AA v BB

Cases Cited: Arthur J S Hall v Simons [2002] 1 AC 615
Croucher v Cachia (2016) 95 NSWLR 117
D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd t/as Greenwood Group Realtors [2019] NSWCA 283
MTH v State of New South Wales [2025] NSWCA 122
P2 v D2 [2019] NSWDC 84
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Presidential Security Services of Australia v Brilley (2008) 73 NSWLR 241
R v Donovan [1934] 2 KB 498
Rogers v The Queen (1994) 181 CLR 251
RPS v The Queen (2000) 199 CLR 620
Strbak v The Queen (2020) 267 CLR 494
Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
UBS AG v Tyne (2018) 265 CLR 77
Zhengzhou Lvdu Real Estate Group Co Ltd v Shu (No. 2) [2025] NSWSC 405

Texts Cited: P Keane (ed) Spencer Bower and Handley: Res Judicata (6th ed LexisNexis EBook)
Ritchie’s Uniform Civil Procedure NSW
Criminal Trial Courts Bench Book (NSW)

Category: Procedural rulings

Parties: AA (Plaintiff)
BB (Defendant)

Representation: Counsel:
R Foord (Plaintiff)
D Stewart (Defendant)
Solicitors:
Wyatts Lawyers (Plaintiff)
Matthews Dooley & Gibson (Defendant)

File Number(s): 2025/00181890

Publication restriction: Certain names in this judgment and the coversheet have been replaced with initials in recognition of s 15A of the Children (Criminal Proceedings) Act 1987 (NSW) and s 114Q of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

(This is an edited version of reasons given orally in Court on 28 November 2025.)

Introduction

1. The plaintiff and defendant were formerly married. They were married on 18 May 2007, separated (finally) in February 2023 and were divorced on 18 August 2024. Together, they have two children from their marriage. I will refer to one of those children as CB, who has assumed prominence in the events giving rise to this proceeding. CB is now 12 years of age.

2. This proceeding arises from a physical altercation between the plaintiff and the defendant which occurred in a public place, in the mid-afternoon on 13 April 2024, when they were both watching CB play a game of rugby league.

3. The plaintiff alleged in his statement of claim that the defendant approached him from behind, then punched him with a clenched fist, swinging from behind his right side and connecting with his face and nose (paragraph 4). He further alleged that on 31 October 2024, the defendant was convicted of the offence of an assault occasioning actual bodily harm (paragraph 5).

4. On 12 May 2025, the plaintiff commenced this proceeding. He brought an action for damages for battery. He contends that the defendant was personally served with the originating process on 19 May 2025 and relies upon the affidavit of a process server in that regard. The operation of the Court rules was such that the applicant was required to file her defence by 9 June 2025. On 16 June 2025, the plaintiff filed a statement of particulars in which he identified the injuries he contended were caused by the defendant’s battery. These were identified as: (a) chronic nasal bone fractures; and (b) chronically deviated septum. The document indicated that the plaintiff pursues, as heads of loss, his out of pocket expenses, past and future economic loss (including also past and future superannuation loss). The plaintiff’s lawyers say that they emailed the statement of particulars to the defendant on the same day.

5. On 27 June 2025, in default of a defence being filed, the plaintiff obtained a default judgment.

6. On 2 July 2025, the Court issued a notice of listing indicating that the assessment hearing was scheduled for 29 July 2025. The defendant says that she did not receive this notice, at least until 23 July 2025.

7. On 29 July 2025, on the plaintiff’s application, the Civil List Judge, Dicker SC DCJ vacated the listing for the assessment hearing. The plaintiff represented herself on that occasion and applied for an adjournment of that hearing and his Honour acceded to that request, whilst reserving the question of costs.

8. By a notice of motion that she filed on 26 August 2025, the defendant (who I will henceforth refer to as the Applicant) applied to have the default judgment entered on 27 June 2025 set aside under r 36.16(2)(a) of the Uniform Civil Procedure Rules 2005 (NSW) (the ‘UCPR’).

9. In support of her application, the applicant relied upon three affidavits she filed. These were an affidavit she filed on 28 July 2025 (Exhibit D); one affidavit filed on 26 August 2025 (this one at 1:02pm, being Exhibit A) and a third affidavit filed on 17 October 2025 (Exhibit B). She also relied upon an affidavit of CD dated 21 October 2025 (Exhibit C).

10. She also relied upon a subset of documents relating to documents that were material to the Local Court proceedings. This included two statements of police facts and a certificate of conviction issued by the Local Court Registrar (Exhibit E).

11. In addition, the applicant was called to give evidence following a requirement that she attend for cross-examination. The scope of that cross-examination was limited to the issue associated with whether or not she was personally served with the originating process when the plaintiff contends that she was.

12. In opposition to the application, the plaintiff (who I will henceforth refer to as the respondent) relied upon the affidavit of a process server (Exhibit 1); a letter from the respondent’s solicitor enclosing a sealed copy of the statement of claim (Exhibit 7); two affidavits of Marcus Huston, his solicitor, dated 28 July 2025 and 4 September 2025 (Exhibits 3 and 4); email correspondence with the applicant in the lead up to the assessment hearing (Exhibit 9); an affidavit from the respondent himself (25 July 2025, Exhibit 2) and bundles of documents produced on subpoena by both the NSW Police Force (Exhibit 5) and the Blacktown Local Court (Exhibit 6). There was also a notice to admit facts and notice disputing facts that partly related to the issue of service of the originating process (Exhibit 10). In closing argument, Counsel for the respondent scarcely referred to this voluminous evidence. As will become apparent, his argument was predominantly legal in nature.

13. The process server was also called and was cross-examined on the issue of service.

14. In the affidavit she prepared whilst she was unrepresented, on 28 July 2025, the applicant set out the circumstances in which she applied for an adjournment of the assessment hearing. The gist of this indicated her inability to respond to the statement of particulars without obtaining the assistance of a legal practitioner. She indicated that her existing lawyer, who had represented her in other proceedings, had informed her that she was unable to act for the applicant in this proceeding.

15. In her affidavit of 26 August 2025 (1:02pm) filed at about the same time as her motion, the applicant:

(a) denied being served with the statement of claim on or about 19 May 2025; (b) says that the first time she saw the statement of claim was on 23 July 2025, after receiving an email from the solicitors acting for her in the family law proceeding.

