is any other judicial determination. Qnslow v Commissioners of Inland Revenue (1890) 25 Q.B.D. 465 at 466; Opie v Opie (1951) 84 C.L.R. 362 at 372.

This rule (and other Federal Court rules which permit the making of the same orders where a respondent is in default in complying with other procedural requirements, e.g., O. 11, x. 23; O. 15, xr. 16 and 0. 16, xr. 9) differs from provisions found in the rules of other Courts which are derived from the post-Judicature Act rules of the English High Court. In certain classes of action, e.g., where the plaintiff's claim was for a liquidated demand, the rules of other Courts allowed the plaintiff to enter judgment by the ministerial act of a court official and without' the intervention of the Court; but the general rule empowered the entry of such judgment in default as the plaintiff appeared entitled to on his statement of claim. Initially there was some uncertainty as to whether on an application under English

O. 27, xr. 11 (the rule permitting judgment in default of defence), proof of the facts alleged in the statement of claim was required. It appears that late in the 1880s, a meeting of the judges resolved that on such an application, the Court should not receive evidence but should give judgment on the statement of claim alone: see Smith v Buchan (1888) 58 L.T. 710. Prom this time, it was firmly established that on a motion for judgment in default, the plaintiff was not required (or entitled) to produce any evidence in support of the allegations in the statement of claim. See Young v Thomas [1892] 2 Ch. 135, where Bowen LJ identified the justification for the practice: the defendant's failure to plead amounted to an admission of the facts in the statement of claim. The English practice thus proceeded on the basis that evidence was required on a motion for judgment in default of defence, but that that evidence was to be found, and found only, in the defendant's admission of the facts alleged in the statement of

In Lenijamar Pty. Ltd. v AGC (Advances) Limited (1990) 27 F.C.R. 388, it was said by Wilcox and Gummow JJ at 394 and 395:

",.. this Court has a system of case management which is different from the procedures adopted in

any of the Divisions of the High Court of Judicature. ...

one From that circumstance we extract two propositions. First, the fundamental differences in procedure render inapplicable most, if not all, of the principles evolved by the English courts in relation to their own procedures. Secondly, the existence of a case management system within this

Court is the backdrop against which the relevant rules must be considered and applied."

Their Honours went on to observe that O. 10 was the

It is clear from the rule itself that an application under 0. 10, r. 7(1)(b) must be made in accordance with 0. 19, i.e., by a motion "supported by affidavit setting forth the facts relied upon" - r. 1(2) - served on the respondent - r. 2(1). Order 19, rule 1(2), in requiring proof by affidavit "setting forth the facts relied upon", suggests that, where judgment is sought pursuant to 0. 10, r. 7, the facts to be set forth in the applicant's affidavit include those relied upon as showing that it is entitled to judgment. It is difficult to see how, in the circumstances of this case, the applicant can complete its entitlement to judgment in the proceedings without putting sufficient evidence before the Court to make out each element in each of the causes of action it sues upon: it is not possible to infer in the face of the denials in the defence that the respondents' conduct is such as to amount to admissions of the untried facts alleged against them. Most of the allegations in the applicant's statement of claim thus have no status other than that, viz., as mere allegations. Of course, insofar as some of these allegations are admitted in the respondents' pleading, then they constitute evidence upon which the applicant can rely in

Order 10, rule 7 is available to authorise the giving of judgment terminating the proceedings wherever a party has failed to comply with a direction requiring the party to take a step in the proceeding. It is apparent from QO. 10, xr. 1(2) that judgment can be sought under r. 7 in an extremely wide range of circumstances; such judgment can be sought, provided a direction has been given and default has been made in complying with it, at any stage of the proceedings, i.e., from any time after the commencement of the proceedings, in accordance with 0. 4, rr. 1 and 6, to a time when pleadings are closed, aiscovery and inspection is complete and witness statements have been exchanged. Although jurisdiction to give judgment under r. 7 can thus be enlivened at any stage of the proceedings before the trial commences, by default in complying with a _ direction, whether the jurisdiction will be exercised in a given case will of course depend upon a range of other considerations. But if there is clear evidence of a determination on the part of a respondent at any stage of the proceedings not to co-operate in getting the matter ready for trial, then it may well be appropriate to

terminate the proceedings by judgment under the rule.

