Zirk-Sadowski v University of New South Wales

Federal Court of Australia|2023-06-01|Before: Anderson J

The applicant's interlocutory application for default judgment pursuant to r 5.23 of the Federal Court Rules 2011 (Cth) be dismissed.
The applicant be granted leave to file and serve on the respondents an amended originating application by 4.00pm on 29 June 2023.
The matter be listed for a case management hearing at 9.30am on 11 July 2023. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

INTRODUCTION 1 On 11 November 2022, the applicant, Dr Zirk-Sadowski, filed an originating application for relief under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) (Originating Application). The applicant applies for default judgment against the first and second respondents pursuant to r 5.23 of the Federal Court Rules 2011 (Cth) (Rules). At the time of hearing the applicant's application, the first respondent was the Fair Work Commission, and the second respondent was the University of New South Wales. On 11 July 2023, the Court made orders that the Fair Work Commission be made the second respondent, and the University of New South Wales be made the first respondent. 2 The applicant contends that the respondents are in default within the meaning of r 5.22 of the Rules as they have not: (a) filed a defence within 28 days of service of the Originating Application or the concise statement as required by r 16.32 of the Rules; (b) filed a genuine steps statement before the return date on the Originating Application as required by r 5.03 of the Rules.

CONSIDERATION 3 I will deal with the respondents' failure to file a defence. 4 Rule 16.32 of the Rules provides that: A respondent must file a defence in accordance with form 33 within 28 days after service of the statement of claim. 5 Although the applicant did not file a statement of claim, the applicant contends that, by filing the Originating Application which contained a section titled, "Details of Claim", or by filing a concise statement, the Court should take him to have filed a statement of claim within the meaning of r 16.32 of the Rules. On this basis, the applicant contends that the respondents are in default within the meaning of r 5.22 of the Rules, and that the applicant is entitled to default judgment pursuant to r 5.23(2)(c) and (d) of the Rules. 6 I reject the applicant's submissions for the following reasons. 7 First, the applicant has not filed and served on the respondents a sealed statement of claim. As stated in r 8.05(3) of the Rules, a statement of claim must be in accordance with Form 17. The applicant has not filed and served on the respondents a document that purports to be in accordance with Form 17. No question of compliance with r 16.32 arises in the absence of the applicant filing and serving a sealed statement of claim. 8 Secondly, for the applicant to be entitled to default judgment, the applicant would ordinarily need to establish that r 5.23(2)(c) of the Rules is engaged. Rule 5.23(2)(c) provides that an applicant may apply to the Court for "an order giving judgment against the respondent for the relief claimed in the statement of claim or alternative accompanying document to which the Court is satisfied that the applicant is entitled" (emphasis added). The Court must assess this on the face of the pleadings. In the present case, neither the concise statement nor the Originating Application disclosed material facts capable of demonstrating jurisdictional error. 9 The applicant also contends that the Court may order default judgment under r 5.23(2)(d) of the Rules, which provides that the applicant may apply for an order giving judgment against the respondents for damages to be assessed, or any other order. As can be seen from the language of the rule, this is a wide discretionary power: Breezway Australia (Holdings) Pty Ltd v Preference Manufacturing Pty Ltd (No 3) [2013] FCA 67 at [12]. However, the applicant has not pointed to any authority in which a court has awarded default judgment to an applicant in circumstances such as the present case, that is, where the respondents plainly seek to be heard, but merely disagree about whether they are required to file a defence. 10 The power to order default judgment must be exercised cautiously: Lawson v New South Wales Minister for Land and Water Conservation [2007] FCA 8 at [22], citing McKenzie v South Australia [2005] FCA 22 at [25] et seq. The Court is required to be attentive to, amongst other things, the desirability of litigants having a proper opportunity to present their case: Wu v Avin Operations Pty Ltd [2006] FCA 36 at [51]. In the present case, the applicant has not identified circumstances warranting the exercise of the Court's discretion to award default judgment.

DISPOSITION 11 For these reasons, the applicant's application for default judgment will be dismissed. I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Anderson.

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