Hogg v Isherwood-Hicks [1992] NTSC 41; 108 FLR 262 (25 June 1992)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA KEARNEY J HRNG DARWIN #DATE 25:6:1992 Appearances not available. ORDER Judgment set aside. JUDGE1 KEARNEY J By summons filed on 23 June 1992 the defendant applied to have set aside ex debito justitiae, an interlocutory judgment secured by the plaintiff on 12 February 1992, for default by the defendant in filing its defence. 2. The writ issued on 16 December 1991; it was endorsed with a statement of claim. It was served on 18 December; notice of appearance was filed on 23 December. On 7 February 1992 the plaintiff filed a 'Request for Judgment' stating:- "Please sign judgment against the defendant for damages to be assessed." This Request was clearly filed pursuant to r21.02(1) which provides that where a defence is not served within the time limited by the Rules "the plaintiff may enter or apply for judgment against the defendant in accordance with this Order." In its form, it was a request under r60.03(3). 3. The distinction between entering judgment and applying for it may be noted. As the succeeding Rules make clear, a judgment applied for is one which may be given by the Court. A judgment which is entered is a judgment entered in the records of the court on the demand of the plaintiff, pursuant to his right under the Rules to do so. Here the plaintiff clearly intended to enter interlocutory judgment against the defendant for damages to be assessed, under r21.03(1)(b). 4. The Request was supported by an affidavit by Hillary Chiknaikin of 6 February, filed on 7 February, in which the deponent stated, inter alia:- "3. On the 30 January 1992 I wrote to the defendant's solicitors seeking a Defence within 7 days. 4. As at the date of swearing this Affidavit no Defence has been received from the Defendant." 5. These two documents, the Request and the supporting affidavit, were accompanied by a form entitled "Judgment in Default", in which a blank appears against the words "DATE INTERLOCUTORY JUDGMENT ENTERED:". The incomplete form was consistent with the request under r60.03(3). This document was ultimately signed by the Master, sealed with the Court seal, and against the words "DATE INTERLOCUTORY JUDGMENT ENTERED:" appear the handwritten words "12 February 1992", written by the Master. Since the plaintiff clearly intended to enter judgment on 7 February he should have inserted that date and filed the document for authentication under r60.03(1). 6. On 10 February 1992 - that is between the date on which the Request was filed and the date on which the Master actually entered judgment