Bendigo and Adelaide Bank Limited v Chowdhury and Anor

Judgment 1JOHNSON J: These proceedings are before the Court pursuant to the judicial directions hearing procedure applicable to defended matters in the Possession List. 2By Statement of Claim filed 30 March 2012, the Plaintiff, Bendigo and Adelaide Bank Limited, claims relief against the Defendants, Serajum Monir Chowdhury and Ayesha Chowdhury, arising from alleged mortgage default. The Plaintiff claims possession of two properties at Mt Druitt and Marayong, together with (as at 19 March 2012) judgment against the Defendants in a sum exceeding $560,000.00. 3As required, the Statement of Claim informed the Defendants that if a Defence was not filed within 28 days of service of the Statement of Claim, the Defendants would be in default and the Court may enter judgment. 4On 26 April 2012, a document entitled "Defence" was filed in the Registry. The formal parts of the document (the approved form of Defence in Form 7B) and the names of the parties were completed in handwriting. The "Pleadings and Particulars" part of the document was left entirely blank. 5The Defendants swore an affidavit verifying the Defence on 23 April 2012. The affidavit attested, in the usual manner, that the Defendants believed "that the allegations of fact contained in the defence are true", that the "allegations of fact that are denied in the defence are untrue" and that "after reasonable inquiry [the Defendants] do not know whether or not the allegations of fact that are not admitted in the defence are true". Of course, these statements are quite meaningless in this case because the Defence failed to allege facts or deny facts or not admit facts or, indeed, say anything at all about any alleged defence. 6Self-evidently, the filed Defence does not comply with the pleading rules contained in Rule 14.6ff Uniform Civil Procedure Rules 2005 ("UCPR"). In particular, the Defendants failed to comply with Rule 14.15(3) UCPR which requires defendants in proceedings on a claim for possession of land to plead specifically every ground of defence on which they seek to rely. 7In circumstances where the filed Defence contains no pleadings or particulars whatsoever, the document is fatally flawed. 8Rule 4.10 UCPR provides for filing of documents: "4.10 Filing generally (cf SCR Part 1, rule 9A) (1) A person may lodge a document for filing in relation to any proceedings: (a) by delivering it to an officer of the court in the registry, or (b) by sending it by post to the registry's business address, or (c) by sending it to the registry's DX address. (2) Any person may lodge a document with an officer of the court for the purpose of its being filed in relation to proceedings, or proposed proceedings, in the court. (3) Unless acceptance of the document is subsequently refused by the court or by an officer of the court, a document is taken to have been filed when it is lodged for filing. (4) The court may refuse to accept a document for filing whether or not an officer of the court has accepted the document for filing. (5) An officer of the court may refuse to accept a document for filing in the following circumstances: (a) in the case of originating process: (i) if the location specified in the document as the venue at which the proceedings are to be heard is a location at which the court does not sit, or (ii) if the person on whose behalf the originating process is sought to be filed is the subject of an order of the Supreme Court declaring the person to be a vexatious litigant, (b) in the case of a document for which a filing fee is payable, if the fee has not been paid or arrangements satisfactory to the officer of the court have not been made for its payment. Note. See also rule 3.4 in relation to the electronic filing of documents." 9It will be observed that Rule 4.10(4) and (5) refers to circumstances in which the Court or an officer of the Court may refuse to accept a document for filing. Clearly, the term "officer of the court" includes persons working in the Registry, whose duties include the acceptance or rejection of documents for filing. The definition of "officer of the court" in the Dictionary to the UCPR does not affect this view. 10Rule 4.10 has been in the same form since the UCPR commenced in August 2005. It does not appear that Rule 4.10 was intended to restrict or remove the power of Registry staff to reject documents lodged for filing because of fundamental defects, such as (in this case) the failure to include in the document any pleaded and particularised defence. (See, generally, the paper delivered by Hamilton J (one of the architects of the Civil Procedure Act 2005 and UCPR) entitled "Developments in Civil Procedure" (11 March 2006, page 3, available on the Supreme Court website)). 11It may be observed that the scheme under Rule 4.10 UCPR is different to that contained in O46 r7A Federal Court Rules 1979 which provides expressly that a Registrar of the Federal Court of Australia may refuse to accept a document if it appears on its face to be an abuse of the process of the Court or to be frivolous or vexatious, with provision for the Registrar (if he or she sees fit) to seek a direction from a Judge as to whether a document ought be accepted. (See, generally, Satchithanantham v National Australia Bank Limited [2010] FCAFC 47; 268 ALR 222; Gibbons v Commonwealth of Australia [2010] FCA 1447 and Vasiliou v Honourable Justice Marshall [2011] FCA 588). 