16. As to the issue of service, Mr Huston attached two documents to his affidavit. The first was an email exchange between the applicant and Mitchell Broom, a solicitor within the respondent’s law firm (sent to the email address of Mitchell Broom). In Mitchell Broom’s email, which was earlier in time, that person asserted that the applicant had been personally served with a letter enclosing the statement of claim. In response, at 5:30pm on 24 July 2025, the applicant acknowledged that the statement of claim and other materials were served; although she indicated that she was unaware of an assessment hearing ‘or any requirement to respond’ until her lawyers had forwarded correspondence from 23 July 2025.

17. Mr Huston also annexed a file note he had prepared on 29 July 2025, the date that the assessment hearing was vacated. As indicated earlier in these reasons, on that occasion, that the applicant represented herself. The note features a reference to the applicant refuting having been personally served with the statement of claim.

18. In the applicant’s first affidavit (Exhibit A) is annexed a proposed defence which, essentially accords with her account of what occurred on the date of the incident. Features of that defence were her denial that she had been convicted; albeit that she admitted that she had been found guilty of the offence of assault occasioning actual bodily harm; she denied the battery in the form that the respondent had asserted; although she admits that she pushed him; says that she pushed him for the purpose of protecting her son, CB, and specifically from the respondent removing the son from her care. She also denied the injury, loss and damage pleaded and particularised by the respondent.

19. At the hearing of the application, Counsel for the applicant supplied the Court with a further iteration of a proposed defence (MFI 3).

20. In her affidavit of 17 October 2025 (Exhibit B), the applicant annexed the transcript of the hearing in the Local Court on 31 October 2024. Materially, the transcript:

21. confirms that her Counsel entered a plea of guilty to the charge on the applicant’s behalf;

22. confirms that her Counsel sought a CRO without conviction and indicated his understanding that the prosecutor did not oppose that sentencing option;

23. indicated that the prosecutor did not correct that expressed understanding;

24. records that the Magistrate acknowledged her plea of guilty;

25. records that the Magistrate sentenced on the basis of ‘agreed facts’ (I will refer further below as to what these were);

26. acceded to her Counsel’s submission and determined that the appropriate penalty was a CRO without conviction. (The conditions imposed were the standard conditions. There were no additional conditions.)

27. CD’s affidavit (Exhibit C) purports to provide some contextual support for the applicant’s narrative as to what occurred on the date of the incident. However, she did not depose to actually seeing the assault that the applicant perpetrated on the respondent.

Parties’ arguments

22. Counsel for both parties each prepared lengthy written submissions on the application. The respondent’s submissions were marked MFI 1. The applicant’s submissions were marked MFI 2. Curiously, even though the applicant was the moving party on this motion, and the respondent was responding to her application, his submissions were filed first in time before her submissions. Be that as it may, it makes greater sense to deal with the applicant’s submissions first.

The applicant’s submissions

Explanation for delay in filing defence

23. I will first refer to some procedural matters emphasised by the applicant’s Counsel. The applicant’s Counsel points to a ‘narrow factual dispute’ as to whether the applicant was personally served with the statement of claim, justifying vacation of the judgment. If it was not, this would amount to an irregularity. He pointed to some matters which, I understood him, to dilute the probative force of apparent admissions the applicant had made about this matter.

24. Also, the applicant notes that she was not warned about the respondent’s intention to file for default judgment and was not served with the motion. Consequently, the default judgment was obtained ex parte. Although the Court rules may sanction that approach, it did not relieve the respondent’s lawyer’s obligation of candour for such applications. Moreover, there was no communication at all with the applicant even if it is accepted that the originating process was served on 19 May 2025 before the default judgment was entered. This was so even in a period when the respondent’s lawyers were corresponding with the applicant’s lawyers in the family law proceeding. The applicant also suggests that once the default judgment was obtained, it was inappropriate for the respondent’s lawyer to communicate with the applicant personally.

25. Once the applicant received correspondence from 23 July 2025, she moved quickly to try to set aside the judgment.

Material misstatements in the originating process

26. The applicant says that it was materially erroneous to allege in the statement of claim that she was ‘convicted’. This, it was said, was borne out by the actual penalty imposed by the Magistrate when sentencing her to a conditional release order (CRO) without conviction. This error was something known both to the respondent and his lawyers. There was, it was submitted, a very material difference between a conviction for a criminal offence and the CRO imposed on her.

27. Another materially erroneous allegation, she contends, is in the description of the assault itself. The principal misstatement, it was said, was the allegation that she had used her clenched fist to strike the respondent on the face, in a so-called “king hit”. This statement of the nature of the assault went beyond the agreed factual basis upon which she had been sentenced in the Local Court and, consequently, went beyond the findings made by the Local Court Magistrate.

Bona fide and arguable defence

28. At the hearing of this application, Counsel for the applicant put before the Court a further iteration of a proposed defence (MFI 3) should she succeed in having the extant judgment set aside.

29. Counsel succinctly contended that his client wanted to assert in a defence that:

(a) She denied she had been ‘convicted’ of an assault; (b) The nature of the assault was different to the way that the respondent had alleged that it was. In particular, she did not use any clenched fist; (c) She wanted to rely on self-defence, both of herself and of her son; (d) Not all of the injuries and disabilities that the respondent relies upon were caused by the assault she perpetrated upon him

30. The relevance, or materiality of some of these matters did not neatly fall into the forensic categories of ‘liability issues’ or ‘quantum issues’. There was cross-over. Thus, for example, even if the applicant was unable to establish self-defence, the matters she relied upon may nonetheless be relevant to a limitation upon the availability of damages under s 53 of the Civil Liability Act 2002 (NSW) (“Civil Liability Act”). The way in which the assault was perpetrated was relevant also to causation and also may affect the availability of aggravated or exemplary damages.

31. The Applicant joined issue, at length, with the legal effect or ramifications of the guilty plea for this proceeding agitated in the respondent’s written submissions. For ease of reference, I will defer further reference to this until after I have summarised the respondent’s submissions.

The respondent’s submissions

32. The respondent’s Counsel’s submissions were many and varied; running to nearly 50 paragraphs. They may be summarised as follows.

Delay in filing defence

33. The applicant was aware of the proceeding before default judgment was obtained. She admitted this in her email to Mitchell Broom on 24 July 2025. The process server’s evidence that he personally served the applicant at her home on 19 May 2025 should be accepted. She was personally served. The applicant lied when she persisted in maintaining that she only became aware of the proceeding on 23 July 2025.

34. The respondent accepted that the originating process was ‘inelegantly’ drafted. During argument, his Counsel placed before the Court a revised iteration of a statement of claim (MFI 4). A comparison between that document and the originating process, in its original form, indicated that the changes were not all that material.

