Re M Y Distributors Pty Ltd v Omao Pty Ltd and John Ring [1992] FCA 329; (1992) 36 FCR 578 (10 July 1992)

FEDERAL COURT OF AUSTRALIA

Re: M. Y. DISTRIBUTORS PTY. LTD.
And: OMAO PTY. LTD. and JOHN RING
No. V G25 of 1992
FED No. 491
Practice and Procedure
[1992] FCA 329; (1992) 36 FCR 578

COURT

IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Sweeney(1), Northrop(2) and Gray(3) JJ.

CATCHWORDS

Practice and Procedure - procedure - trial - no defence filed - whether allegations in statement of claim deemed to be admitted.

Trade Practices Act 1974 ss. 52, 53, 82, s. 4, s.75B.

Federal Court Rules O.11 r. 16, O.10 r.7, O.19 rr. 1 and 2, O.32 r. 2, O.11 r.23, O.11 r.13, O.4. r.5.

National Bank of Australasia v Cohen (1896) 22 VLR 269.

Cribb v Freyburger (1919) WN 22.

Nixon v W. Phelan and Son Pty Ltd (1959) VR 83.

Lombank Ltd v Cook (1962) 3 All ER 491.

HEARING

MELBOURNE
10:7:1992

Solicitors for the appellant: David Sonenberg and Associates

Counsel for the appellant: P. Searle

Solicitors for the first
and second respondents: Sheehan Privitelli

Counsel for the first and

second respondents: R. Greenberger

ORDER

THE COURT ORDERS THAT the appeal is dismissed.

Note: Settlement and entry of orders is dealt with by O.36 of the Federal Court Rules.

DECISION

This is an appeal from a judgment of a single judge given on 19 December 1991 dismissing an application, by which the appellant claimed, amongst other things, damages pursuant to section 82(1) of the Trade Practices Act 1974 ("the Act") for conduct alleged to have been in contravention of section 52 of the Act.

2. On 12 March 1991 it was ordered that each respondent file and serve a defence and any cross claim by 2 April. On 7 June it was ordered that defences be filed by 21 June. The applicant's solicitor received out of time an unsigned draft "Amended Defence" prepared on behalf of both respondents. No completed defence was ever served on the applicant or filed. On 2 August, it was ordered that "subject to any further order, the application be placed in the list of cases to be fixed for hearing not before 14 October 1991". In due course the application was fixed for hearing on 26 November. On 15 November the respondents' solicitor filed a Notice of Withdrawal.

3. On 26 November there was no appearance on behalf of the first respondent and the second respondent appeared in person. As we were informed on the hearing of the appeal, during the trial discussions occurred between counsel for the applicant and the second respondent with a view to his seeking to file a defence in court. However, these discussions came to nothing and the trial was conducted without any defence having been filed. We were informed that the evidence on behalf of the applicant was led and the second respondent did not give or call any evidence. Judgment was reserved.

4. On 19 December, judgment was delivered. The trial judge outlined the various causes of action pleaded by the applicant, the evidence led in support of them and his findings upon them. Reasons were given for the decision that the application be dismissed.

5. On 29 January 1992 the applicant filed a Notice of Appeal setting out the following grounds:

"1. His Honour the learned trial judge erred in law in failing
to apply the provisions of Order 11, rule 13 which provide
that an allegation of fact made by a party in his pleading
is deemed to be admitted by the opposite party unless it is
traversed by that party in his pleading, there being no
defence filed by either Respondent and no appearance by the
first Respondent.
2. His Honour the learned trial judge erred at page 14 of his
judgment where he found that various allegations had not
been admitted and that it was incumbent upon the Applicant
to prove the allegations, when the provisions of Order 11,
rule 13, deem the allegations to have been admitted.
3. Alternatively, in failing to apply the provisions of Order
11, rule 13, (if that were open to the learned trial judge
which is denied), the Appellant, has been denied natural
justice and a fair hearing in that issues which were not
open on the pleadings or in accordance with the
Federal Court Rules have been decided against the Appellant
without the Appellant having an opportunity to present
evidence or be heard on those issues.
4. Alternatively, if the foreshadowed oral defence referred to
by His Honour at page 4 of his judgment is a pleading, His
Honour the learned trial judge erred in law in failing to
find:-
(a) that the conduct pleaded in the Statement of Claim was
misleading or deceptive or likely to mislead or
deceive,
(b) that the representations pleaded in the Statement of
Claim were false and
(c) that the second Respondent's contention that his
conduct and representations were in his capacity as a
director of the first Respondent and not in his
personal capacity, is no defence to the allegations
made in paragraphs 24 and 25 of the Amended Statement
of Claim."