12To my mind, however, where a document sought to be filed in this Court contains a fatal and obvious deficiency, such as a complete absence of any pleaded and particularised defence, the appropriate course is for an officer of the court to refuse to accept the document for filing. This process does not require any exercise of judgment, involving an evaluation of particular wording contained in the document to assess whether the document complies with the UCPR. Rather, it is to note, on the face of the document, the complete absence of a critical and essential ingredient. The document is defective in a fundamental respect and is not, in truth, a Defence. 13The document in this case was accepted for filing on 26 April 2012, with the consequence that a future listing date of 23 May 2012 was allocated. The Defence was served on the Plaintiff and, on 23 May 2012, the Registrar directed that the proceedings be listed for a judicial directions hearing before me today. 14Ms Cowpe, solicitor, appears for the Plaintiff today. She invited the Court to take appropriate action with respect to the Defence. There is no appearance by or on behalf of the Defendants. Ms Cowpe informed the Court that a solicitor has telephoned her on behalf of the Defendants. No Notice of Appearance has been filed by a solicitor for the Defendants. The solicitor did not inform Ms Cowpe that he intended to appear today nor was any indication given that the Defendants proposed to appear. I am satisfied that the Defendants are aware of this hearing. It is appropriate to proceed in their absence. 15In my view, the appropriate course is for the Court to refuse to accept the document for filing, even though an officer of the court accepted the document for filing on 26 April 2012. Rule 4.10(3) and (4) UCPR provides for this approach, which has the effect that a Defence will not have been filed in the proceedings. 16It will then be a matter for the Plaintiff to take such course as it sees fit, whether by way of application under Rule 16.2 and 4 UCPR for default judgment or otherwise. 17Rule 14.28(1) UCPR provides that the Court may, at any stage of the proceedings, order that a pleading be struck out if the pleading discloses no defence or other case appropriate to the nature of the pleading or has a tendency to cause prejudice, embarrassment or delay in the proceedings or is otherwise an abuse of the process of the Court. If an order was not to be made under Rule 4.10(4), then a strike-out order under Rule 14.28 would be appropriate in this case. 18The Court has observed a filed and fatally flawed Defence of this type on another occasion (Adelaide Bank Limited v Mani, 015455/08, Johnson J, 29 May 2009). 19I am conscious of the pressures placed upon the Registry staff at the present time. The Court should not seek to increase that burden by insisting upon an overly demanding level of scrutiny of documents which are sought to be filed. That said, the document filed in this case was so obviously and hopelessly defective and incomplete in a fundamental respect that it should not have been accepted for filing in the first place. 20It is necessary to keep in mind as well the pressures which operate upon unrepresented litigants in the Possession List. I note that the present claim seeks possession of the Mt Druitt property (which appears to be the Defendants' residence) and another property at Marayong. The Court is unaware whether the Marayong property is an investment property. 21The processes of the Court developed in recent years in Possession List matters have sought to provide assistance to defendants as to sources of legal advice in the undoubtedly stressful circumstances when a Statement of Claim is served seeking possession of land upon the basis of alleged mortgage default. Annexure 1 to the Possession List Practice Note (SC CL6) and the coversheet to the Statement of Claim (clauses 7-9 of the Practice Note and Rule 6.8A UCPR) seek to assist in this regard, with information (in multiple languages) concerning legal advice and the availability of interpreter and translation services. 22The Statement of Claim in this case indicated to the Defendants, amongst other things, the telephone number and website for LawAccess NSW. The website for LawAccess NSW indicates sources of legal advice, and provides, as well, a link to the second edition of "The Mortgage Stress Handbook", a helpful publication issued in 2011 by Legal Aid New South Wales and the Consumer Credit Legal Centre (NSW). This handbook provides practical assistance to defendants in Possession List matters on a range of issues, including available defences and the manner in which such defences may be pleaded and particularised. In addition, there is available at the Court, from time to time (presently two mornings a week), legal advice from Duty Solicitors for persons with proceedings in the Possession List. 23I mention these matters because the present Defendants had available to them resources of this type, apart from the ability to obtain legal advice from other sources which may have been available to them. 24As parties to civil proceedings before this Court, the Defendants are under a duty to assist the Court to further the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings: s.56 Civil Procedure Act 2005. 25It is self-evident that the Defence filed on 26 April 2012 did not serve this purpose, given its complete failure to identify any issues which the Defendants sought to raise in the proceedings. 26Pursuant to Rule 4.10(4) UCPR, I refuse to accept for filing the Defence filed on 26 April 2012. 27The Plaintiff does not seek an order for costs of today and I make no order as to costs.