35. The fulcrum of the respondent’s position is that it would not be in the interests of justice that the applicant be permitted to now plead a defence which, in material respects, controverted her position in the Local Court. It could not be in the interests of justice since to her allow her to controvert her position in the Local Court would bring the administration of justice into disrepute.

36. That she might have made a ‘plea for convenience’ in the Local Court did not relieve her of the forensic consequences for her doing so in relation to the Respondent’s suit against her in this Court. In particular, the Respondent is entitled to rely upon the certificate of conviction to prove the fact of the offence. He can also rely upon the guilty plea, as an admission, in order to establish the elements of the offence. It is too late now for the guilty plea to be traversed.

37. Further, it would be unjust to disregard the admissions. Plainly, what was written in the Agreed Facts prepared on the date of the sentencing hearing, and what her Counsel verbally argued before the Magistrate, bound her. By pursuing the forensic course that she did, including admissions inherently or necessarily arising from her guilty plea and by her agreement to the facts ultimately presented to the Local Court Magistrate she obtained a lenient sentence. The process of preparing those agreed facts involved the input of her then Counsel, an experienced criminal law practitioner. It should be inferred that they accorded with her instructions. She should be taken to be bound by them. She got the benefit of positive findings of remorse predicated upon her acknowledgement of her responsibility for occasioning actual bodily harm to the applicant by her assault. She now sought to resile from those facts. Reference was made to a decision of Russell SC DCJ in P2 v D2 [2019] NSWDC 84 at [6], which suggested that this course is intolerable.

38. The respondent referred to the verbal submissions of her Counsel in the Local Court that went beyond the expression of the applicant’s intention to plead guilty. Specifically, at T 3.24 on the date of the sentencing hearing, the applicant’s Counsel had said this to the Magistrate:

“There’s no dispute on the part of [the applicant] that she threw her arm, she thought, as she told police that she’d struck her former husband in the shoulder. Clearly she’s wrong about that, but she accepts as a result of a plea of guilty that her hand, in some way, has come into contact with [the respondent’s] nose which is what caused the laceration because she was wearing a ring at the time.”

39. Further, for the purposes of this proceeding, this Court must be taken to accept the Magistrate’s remarks such as:

“You then approached him from the right-hand side, swung a right arm and hit him in the nose with a hand as you tried to get to your son. This caused pain and bleeding. There is a cut on his nose …”

“The laceration was caused by the ring you were wearing, but you are pleading guilty to it …”

40. By his Counsel’s written submissions, the respondent submitted that there were many cases where attempts by a defendant in a criminal proceeding to traverse ‘pleas of convenience’ had been rebuffed. His Counsel referred me to two papers prepared, apparently at legal seminars prepared for the continuing legal education of criminal law practitioners, which had used the expression ‘pleas of convenience’ and warned practitioners of the consequences, in terms of admissions, of guilty pleas that might extend beyond the life of a criminal proceeding.

41. The respondent initially eschewed any contention that what the applicant ‘admitted’ to in the Local Court criminal proceeding generated any ‘issue estoppel’ and (as I understood his Counsel) any ‘cause of action’ estoppel. However, after the hearing had closed, his Counsel sent some material to the Court (MFI 6) which appeared to suggest that he did, in fact, wish to rely upon those doctrines. Be that as it may, during the hearing, his Counsel appeared to accept that it was unlikely that the respondent could be treated as being a ‘privy’ and therefore be able to take the benefit (or any burden) of factual findings.

42. Nevertheless, Counsel for the respondent submitted that the Court could find that a res judicata arose or, if not, an Anshun estoppel, or alternatively, that the applicant’s attempt to resile from matters she admitted in the Local Court amounted to an abuse of process. It was ‘abusive’ because she was running a ‘sham’ defence and attempting to litigate issues already litigated in an earlier proceeding. If she was permitted to run the defence of self-defence, in particular, she would be changing her position: she would no longer be acknowledging her wrongdoing (a matter which, it was said, contributed to the Magistrate exercising leniency in her favour). This was, to use the words of Counsel for the Respondent ‘an obvious and cynical manipulation of the judicial process’.

43. A separate, but apparently related, reason for rejecting the application is that if the Applicant was permitted to defend the matter, it would subvert the related principle of finality.

44. Further, as a discretionary matter, a reason to refuse to set aside the default judgment is the cost and inconvenience that would follow. What the Applicant had said would necessitate recourse to evidence that was given at the hearing in the family law proceeding. If the matter was to be defended, the case might run to five days.

45. As another discretionary consideration, if she was allowed to controvert her guilty plea, then it would be unfortunate, but inevitable, that her Counsel in the Local Court proceeding would become a material witness.

The applicant’s submissions in reply

46. As the facts identified from the applicant’s affidavits and her proposed defence indicate, the respondent cannot rely upon doctrines of res judicata or issue estoppel arising from what occurred in the Local Court. His case on damages cannot be proved simply on the basis of elements of the criminal offence being deemed to be admitted in his civil suit. Moreover, the applicant makes the anterior point that if the penalty that was imposed was based upon ‘agreed facts’ in the Local Court, there was a disjunction between those agreed facts and indeed the sentencing remarks, and what the respondent actually pleaded in his statement of claim. That the respondent actually put before this Court a proposed amended statement of claim only served to illuminate his acceptance that the statement of claim put to the Judicial Registrar in an application for a default judgment was materially misleading.

Relevant principles

47. In J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd t/as Greenwood Group Realtors [2019] NSWCA 283, Gleeson JA (Brereton JA and Simpson AJA agreeing) stated the relevant principles regulating applications to set aside default judgments:

“[48] … the considerations relevant to an application to set aside a default judgment include whether the applicant has a bona fide ground of defence, an adequate explanation for the failure to defend and the length of any delay ... Whether the plaintiff will be prejudiced if the default judgment were set aside is also relevant.

[49] Fundamentally, the question is whether it is in the interests of justice to allow the party seeking to set aside a default judgment to be permitted to defend the proceedings on the merits.

[50] Two further matters referred to by Sackville AJA in Dai v Zhu ([2013] NSWCA 412) should be mentioned. One is the observation by his Honour at [89] that the rationale for the requirement that the applicant for relief demonstrate a bona fide ground of defence is that, “In the exercise of its ‘unfettered, though judicial, discretion’ the Court will consider … (a) whether any useful purpose would be served by setting aside the default judgment, and (b) how it came about that the applicant found himself bound by a judgment regularly obtained”.