In My Distributors Pty. Ltd. v OMAO Pty, Ltd. (1992) 36 F.C.R. 578, the Court held that 0. 11, r. 13, which deems an allegation of fact made by a party in his pleading to be admitted by the opposite party unless it is traversed by that

party in his own pleading, has no application in a case where

no defence has been filed or served. Gray J, at 588, said:

",.. There is no equivalent in O 10, r 7, or in O ll, r 23, to the words 'such judgment shall be given as, upon the writ or statement of claim, the Court or a Judge shall consider the plaintiff to be entitled to'. The procedures in this Court differ from those in courts whose rules were based on the English rules of court. There are no provisions in this Court for the automatic entry of judgment in default of appearance. -+» There is no provision for the automatic entry of judgment in default of delivery of a defence. Pleadings are filed as well as served. Order 10 of the Rules provides for directions hearings. The practice of the court is that the interlocutory stages of proceedings are conducted according to directions given at one or more directions hearings. If an occasion arises for a party to move for judgment under O 10, r 7, or O 11, xr 23, 0 19, rr 1 and 2 require that the motion be by notice and be supported by an affidavit, setting forth the facts relied upon. This Court is a court of limited jurisdiction. No judgment can be given unless the Court is satisfied that it has jurisdiction. At the very least, an affidavit supporting a motion for judgment, where no defence has been filed and served, would need to provide evidence on which the court could be so satisfied. I am inclined to the view that affidavit evidence proving the facts necessary to entitle the party moving the court to judgment would also be

I respectfully agree with his Honour's obiter remarks. Where final judgment is sought following default by the defendant in compliance with a direction or some other procedural step, there being no specific rule that enables the applicant to enter up judgment without coming before the Court, the applicant must prove his entitlement to the judgment claimed by evidence sufficient to prove, among other things, the facts upon which his cause of action is based. As I have said, the original English rule dealing with the obtaining of judgment in default of defence proceeded on the assumption that evidence was required to prove the plaintiff's

entitlement to the judgment, but that this requirement was satisfied by the admission by the defendant of the facts alleged in the statement of claim constituted by his failure

In my opinion, where final judgment is sought against a respondent pursuant to 0. 10, r. 7(1)(b) on the ground that he is in default in complying with directions given under the order, the applicant must support its motion for judgment with material in legally admissible form sufficient to prove not only that the Court has jurisdiction in the matter and that the circumstances are such as to justify the grant of this discretionary remedy, but also all the facts necessary to prove its entitlement to the relief Claimed under the judgment applied for. An application for "judgment", rather than for 'an order", pursuant to 0. 10, r. 7(1)(b) is an application for final rather than interlocutory relief. It is therefore a proceeding which constitutes a "trial" within the meaning of that term in O. 1, r. 4. It follows that all facts must be proved by direct, as opposed to hearsay, evidence, since O. 33, r. 2 has no application to

such a proceeding. See Warea Pty. Ltd. v Waterloo Industries Pty, Ltd, (1986) 66 A.L.R. 537 at 539.

I recognise that in theory to so hold means that a recalcitrant respondent will be able to put an applicant for judgment to proof by appearing on the application and cross- examining, after notice has been given requiring the

attendance of the applicant's witnesses; such a proceeding could become very protracted indeed. But, as with all procedures enabling a party to bring an action to an end summarily, judgment can only properly be applied for under the rule in a clear case. In such a case, it will generally be fairly plain whether the respondent who wants to cross-examine all and sundry is engaging in delaying tactics: the Court has power to deal with that. For example, under 0. 14, r. 9(3), the Court has power to allow an applicant to rely on an affidavit even though the deponent has not attended for cross- examination despite appropriate notice and, notwithstanding the generally restrictive approach the Court has taken to 0O. 33, r. 3, as to which see Pearce v Button (1986) 8 F.C.R. 408, it will often be appropriate on such an application for judgment to exercise in favour of the applicant the dispensing

The applicant has filed material sufficient to entitle it to final judgment in the action even though I have ruled that it must prove all the material facts necessary to

The applicant must bring into Court a draft of the judgment which it seeks. It seems to me appropriate for final orders to be made at least in terms of paragraphs 1, 2A, 3A, 4 and 4A of the amended application filed 11 March, 1993. The applicant is also entitled to an order against the respondents for the payment of its costs of and incidental to the

proceedings. I do not know whether the receivers wish to apply for an order in relation to their remuneration or

whether they are content to allow that to await the

I certify that this page and the preceding 12 pages are a true copy of the

reasons for judgment herein of the Honourable Mr. Justice Drummond.

Solicitors for the applicant: Australian Securities Commission

Solicitors for the respondents: Corrs Chambers Westgarth