STEWARD J:
1 The applicants in this proceeding seek judgment in default against the sixth respondent. By an amended statement of claim filed on 12 September 2018, it was pleaded that the sixth respondent was the franchise development manager of the first respondent. By an agreement entered into between the first applicant and the first respondent on or about 4 February 2016, it is alleged that, in consideration of the payment made to the first respondent, the first respondent guaranteed an income of some $2,700 per week for five years. It is alleged that the first respondent ceased making payments pursuant to that agreement in 2017.
2 It is further alleged that the sixth respondent, amongst other things, engaged in misleading or deceptive conduct for the purposes of s 18 of the Australian Consumer Law (Sch 2 of the Competition and Consumer Act 2010 (Cth)) as given the force of law in Victoria by the Australian Consumer Law and Fair Trading Act 2012 (Vic). Similar allegations are also made against the first respondent and some of the other respondents.
3 It is unnecessary to set out the details of the representations allegedly made by the sixth respondent; they were variously described and included, what is termed in the pleading, the "guaranteed income representation" and the "capital gain representation". The applicants pleaded that, by reason of the misleading conduct, they have suffered loss and damage. They seek declarations and damages against the sixth respondent as well as other respondents.
4 The sixth respondent has not participated in the proceeding in any way. The applicants have been unable to locate him. In accordance with orders for substituted service, the details of which I need not advert to, the sixth respondent was served with the originating application and statement of claim.
5 On 14 September 2018, I ordered that there be substituted service of the amended originating application and amended statement of claim. The sixth respondent was duly served on 18 September 2018.
6 On 8 November 2018, the applicant sought judgment against the sixth respondent. At a hearing on 14 December 2018, I declined to grant that relief and instead ordered that the sixth respondent file a defence on or before 29 January 2019 and for my orders of that date to be served upon him, which included an order for an adjournment of the application for default judgment, by way of substituted service. These were served on 1 January 2019. A notice of listing of this matter for 19 March 2019 was also served in the same manner on 13 March 2019.
7 The sixth respondent did not file a defence as required and he is, accordingly, in default. Rule 5.23(2)(d) of the Federal Court Rules 2011 (Cth) provides that if a respondent is in default, an applicant may apply to the Court for an order giving judgment for damages to be assessed. For the purpose of giving default judgment, I must be satisfied that there is, on the face of the statement of claim, a claim for relief sought and the Court has jurisdiction to grant that relief: Arthur v Vaupotic Investments Pty Ltd [2005] FCA 433. That requires a pleading that correctly sets out each element of the claim: Macquarie Bank Ltd v Seagle (2005) 146 FCR 400. The jurisdiction to award default judgment is discretionary and should be exercised cautiously: Speedo Holdings BV v Evans (No 2) [2011] FCA 1227. It is a large step to take.
8 Some of the considerations relevant to the exercise of the power to award default judgment were considered by the Full Court of this Court in Professional Administration Service Centres Pty Ltd v Commissioner of Taxation [2012] FCAFC 180; (2012) 295 ALR 52. At [44], after considering the earlier decision of the Court in Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388, the Court said that the following factors were relevant:
(i) the nature of the default involved;
(ii) the duration of the default and whether it is continuing;
(iii) the circumstances in which the orders, in respect of which default has occurred, were made including whether the orders made accorded with the practice of the Court in making orders of that kind;
(iv) the circumstances which occurred between the time of making the orders and the order for the dismissal of the proceeding, including whether any attempt was made by the defaulting party to amend or set aside the orders to accommodate or deal with these intervening circumstances;
(v) whether the continuing default is occasioning unnecessary delay, expense or other prejudice or unacceptable burden on the respondent;
(vi) the attitude of the applicant to the default and the Court's judgment as to whether or not the applicant genuinely wishes the matter to go to trial within a reasonable period;
(vii) the stage that the proceeding has reached - whether they have only recently been commenced; whether it has been commenced for some time but not advanced due, in whole or in part, to the default; or whether the proceeding is in an advanced state ready or nearly ready for hearing;
(viii) the likely disruption to hearing dates or, if not fixed, to setting the matter down for hearing at an early date;
(ix) the consequences to the applicant of dismissing the proceeding.
9 Here, I have carefully considered the case pleaded against the sixth respondent. It alleges that specific representations were made by the sixth respondent, that the representations constituted misleading and/or deceptive conduct in trade or commerce, and that the applicants have by reason of that conduct suffered loss and damage. In my view, on the face of the applicants' statement of claim, they are entitled to relief against the sixth respondent.
10 I am also satisfied that the sixth respondent was served with the relevant pleadings and orders of this Court giving notice of the application for default judgment. He nonetheless did not file, as required, a defence. He has not participated in the proceeding in any other way, including at a mediation which was ordered to take place and which was conducted in July 2018.
11 At the hearing on 14 December 2018, the Court made an order to the sixth respondent to file a defence to give him a final chance to avoid summary disposition; that chance was not taken.
12 Turning to the considerations referred to by the Full Federal Court in Professional Administration, in my view:
(a) The nature of the default is serious. The sixth respondent had four weeks in which to file a defence, which he did not do.
(b) The default has been continuing for over one and a half months. The sixth respondent has otherwise not participated in this proceeding which commenced in 2017.
(c) The order made in respect of which the sixth respondent was in default was an important and ordinary step in the proceeding.
(d) The continuing default is delaying proceedings between the applicants and the other respondents; those proceedings commenced at the end of 2017 and they need to progress to a hearing date.
(e) The other respondents who appear before me do not oppose or consent to the application for default judgment.
13 For these reasons, there should be an order for judgment against the sixth respondent for damages to be assessed as well as an order for costs.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Steward.