[51] The other matter, which is related to this, is his Honour’s observation at [92] that, “In determining whether the defendant has a bona fide defence on the merits, the Court does not embark on a hearing of the full merits of the case … [A]ll that is necessary is for the defendant to show that the defence is asserted bona fide and that there is an arguable or triable issue. His Honour continued at [92]:

‘The nature of the evidence required in a particular case may depend on the circumstances, including the cogency of the defendant’s explanation for the delay or failure to comply with orders of the Court.

[52] It is also to be accepted that the application of these principles must now be subject to the provisions of the Civil Procedure Act 2005 (NSW). In Dai v Zhu, Sackville AJA gave as an example at [93], that there may be circumstances where it would be contrary to “the just determination of the proceedings”, referring to s 57(1)(a) of the Civil Procedure Act 2005 (NSW), to require a defendant to adduce affidavit evidence demonstrating a bona fide defence and in such cases the Court would be unlikely to reject the defendant’s application to set aside a default judgment solely on the ground that no such affidavit had been filed whilst emphasising each case must of course depend on its own facts.”

48. The respondent’s Counsel also drew my attention to a decision of Peden J in Zhengzhou Lvdu Real Estate Group Co Ltd v Shu *(*No. 2) [2025] NSWSC 405 where her Honour, at [35], also observed that a further relevant consideration was whether the applicant had furnished an adequate explanation for any delay in bringing the application to set aside the judgment.

Determination

Another basis for setting aside the judgment?

49. In her notice of motion, the applicant indicated her reliance upon r 36.16(2)(a) of the UCPR as the ground for setting aside the default judgment.

50. However, by her Counsel’s written and verbal submissions, the applicant raised arguments that suggested that the judgment could be set aside on the basis of something more fundamental: that the application for a default judgment (made ex parte) was reliant upon a pleading that contained materially false statements and what is more, statements that were false to the knowledge of the respondent.

51. The materially false statements were said to be the references in paragraph 4 to the applicant having been ‘convicted’ and the references to her having ‘punched’ the respondent ‘with a clenched fist’ and connecting with the respondent’s ‘nose’.

52. Rule 36.15 of the UCPR provides an independent basis for setting aside a default judgment, as of right, if a judgment is made “irregularly, illegally or against good faith” or otherwise for ‘sufficient cause’. As indicated, this ground was not referred to in her notice of motion, but the respondent’s counsel indicated his willingness to fight on terrain other than r 36.16.

53. Examples of judgments given ‘against good faith’ are given in Ritchie*’*s Uniform Civil Procedure NSW at [36.15.17].

54. I am not persuaded that notwithstanding that the originating process contained factual allegations which the respondent now accepts are inaccurate means that the judgment was obtained against good faith. It is a large proposition to accept that a defendant, who ex hypothesi is in default of an obligation to file a defence may, upon application to set a default judgment aside, rely upon misstatements in the statement of claim.

55. The respondent was not alone in describing what occurred in the Local Court as a ‘conviction’. The Local Court’s own Registrar described the result in that way (Exhibit E). The Crimes *(*Sentencing Procedure) Act 1999 (NSW) distinguishes (see s 9) between CROs with conviction and CROs without conviction (s 10). Moreover, it did not strike me that the circumstance that a ‘conviction’ was obtained against the respondent was, objectively, a material factual matter for the purposes of the civil suit, at least in a statement of claim (as distinct, perhaps, from a reply).

56. Further, the misdescription of the assault in paragraph 5 was not entirely without evidentiary foundation. As Counsel for the respondent submitted, a foundation for this description of the assault was referred to in the evidence of a witness in the Local Court.

57. As the authors of Ritchie*’*s separately indicate (at [36.15.18]), ‘sufficient cause’ to set aside a judgment may arise independently if the basis of a claim is inconsistent with material evidence or the claim is contradicted by unchallenged evidence. However, although there are misstatements, the basis of the claim is tolerably clear: it is an assault (technically in the form of a battery) perpetrated against the respondent.

58. I return now to the ground for setting aside the judgment that is r 36.16(2)(a) of the UCPR.

Adequacy of the explanation for delay

59. Before considering this matter, I note that in his concurrence in J & M McNamee Holdings, Brereton JA emphasised (at [102]) that it is erroneous to treat an applicant’s satisfactory explanation of delay as an essential precondition to the exercise of discretion. It is only a relevant consideration. Counsel for the respondent acknowledged the correctness of this observation.

60. The respondent relies upon the email chain passing between the applicant and Mitchell Broom, Special Counsel of Wyatt Lawyers on 24 July 2025. He also relies upon Mr Huston’s notation of what the applicant said to Judge Dicker SC (refuting that she had been personally served) on the date of the scheduled Assessment hearing. Finally, he relies upon the evidence of the process server.

61. Out of all of this, the respondent submitted that it was clear that the applicant had admitted that she had been served by the originating process as the process server said she had, on or about 19 May 2025.

62. I accept that the statement of claim was personally served on the applicant via the process server on or about 19 May 2025. Although Counsel for the applicant raised the possibility that the process server was mistaken, in cross-examination of him, I do not regard that as likely and Counsel did not submit that it was. The content of the process server’s affidavit of service is probative evidence for the truth of what is asserted. The inherent probabilities are that he presented the documents to the person who effectively identified herself by the applicant’s name at what she accepts was her home.

63. I find that the statement of particulars, which annexed a voluminous bundle of documents was emailed to the applicant on 16 June 2025 (Exhibit 8). Further, it also appears that the Court’s Notice of Listing of the date for the Assessment Hearing was also ‘served’ by the respondent’s lawyers by email.

64. As to the second and third of these documents, I accept the applicant’s evidence that the statement of particulars (with supporting documents) and the notice of listing were received into the applicant’s email account as a ‘spam’ or ‘junk’ communication, and were therefore missed by her at the appropriate time. That evidence was not challenged.

65. I also accept the applicant’s evidence that on 23 July 2025, less than a week before the scheduled Assessment hearing, she was informed by her solicitor about the circumstance that a default judgment had been entered, and that the hearing for the Assessment of Damages was to occur on 29 July 2025. I accept her evidence that she received hard copies of the Statement of Particulars with the supporting documents on or about 23 July.

66. The next day, 24 July, the applicant informally applied for an adjournment by emailing (at nearly 10pm that evening) the Registry in the District Court. On the day before the scheduled hearing, she filed the affidavit that is Exhibit D. Earlier on 24 July 2025, at 5:30pm, she sent the email to Mitchell Broom in which she acknowledged that the ‘Statement of Claim was served and other materials were served’, but was unaware of the Assessment Hearing or requirement for her to ‘respond’ until 23 July. In the same email, she also stated that she did not receive the Notice of Listing from the Court indicating the date for the Assessment hearing. That email to Mr Broom responded to the latter’s email of 3:20pm.

