Novosel v AC Contractors Australia Pty Ltd [2008] ACTSC 18 (29 February 2008)

Last Updated: 7 May 2008

IVAN MARKO NOVOSEL v AC CONTRACTORS AUSTRALIA PTY LTD

(ACN 093 856 225)

[2008] ACTSC 18 (29 February 2008)

EX TEMPORE JUDGMENT

PRACTICE AND PROCEDURE - action for damages for negligence - workplace injury - interlocutory judgment in default of appearance - application to set aside - no arguable defence shown - application dismissed

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

Sharples v Northern Territory (1988) 91 FLR 11

Hewitt v Mirror Newspapers Limited (1977) 17 ACTR 1

No. SC 606 of 2007

Judge: Master Harper

Supreme Court of the ACT

Date: 29 February 2008

IN THE SUPREME COURT OF THE )

) No. SC 606 of 2007

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: IVAN MARKO NOVOSEL

Plaintiff

AND: AC CONTRACTORS AUSTRALIA PTY LTD (ACN 093 856 225)

Defendant

ORDER

Judge: Master Harper

Date: 29 February 2008

Place: Canberra

THE COURT ORDERS THAT:

1. The application be dismissed

2. The defendant pay the plaintiff's costs of the application

1. This is an application to set aside an interlocutory judgment entered by default in an action for damages for personal injury by an employee against an employer. The action was commenced by originating claim on 5 September 2007 and service was effected on the defendant on 18 September 2007.

2. The defendant is covered in relation to the claim by a policy of insurance issued by Allianz Australia Workers Compensation. On 10 September 2007 the solicitors for the plaintiff wrote to the insurer enclosing a copy of the originating process. On 12 October they wrote to the insurer again enclosing a copy of an affidavit of service on the defendant. They asked that the insurer arrange for the filing of a notice of intention to respond within the time provided by the Court Procedures Rules, failing which they foreshadowed that they would seek instructions to apply for interlocutory judgment.

3. Claims officers employed by the insurer have put on affidavits which explain that because of oversights and perhaps pressure of work within the claims area of the insurance company, external solicitors were not instructed immediately. On 25 October 2007 the solicitors for the plaintiff entered default judgment. On 29 October they sent a copy of the default judgment to the insurer.

4. During December 2007 a claims officer within Allianz realised what had happened and arranged for the present solicitors for the defendant to be instructed. The solicitors acted reasonably promptly to put on this application, to prepare a draft defence and to take other steps by way of investigation of the claim.

5. Courts have been critical of solicitors for plaintiffs who move for default judgment without notice immediately on the expiration of the period prescribed by the Rules: see for example Hogg v Isherwood-Hicks Pty Ltd [1992] NTSC 41; (1992) 108 FLR 262 per Kearney J of the Supreme Court of the Northern Territory, where his Honour noted that such action frequently serves no useful purpose, increases the cost of litigation unnecessarily, and should form no part of the practice of law.

6. This, it seems to me, is not such a case. The solicitors for the plaintiff put the defendant and the insurer on notice of their instructions to move for default judgment prior to doing so. For reasons which have been explained, neither the defendant nor the insurer took steps to instruct solicitors to protect the position of the defendant. I am satisfied that this is not a case in which criticism of the solicitors for the plaintiff is warranted.

7. The principles to be applied on application to set aside a default judgment have been explained in many decisions of courts. I will simply quote another Northern Territory decision, Sharples v Northern Territory (1988) 91 FLR 11, where Asche CJ explained the rule in terms which I summarise as follows: if a plaintiff has regularly obtained judgment, he is entitled to that judgment and to be assured that the defendant has, at least, an arguable defence. He is entitled to be so assured by somebody who is sufficiently personally concerned with that defence to make an affidavit concerning the details of the defence knowing full well the penalties for perjury. An affidavit by a solicitor deposing to instructions that there is a good defence given to him by his client will generally not be sufficient. In the present case, the action, as I said, is one for damages for personal injury. The default judgment is an interlocutory judgment for damages to be assessed. The judgment leaves in issue between the parties all issues relating to quantum of damages and generally to the question of what damage flowed from the negligence of the defendant.

8. In the present case the solicitor for the defendant has affirmed an affidavit explaining what she has done since she obtained instructions from the insurer, annexing documentary material which she has obtained from the employer, including a timesheet for the week of 21 October 2004, the date alleged in the statement of claim as the date the cause of action arose.

9. She has also annexed a medical certificate by Dr LR Quach, a general practitioner, dated 22 October 2004 certifying that the plaintiff was suffering from a strained scapular muscle and was unable to work. I read the certificate as a certificate for one day off work on the basis of muscular strain.

10. She has also annexed copies of timesheet records in relation to the plaintiff from that date until June 2005, a copy of a register of injuries kept by the defendant in relation to the plaintiff, and medical certificates issued by Dr Quach in August 2006. She has exhibited to her affidavit a draft defence which she proposes to deliver if the judgment is set aside.

11. In that defence, the defendant seeks to put in issue a number of specific injuries which are asserted in the statement of claim to flow from the defendant's negligence; to deny negligence by reference to the particulars asserted in the statement of claim; to deny the availability of a claim for breach of statutory duty; and to assert contributory negligence arising from the plaintiff's failure to adhere to standards set out in a document as to work methods dated 1 March 2004 prepared by the employer and signed by the plaintiff.

12. Counsel for the defendant has drawn my attention to a load limit of 20 kilograms per man per lift set out in that document. The defendant has not put into evidence copies of statements of any witnesses it might call on the hearing of the action if liability were in issue. I infer that there are no such statements in existence at this time.

13. Also in evidence is a copy of a workers' compensation claim form signed by the plaintiff on 14 November 2006, which I accept was the first claim form lodged with the defendant's insurer in relation to the injuries in respect of which the plaintiff claims in this action. This is an action which, had solicitors been instructed in time, would, I accept, have been contested by the defendant in relation to liability, putting the plaintiff to strict proof of his claim and taking the opportunity to test his credit generally in cross-examination.

14. It seems to me that a defence for that purpose is not available in these circumstances. Default judgment has been entered. To succeed in having the judgment set aside the defendant must satisfy the court that there is a defence available which is at least arguable. The evidence in this case does not achieve that level.

15. I make the point that the failure of an application to set aside a judgment entered by default is no bar to further applications being brought: see Hewitt v Mirror Newspapers Limited (1977) 17 ACTR 1. If the solicitors for the defendant or the insurer come into possession of positive evidence capable of satisfying the Court that there is a defence on the merits, there will be nothing to preclude the defendant from making a further application to set the interlocutory judgment aside. At this stage I am not satisfied that the defendant has made out such a case.

16. The application will be dismissed with costs.

I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Master.

Associate:

Date: 29 February 2008

Counsel for the plaintiff: Mr AJ Bartley SC

Solicitors for the plaintiff: Ken Cush & Associates

Counsel for the defendant: Mr SR Hausfeld

Solicitors for the defendant: Sparke Helmore

Date of hearing: 29 February 2008

Date of judgment: 29 February 2008