Marcello D'Ambrosio v Gregory Edward Hopkins and Anne Hopkins Trading As Hoppy Constructions [1997] ACTSC 10 (26 February 1997)

SUPREME COURT OF THE ACT

MARCELLO D'AMBROSIO v. GREGORY EDWARD HOPKINS and ANNE HOPKINS trading
as HOPPY CONSTRUCTIONS
No. SC524 of 1990
Number of pages - 2
Jurisdiction

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY MASTER T CONNOLLY

CATCHWORDS

Jurisdiction - Jurisdiction of the Master - Claim for damages - Personal injury - Industrial accident - No defence filed - No default judgment entered - Whether the implied admission of liability is sufficient to bring the matter within the Master's jurisdiction for assessment - No opportunity to challenge default judgment - Risk of irregular judgment.

Supreme Court Rules (ACT), O 61A; O 23 r.13; O 31 Civil Procedure ACT, Vol. 1, Butterworths

HEARING

CANBERRA, 26 February 1997 26:2:1997

Counsel for the Plaintiff: Mr C Whitelaw Instructing Solicitors: Elrington Boardman Allport

ORDER

THE COURT ORDERS THAT:
The matter be stood out of the list generally.

DECISION

MASTER T CONNOLLY
1. This is a claim for personal injuries arising from an industrial accident. No defence has been filed. Ordinarily, an industrial claim such as this is not within my jurisdiction, which is set out in O 61A of the Rules of this Court.

2. Counsel for the plaintiff has argued that the matter is within my jurisdiction. He argues that O 23 r.13 of the Rules, which provides that allegations of fact in any pleadings which have not been denied, shall be taken to be admitted, allows me to find that, because of the absence of a defence, liability has been admitted, and to proceed by way of assessment.

3. I do not believe that this is an appropriate course for me, as a judicial officer exercising a defined and limited jurisdiction, to adopt. This course would, in effect, establish O 23 r.13 as an alternative to O 31, which provides a regime for default judgments. I note that the learned authors of the practice book, Civil Procedure ACT state that O 23 r.13 "...must be read with...O 31" (at 8758).

4. To embark on the course advocated seems to me to involve me commencing a matter in which I have no jurisdiction in order to make findings to confer jurisdiction. It is a "boot strap argument". I believe it is inappropriate. The safest course, in order to ensure no irregularity is to decline to exercise jurisdiction. Default judgment should be entered in the normal way, and the matter then listed. This will both avoid the risk of an irregular judgment, and provide the normal means for challenge of a default judgment. The fact that the course advocated by counsel would have the effect of providing a form of default judgment without the opportunity to challenge such default is a further factor reinforcing my decision that O 23 r.13 is not an alternative method of obtaining a judgment by default on liability so as to bring a matter within the defined jurisdiction of O 61A.