67. Taking a rather generous view of what occurred, it may be that in representations that she made, the applicant was confused in her mind as to when she received the statement of particulars and supporting material with when she was served with the originating process. That could be explicable in circumstances where, although there is a general requirement to serve originating process, it is unnecessary to personally serve a statement of particulars in the sense identified in the Court rules.

68. But it has not been satisfactorily explained what the applicant did after being served with the originating process on or about 19 May and why. She deposed in her affidavit that the first time she saw the statement of claim was after her solicitor emailed it to her on 23 July. That begs the question of what she did with the envelope containing the originating process served on her on 19 May. The evidence indicates that she did nothing about it.

69. However, the respondent, and his lawyers, did not help themselves. It is common ground that in the period from the date of service of the originating process (19 May 2025) to the date of moving for default judgment, there was a “raging” family law dispute as between the applicant and the respondent. At the time the respondent was represented by Kylie Burke, of Burke Mangon Lawyers, in the family law proceeding. The applicant has instructed a solicitor, Antonia Marran, of Mills Oakley in both the family law proceeding and the criminal proceeding.

70. The rules as to service (rr 10.6 and 10.13) indicate that the mode of personal service can be agreed between the parties and service effected generally by acceptance of an originating process by a solicitor. The respondent, and his lawyers, bypassed these obvious additional or alternative ways in bringing the statement of claim to the applicant’s notice. There is nothing to suggest, in particular, whether any inquiry was made of Mills Oakley as to whether that firm had instructions to accept service of the statement of claim on the applicant’s behalf in a fresh civil proceeding. Nor, for that matter, did the respondent’s lawyers notify Mills Oakley of its intention to file for default judgment.

71. Appreciating the bitter relations between the applicant and the respondent, it is still the case that litigation is not a game. Although parties and their lawyers are entitled to look after their own interests (subject to their paramount obligations to the Court), it strikes me that much of the present dispute could have been avoided had basic communication occurred between the parties’ lawyers. Given the relative alacrity with which the applicant acted after 23 July, I infer that had her lawyers been informed about the commencement of this proceeding and the ramifications for the applicant should she not defend them, that much of this dispute may well have been avoided.

72. In all the circumstances, the fact of the applicant’s delay in filing her defence is not satisfactorily explained. However, I do not treat that as a disqualifying factor on the present application.

73. I accept however, that certainly from 23 July, once directly apprised of the issue by her solicitor, the applicant took reasonable steps to expedite a response, especially in view of the indication she had received from her lawyer that the latter could not act for her in the civil proceeding.

74. The delay between the applicant’s effective notice of the default judgment and her taking steps to apply to set it aside was small.

Whether the proposed defence discloses a bona fide and arguable defence

75. This brings to bear three questions. First, what is the defence, or defences, which the applicant (now) wishes to bring. The second is whether the defence(s) is or are made bona fide. The third is whether they are ‘arguable’.

The proposed defence(s)

76. In my view, although various aspects of the respondent’s claim is disputed, the only true defence what she wishes to raise is self-defence, which her Counsel articulated, was self-defence for herself and/or CB.

77. Although her Counsel emphasised, as a material matter, his client’s very different account of how she came to strike the respondent’s nose to the description of the assault in the statement of claim (by its current iteration), there was no suggestion that her contact was accidental or blameless, such that it might excuse her from having committed the tort of battery (Croucher v Cachia (2016) 95 NSWLR 117 at [21]).

78. Such a defence (i.e. self-defence) would be regulated by s 52 of the Civil Liability Act.

Bona fide defence?

79. As to whether the applicant believes that she has a defence of self-defence, firstly, she asserted her belief that she has a good defence (Exhibit A, paragraph 5). There is evidence on the application that might, if accepted, support that admittedly self-serving evidence. There were a number of threads. These included, but were not limited to, the following matters that occurred just before she struck the respondent:

80. as at the date of the incident, the applicant and the respondent had agreed that she was to have full custody of the children (see the version of the Agreed Facts created on 31.10.24, in Exhibit E, CB 295);

81. she had generic concerns for CB’s safety in the respondent’s care due to his drug use (Exhibit A, paragraph 9);

82. she had confided in her friend, CD, on previous occasions over the last couple of years, that she wanted to evade the respondent’s company (Exhibit C, paragraphs 3–4);

83. the respondent manifested his intention to take CB, which was done forcefully and without the applicant’s consent (Exhibit A, paragraphs 9–10);

84. as part of the same incident, she had seen CB crying (Exhibit A, paragraph 10);

85. the respondent poured the contents of a Gatorade bottle over the applicant (Exhibit A, paragraph 10; Exhibit C, paragraph 9);

86. he blocked the applicant’s access to CB (Exhibit A, paragraph 10).

87. The Local Court Magistrate also found that the applicant had tried to ‘get to’ CB in the process of striking the respondent (Exhibit B, T 4.42).

Is a defence of self-defence ‘arguable’?

81. I now turn to the question of whether such defence is ‘arguable’. I do so on the basis that a proposed defence, even one that is bona fide, cannot be ‘arguable’ if it would be liable to be dismissed or struck out under rr 13.4 or 14.28 of the UCPR. This is because, to adapt what Sackville AJA said in Dai v Zhu, there would be no utility in setting aside a default judgment if the proposed defence would entail those consequences.

82. On this application, the respondent does not contend that the evidentiary threads I have referred to could not give rise to a defence of self-defence (either for the applicant to defend herself or to defend CB, or to prevent the deprivation of the liberty of either or both). He does not say that, on the merits, such a defence is inarguable.

83. To reiterate, the respondent’s argument is that such defence cannot be argued since, because of her conduct, and particularly her conduct in the Local Court criminal proceeding, the applicant did not avail herself of the defence to the charge that she was faced with but instead pleaded guilty, when she had the opportunity. This (and other related aspects of her conduct) was beneficial to her in the sense that she received a more lenient penalty than might have been the case had, if she failed with the defence of self-defence, she would be sentenced on the basis of a contested hearing. The respondent argued that she cannot now act inconsistently with that course since to do so would be to abuse the processes of this Court. For her to now be permitted to run such defence would bring the administration of justice into disrepute.

84. The respondent invokes the doctrines of res judicata, issue estoppel, estoppel by conduct and abuse of process. The respondent’s ultimate argument is that it would be futile to permit the applicant to run a defence of self-defence since she would be met with these responses, which were unanswerable.

