Goldberg v Morrow [2003] VSCA 127

Court of Appeal (Vic)|2003-08-22|Before: ORMISTON and BATT, JJ.A.

The applicant's primary complaint in his affidavit and to this Court, and to the judge, was, again, that his application for default judgment was ignored and that the judge "instead", as he put it, dealt with the defects in his statement of claim. As to this, the judge likewise refused to hold, as the respondent had sought, that the statement of claim, both in its original and amended form, did not disclose a cause of action, but the judge said only that each was embarrassing in form, so ordering that they be struck out, with a further right given to the applicant to serve and file another statement of claim by 7 August. The judge properly explained that in form the only statement of claim before him on the appeal was the original statement of claim which he dealt with fairly and with considerable care, in terms which were not directly criticised, so that it is unnecessary to say more than that his reasons for striking out the statement of claim seem entirely correct. However, he explained that the amended statement of claim, though still containing a kernel of claims which could properly be entertained by the Court, was worse and more embarrassing in form than the original statement of claim. As the amended statement of claim could not go forward to trial, he struck out the latter document also pursuant to Order 23.02(c), so as to enable the applicant to file yet another further statement of claim which could be hoped this time to be in proper form. His Honour sought to give the applicant some advice as to how that might be achieved, but his object was to allow the action to proceed, for the applicant certainly would otherwise have faced the delay of yet other pleading summons if the judge had not dealt with the first amended statement of claim. Nevertheless, his Honour's actions were characterised by the applicant as "only designed to delay my action as long as possible". That comment reflects the lack of accuracy of much of the affidavit, which by reason of its intemperate language might otherwise have been struck from the file

The pleading issue, however, is not what the applicant principally complains about. He reiterates, time and time again, his criticisms of the failure to give him the default judgment he sought. But he is quite wrong in saying that the judge ignored his application. The judge's reasons, especially on p.1, make clear why he did not decide that application, and the applicant was certainly not denied natural justice as he claims. The judge set out what he believed had happened to the applicant's application, saying that, "not surprisingly, the Master took the practical course, and only course available to him, and that was to consider, first of all, the summons brought by the [respondent]". That is also what the judge did, and properly so, for he said, on the following page, that his function was "to consider the two applications before" him by reason of the notice of appeal. Having reached, correctly, the view that the statement of claim was not in proper form and ought to be struck out, it followed that there could be no proper basis for entering a default judgment based on a defective statement of claim. Damages would still have to be assessed if judgment had been given and that could not properly be done on improperly pleaded claims. By implication, therefore, his Honour declined to deal with the default application for that very good reason. If there be any criticism, it can only be that his Honour did not later spell out the consequences for the applicant's own application and did not make a formal order to that effect, but that could have been the only proper outcome, that is the dismissal of the applicant's application, and the applicant has no basis for complaint in law, nor any arguable grounds for obtaining leave to appeal

What the learned judge was adverting to, which perhaps he ought to have spelt out for the applicant in the circumstances, is the practice whereby the Court does not ordinarily enter a default judgment where it is pointless do so because a defendant is seeking genuinely on a tenable basis to defend the proceeding. In other words, whatever the technical failure of the defendant may be, a default judgment serves no purpose and the failure can properly be taken into account only on other questions of discretion, such as the question of costs. It is this well known kind of consideration which formed the basis for the judge's (and the master's) approach, though not expressly stated.

It is so well known a principle of practice in this area (that is in the area of default judgments), that it would serve no purpose to examine all the authorities which have expressed it. They are usefully set out in the practice books and, in particular, to the annotation to Orders 22.01 and 22.02 of the Rules in Williams Supreme Court Practice. They include cases such as the decision of the Court of Appeal in Redditch Building Society v. Roberts[1], where it is said that a default judgment should never be ordered "where the defendant is before the Court...and is anxious to put himself in a position to defend" the proceedings, whatever the technical position might be. That authority related to judgments in default of appearance, but, not only is it consistent with other authorities relating to rules such as Order 22.01, but what was there said is likewise the principle behind the similar approach to judgments in default of defence: See by way of example:

Gill v. Woodfin[2]; Gibbings v. Stirling[3] and in particular Wiedenhofer v. The Commonwealth[4], a decision of Gibbs, J., of the High Court, as he then was. Of course, it must be seen that the defendant has a genuine answer to the plaintiff's claim and how that is shown will depend on all the circumstances. Where, as here, objection is made to the form and substance of the statement of claim, then that ordinarily will be sufficient, if it can be seen that the objection is reasonably arguable. I should explain further, if it be necessary, that one reason for the Court's approach is that it would be a waste of time and money to allow a default judgment and then to require it to be set aside, where the nature of the defence or objection to the claim is obvious. Ordinarily, it is not difficult to show sufficient facts or legal argument, if there is a genuine defence, to have a default judgment set aside. Not only would the process result in further expenditure of money and time, but it would allow a judgment on the records of the Court which should not be maintained, a matter which may reflect on the reputation or solvency of a particular defendant.

There is, for the reasons I have stated, and notwithstanding what has been put to the Court by the applicant, no basis for the applicant's claim for leave to appeal and the application should therefore be refused.

The order of the Court therefore is that the application be refused.

Having regard to the way the matter has been argued both here and below, we do not propose to make any order with respect to the costs of this application.

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Judgment (12 paragraphs)

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