85. It is necessary now to evaluate the respondent’s ultimate argument, however I do so mindful of the context that this is not the occasion to conduct a mini-trial and, as I intimated earlier, it strikes me that I would only accede to the respondent’s argument if I was satisfied, to the standard reflected in rr 13.4 or 14.28 of the Court rules, themselves partly reflective of the General Steel principles, [1] that the doctrines that the respondent invokes on this application are so obviously applicable that the applicant, were she be permitted to run self-defence, could not possibly succeed; or that there was a practical or virtual certainty that she could not succeed. However, to my mind, this application is not an appropriate vehicle to engage in a de facto application for determination of a separate question. Further evidence on the issues may be required. In those circumstances, what I say below should not be taken to amount to definitive conclusions.

86. As a starting point, consideration needs to be given to the charge that the applicant pleaded guilty to in the Local Court. This was the offence of an assault occasioning actual bodily harm, contrary to s 59(1) of the Crimes Act 1900 (NSW).

87. It is not necessary to evaluate all of the essential elements of the offence. There was never any real doubt in the Local Court, and there is no doubt in this proceeding, that the applicant: (a) intentionally applied force to the respondent; (b) did so without the respondent’s consent; and (c) thereby occasioned ‘actual bodily harm’ to the respondent. As to this last essential element, this was easily satisfied: the concept broadly embraces “any hurt or injury calculated to interfere with the health or comfort of [the victim]. Such hurt or injury need not be permanent but must be more than merely transient and trifling” (R v Donovan [1934] 2 KB 498).

88. The Criminal Trial Courts Bench Book [5-5030] states a further essential element: that the defendant’s conduct be “without lawful excuse”. When I raised this matter for Counsel for the applicant’s consideration, he did, not with respect, appear convinced that this truly was an essential element of the offence. Be that as it may, that question may be of only theoretical significance in circumstances where, by Division 3, Part 11 of the Crimes Act provision is made for a defence of self-defence which, necessarily, would furnish lawful excuse for an assault. In particular, s 418(2) of the Crimes Act relevantly provides that:

(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary –

(a) to defend himself or herself or another person, or

(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or …

and the conduct is a reasonable response in the circumstances as he or she perceives them.

89. Section 419 then provides that:

In any criminal proceedings in which the application of this Division is raised, the prosecution has the onus of proving, beyond reasonable doubt, that the person did not carry out the conduct in self-defence.

90. By way of comparison, the defence of self-defence in civil proceedings, where it applies, in s 52(2) of the Civil Liability Act, is identical in its terms to s 418(2) of the Crimes Act.

91. However, in contrast to the criminal proceeding where self-defence is run, which casts the onus of disproof on the prosecutor (to the highest standard) in a civil proceeding, it is a defendant who bears the onus of proving self-defence, on the balance of probabilities (Presidential Security Services of Australia v Brilley (2008) 73 NSWLR 241 at [62]).

Res judicata, cause of action estoppel, issue estoppel and estoppel by conduct

92. In Rogers v The Queen (1994) 181 CLR 251, the High Court of Australia determined, by majority, that there are no issue estoppels applicable to criminal proceedings. That case, and subsequent authorities applying it, however, dealt with the situation of a subsequent criminal proceeding after determination of an earlier criminal proceeding.

93. Cause of action estoppel may, however, apply where a criminal cause of action has been litigated to judgment. In this way, pleas of autrefois acquit and autrefois convict may apply. They similarly do not obviously govern the position of a civil proceeding following a criminal proceeding.

94. In P Keane (ed) Spencer Bower and Handley: Res Judicata (6th ed LexisNexis EBook), it is said (at [8.38]):

“Issue estoppels are not recognised in criminal cases, and an acquittal will not bar civil proceedings based on the same facts. The parties will generally be different and the onus of proof is different …” (Emphasis supplied.)

95. If it is permissible for a private individual to bring a civil proceeding against a defendant following a concluded criminal proceeding instituted by a prosecutor, it is not immediately obvious why the defendant could not, in principle, rely upon the same facts that were available in the earlier criminal proceeding and, consequently, defences which arise from those facts.

96. The respondent was not a party to the criminal proceeding in the Local Court. It is far from obvious to me that, whilst he undoubtedly had a curiosity in the outcome of the prosecution and was, of course, the informant, he could be taken to be a ‘privy’; in the sense that his ‘interest’ was represented by the prosecutor; such that he could take the benefit of findings in anything determined in the Local Court. To the contrary, the Prosecutor was representing the interests of the community generally.

97. Further, there is a different standard of proof in this civil proceeding. It is also not immediately obvious that the result of a criminal action for the offence of assault occasioning actual bodily harm would attract the doctrine of ‘merger’, which, as I read some of the material forwarded by Counsel for the respondent (MFI 6) applies where it is sought.

98. Finally, as to estoppel by conduct in legal proceeding, this doctrine, as the title of that doctrine indicates, is directed to conduct by a party in the course of a legal proceeding. A prominent example is where a party seeks to depart from a state of affairs apparently settled by pleadings, or admissions on pleadings. It does not necessarily apply where the comparison is between two separate sets of proceedings (involving different parties).

99. I do not regard the doctrines of res judicata, cause of action estoppel, issue estoppel or estoppel by conduct as being so obviously likely to succeed as to make it futile for the applicant to try to run a defence of self-defence.

Abuse of process and Anshun estoppel

100. In Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507, the plurality, when comparing the doctrine of abuse of process with estoppel, observed (at [25]):

“Abuse of process, which may be invoked in areas in which estoppels also apply, is inherently broader and more flexible than estoppel. Although insusceptible of a formulation which comprises closed categories … abuse of process is capable of application in any circumstances in which the use of a court’s procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. [2] It can for that reason be available to relieve against injustice to a party or impairment to the system of administration of justice which might otherwise be occasioned in circumstances where a party to a subsequent proceeding is not bound by an estoppel.”

101. In UBS AG v Tyne (2018) 265 CLR 77, in his concurrence, Gageler J (as his Honour then was) said:

“62 …The doctrine of abuse of process, in its application to the assertion of rights or the raising of issues in successive proceedings, was there explained to be informed in part by considerations of finality and fairness similar to those which inform the doctrine of estoppel but to be inherently broader and more flexible than that doctrine ...

63. By way of illustration, the joint judgment in Tomlinson observed that making a claim or raising an issue which ought reasonably to have been made or raised for determination in an earlier proceeding can constitute an abuse of process where the party seeking to make the claim or raise the issue was neither a party nor the privy of a party to the earlier proceeding and therefore could not be precluded by an estoppel.”

102. Later at [68]–[69], his Honour also noted a ‘substantial overlap’ between abuse of process and Anshun estoppel, where a litigant’s complaint is that a claim or defence is made in a proceeding should have been raised in an earlier proceeding. His Honour alluded to the significance of private and public interests which have to be taken into account in the analysis, which he described as ‘normative’. At [72], his Honour identified that the public interest was the “timely and efficient administration of civil justice”.

103. This case does not fit within the first ‘condition’ of an abuse of process identified by the plurality in Tomlinson and UBS: it was not suggested that there was any oppressiveness to the respondent, or that any such oppressiveness would be unjustifiable, should the applicant be allowed to run a defence of self-defence. But on the other hand, Counsel for the respondent submitted, in effect, that he held a legitimate expectation, or even an assumption, that having pleaded guilty to the offence in the Local Court, and thereby not availing herself of the opportunity to run self-defence, for all time and for all other purposes, she would not later try to run the defence in any subsequent civil proceeding that he brought.

104. Although I emphasise again that it is unnecessary to resolve the point, the proposition that the respondent is, or will become ‘oppressed’ should his expectation be disappointed is not compelling.

105. This leaves the Court with the second condition of an abuse: that the use of the Court’s procedures served to bring the administration of justice into disrepute, or in the language of Gageler J, was inimical to the timely and efficient administration of civil justice.

106. In UBS, the plurality indicated (at [34]) that a determination of whether the bringing or continuance of a proceeding is an abuse of process must take into account procedural law, in this context, ss 56–60 (incl.) of the Civil Procedure Act 2005 (NSW).

107. Relevant matters, it seems to me, when engaging in the ‘normative’ analysis required when considering arguments about abuse of power, is to acknowledge the very different nature of the proceeding that is the subject of comparison.

108. A criminal proceeding is accusatorial in nature. As recent decisions of the High Court have emphatically demonstrated, there is no expectation that a defendant in a criminal proceeding will do or say anything (RPS v The Queen (2000) 199 CLR 620). That applies as much to a sentencing hearing as it does a contested trial for an offence (Strbak v The Queen (2020) 267 CLR 494). The notion that it would have been expected (or perhaps expected by the respondent) that the applicant would have sought to run a defence of self-defence if she genuinely believed that it was available in the Local Court patently jars against this fundamental notion.

109. Counsel for the respondent acknowledged the reality of ‘pleas of convenience’. As was discussed in argument, defendants in a criminal proceeding may plead guilty for multifarious reasons; even in circumstances where they do not believe that they are guilty. In this regard, it struck me from reading the submissions made on the applicant’s behalf before the Local Court Magistrate that the following was said by Counsel to the Magistrate, as at the date of the hearing (31 October 2024), that “on a more positive note, … the parties have come a long way since this incident …”, and also referred to orders that had been agreed to in the family law proceeding. It is not hard to imagine that amicable relations between the informant in a criminal prosecution and a criminal defendant conceivably might well affect the latter’s decision making as to whether, and in what circumstances, they might enter a plea of guilty.

110. This can, notoriously, present difficulty where, after entering a guilty plea upon a committal, a defendant changes their mind and wishes to later traverse a plea at or before the point where they are sentenced. But that is a different area of discourse to the issue I now deal with, whether and to what extent admissions arising from a guilty plea made by a defendant in a criminal proceeding may preclude the raising of defences in a subsequent civil proceeding.

111. To the extent that case management objectives in civil litigation inform argument about abuse of process, the context in which the plurality in UBS referred to them involves multiple civil proceedings. I am only dealing with a single civil proceeding. Plainly, civil management objectives are important, and I will refer to them momentarily.

112. Counsel for the respondent fairly acknowledged that he could not point to any case where a plea of convenience gave rise to an abuse of process based on the same facts in a subsequent civil proceeding. With respect to the decision of Russell SC DCJ that the respondent brought to my attention, P2 v D2, I did not understand his Honour to be laying down any principle in the passage relied upon, but rather was dealing with the circumstances facing him. This was an action in tort for a historical case of sexual assault. The defendant in that case sought to put to proof the plaintiff of her case that he committed sexual misconduct against her after a guilty plea to sexual offences three years before. A distinguishing feature of that case, and this one, is that there is no suggestion that the defendant in that litigation potentially held an available defence which he had not run in the criminal trial.

113. Before I move on from abuse of process, there is another aspect that I wish to briefly touch upon.

114. In Spencer Bower and Handley it is also observed (at [26.07]–[26.08]) that another category of abuse of process is where, by a civil suit, a party wishes to initiate a collateral challenge to a criminal conviction. Usually such actions are treated as abusive unless the conviction is set aside (Arthur J S Hall v Simons [2002] 1 AC 615; as explained in D*’*Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at [76]–[80]). However, in this case, there was no conviction, or even an outcome which is sought to be impugned. The penalty imposed on the applicant was a CRO without conviction. The respondent’s invocation of abuse of process, to the extent that it rests on the proposition that the applicant is wishing to impugn the result in the Local Court is far from compelling.

115. Turning now to Anshun estoppel. The test stated in Anshun is whether the “matter relied upon ... in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it”: Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 at 602.

116. In my view, for the purposes of this application, it suffices to say that the same reasoning for my doubting whether the respondent’s abuse of process argument is compelling applies to Anshun as well, with the added problem, adverted to earlier in these reasons, about whether the respondent can properly be regarded as a ‘privy’.

117. In summary, and at the risk of belabouring the point that my observations about the respondent’s argument are not to be taken as definitive, I find that a defence of self-defence is arguable as well as being bona fide.

General discretionary matters

Some evidentiary issues

118. In the hearing there was a discussion about the evidentiary effect of convictions; even though what occurred on 31 October 2024 was not (contrary to what was indicated in the certificate of conviction that appears in Exhibit E) in fact a ‘conviction’. At any rate, the general rule in s 91 of the Evidence Act 1995 (NSW) (“Evidence Act”) is that evidence of a finding of fact in an (earlier) proceeding is inadmissible to prove the existence of a fact that was in issue in that proceeding in the absence of a conviction. To this general rule, there are exceptions in the facultative provisions in ss 92, 93 and 178 of the Evidence Act. Further, as noted in MTH v State of New South Wales [2025] NSWCA 122 (“MTH”) at [61]–[63], even if the facts of conviction of the applicant in the Local Court could have been proven by a certificate under s 178, the certificate would have amounted only to prima facie evidence of the elements of the charge; capable of being rebutted. I note, however, that special leave to appeal to the High Court has been granted from the decision in MTH. It is inappropriate for me, on this application, to assume the correctness or incorrectness of MTH when considering this application. That is all the more so given that, as stated, the applicant was not ‘convicted’ of the offence in the Local Court.

119. Further, and prima facie, findings in sentencing remarks would appear to fall within the general rule of preclusion in s 91 of the Evidence Act.

120. I accept that admissions can arguably be said to have been made by the applicant in the Local Court for the purposes of ss 81 and 87 of the Evidence Act. This arguably includes implied admissions from the circumstance of the plea itself, in terms of admission about the essential elements of the offence. That will doubtless assist the respondent. Arguably, also admissions might be made arising from the oral submissions to the Local Court made on the applicant’s behalf. I have earlier pointed out that the principles upon the present application expressly do not emphasise the strength of the defence(s) which a defendant would wish to propound as being relevant to the exercise of the discretion. It may be observed however, that there are obvious limitations upon what the respondent might get from admissions. For example, when considering the consequence of the guilty plea, admissions that the applicant intentionally applied force to the respondent without his consent do not themselves say anything about the nature and circumstances in which the force was intentionally applied. Nor does an admission that the infliction of force caused actual bodily harm necessarily get the respondent to where he wants to end up when it comes to proving the extent of the injuries he sustained.

The dictates of justice

121. Being a procedural application, I recognise that I must act in accordance with the dictates of justice (Civil Procedure Act 2005 (NSW), s 58). I must have regard to the overriding purpose (s 56) and objects of case management (s 57), and then I should have regard to such considerations as are referred to in s 58(2)(b) as appear applicable. Some of these matters have been touched upon already, either directly or indirectly.

122. As with any successful application for default judgment, should this application succeed, it will occasion delay and additional cost. Counsel for the respondent emphasised more than once that if the applicant was permitted to rely upon self-defence, the hearing could be in the order of 5 days. However, this submission needs to be evaluated against a notional comparator: of how long an Assessment hearing might run if the judgment stood and the applicant was not permitted to rely on self-defence (as a defence to liability). The respondent did not adduce evidence on this.

123. As was the subject of discussion with both Counsel in the hearing, it struck me that in view of the matters ventilated, if the status quo remained, the Assessment hearing could itself be of substantial length. Counsel for the respondent did not dispute that the applicant would be able to put in issue how and in what circumstances the assault was perpetrated as this was relevant both to the question of the extent of the respondent’s injuries, as well as the recovery of aggravated or exemplary damages. She would, further, be able to put in issue whether there were other events in the respondent’s life, such as his participation in body contact sport, which contributed to his nasal injuries. The applicant would have the opportunity of putting on evidence herself on these issues. Moreover, the respondent accepts that it will also be relevant to the Assessment hearing that the applicant has indicated her intention to rely upon s 53 of the Civil Liability Act. That provision potentially serves as a limitation upon damages and the factual substratum arises from the same facts that would potentially enliven self-defence as a defence.

124. In short, I doubt whether the additional issue of whether or not the applicant acted in self-defence of itself would generate much additional time beyond that which is likely to occur if the matter now proceeds to the Assessment of damages. I accept, however, that the evidence and arguments that the respondent may wish to marshal to support the responses raised in these reasons could generate more time and cost.

125. In this last respect, the prospect that the applicant’s Counsel in the Local Court may be a material witness is not a matter of much weight. That commonly occurs in criminal proceedings where a defendant tries to controvert pleas of guilt that follow receipt of legal advice. If that ultimately falls to the detriment of the applicant, then that is a forensic consequence she will have to bear.

126. The interlocutory disputation that has already occurred has resulted in some efficiencies in the deployment of judicial and administrative resources. However, much of that was already occasioned by the adjournment of the hearing on 29 July 2025 before Dicker SC DCJ. On that occasion, costs were reserved.

127. Some of the matters in s 58(2) deal with a party’s conduct once a proceeding has commenced. I have already indicated that I am less than fully satisfied as to what the applicant did once she was served with the originating process, but also mentioned, in passing, that I was also less than impressed that the respondent, and his lawyers, did not bring the suit to the attention of the applicant’s lawyers representing her in the family law and criminal proceedings. As a rule of thumb, it is also good practice to warn a defendant of an intention to apply for default judgment, even whilst an entitlement arises to bring such application without notice.

128. The level of practical injustice that results from a decision on a procedural kind invariably needs to be considered. For the respondent, he loses the benefit of a judgment in his hand. That is something obviously tangible. However, as indicated, even under the status quo, his narrative as to how and in what circumstances he was assaulted, the extent of his injuries and causation and the availability of aggravated or exemplary damages are still in play even if he holds the judgment. For the applicant, she will not be able to run an arguable defence which, if it was to succeed, would relieve of her any liability to damages. This consideration is a matter weighing strongly in the applicant’s favour and to my mind, is the most material consideration in this application.

129. On balance, acting in accordance with the dictates of justice, I accede to the applicant’s application.

130. Pursuant to r 36.16(2) of the Uniform Civil Procedure Rules, the default judgment entered against the defendant on 27 June 2025 is set aside. I will address the matter of costs after making further directions. A prominent feature of those directions is that, in my view, it is appropriate that the parties confer at a mediation at the earliest opportunity. I say that not only because of the nature of this dispute, which could usefully be the subject of the intermediation of a neutral third party, but also because, subject to such further evidence as the plaintiff may wish to amass for the purposes of his Reply, his case, on liability and damages, is now largely known.

Orders

131. I make the following orders:

132. Pursuant to r 36.16(2) of the Uniform Civil Procedure Rules 2005 (NSW), the default judgment entered against the defendant on 27 June 2025 is set aside.

133. The plaintiff has leave to amend his statement of claim by 2 December 2025.

134. The defendant is to file and serve a defence by 9 December 2025.

135. The plaintiff is to file any reply by 23 December 2025.

136. The proceeding is referred to mediation, to occur by 13 February 2026.

137. The proceeding is to be adjourned for further directions before the Sydney Civil List Judge at 9:30am on 20 February 2026, on which occasion the parties can expect that the matter will be fixed for hearing.

138. Liberty to apply on two days’ notice to the Civil List Judge.

Postscript

132. Upon the delivery of these reasons, the parties made oral submissions as to costs. The order of the Court was that the defendant (applicant) pay 50 percent of the plaintiff’s (respondent’s) costs of her motion to set aside the default judgment.

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Endnotes

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125.

This passage was approved in UBS AG v Tyne (2018) 265 CLR 77 (“UBS”) at [1].

Amendments

03 December 2025

Minor amendments for clarity or expression, and correction to catchwords.