6. The orders sought in the Notice of Appeal were:

"1. The Order of His Honour Olney J. given on 19 December, 1991
be set aside.
2. The first Respondent pay to the Appellant damages in an
amount of $180,600 pursuant to s.82(1) of the Trade
Practices Act, 1974 for conduct of the first Respondent done
in contravention of sections 52 and 53 of the Trade
Practices Act, 1974 as alleged in paragraph 1 to 23 of the
Amended Statement of Claim.
3. The second Respondent pay to the Appellant damages in an
amount of $180,600 pursuant to s.82(1), s.87(1) or
s.87(2)(d) of the Trade Practices Act, 1974 for conduct of
the second Respondent in aiding, abetting or procuring or
otherwise being a party to the contraventions within the
meaning of s.75B(a) or (c) of the Trade Practices Act, 1974
as alleged in paragraphs 1 to 25 of the Amended Statement of
Claim.
4. Alternatively, the Respondents pay to the Appellant damages
in an amount of $180,600 for breach of duty as alleged in
paragraphs 26 to 34 of the Amended Statement of Claim.
5. Alternatively, the Respondents pay to the Appellant damages
for breach of contract in an amount of $54,600 as alleged in
paragraphs 35 to 41 of the Amended Statement of Claim.
6. The Respondents pay to the Appellant interest according to
Statute.
7. The Respondents pay to the Appellant the costs of this
appeal and of the hearing before His Honour Olney J.
together with reserved costs.
8. Such further or other orders as this Court deems fit."

7. Order 11 Rule 13 reads as follows:

"13(1) Subject to sub-rule (3) and to Order 43, rule 7 (which
deals with persons under disability), an allegation of fact made
by a party in his pleading is deemed to be admitted by the
opposite party unless it is traversed by that party in his
pleading or a joinder of issue under rule 14 operates as a denial
of it.
(2) A traverse may be made either by a specific denial or by a
statement of specific non-admission.
(3) Subject to sub-rule (4), every allegation of fact made in a
statement of claim or counterclaim which the party on whom it is
served does not intend to admit must be specifically traversed by
him in his defence or defence to counterclaim, as the case may be;
and a general denial of such allegations, or a general statement
of non-admission of them is not a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any
allegation as to the amount of damages is deemed to be traversed
unless specifically admitted."

8. On the hearing of the appeal counsel for the appellant submitted that the effect of Order 11 Rule 13 was that, the respondents having failed to file and serve a defence, all the allegations of fact in the Amended Statement of Claim should have been deemed to have been admitted by the respondents and judgment should have been entered for the applicant in the terms set out in the Notice of Appeal. Counsel conceded that this submission had not been made by him at the trial.

9. Counsel for the appellant referred to a number of cases decided under rules, which unlike those of this Court, contain provisions for judgment in default of appearance or delivery of a defence but they are of no assistance in construing the rules which are here applicable.

10. The grounds of appeal based upon Order 11 Rule 13 were, in my opinion, misconceived. That rule is part of Order 11 which deals with pleadings. It has the effect that where a defence has been filed and served, an allegation of fact made in the Statement of Claim which is not traversed in the defence is deemed to be admitted.

11. Rule 13 has no application in a case such as the present where no defence has been filed or served. The position was that on and after 22 June 1991, the respondents had failed to comply with an order of the Court directing them to take a step in the proceeding and the applicant was entitled under Order 10, Rule 7, to move the Court on notice for judgment or an order against the respondents. If it had done so, it would have been obliged to support its motion "by affidavit setting forth the facts relied upon" (see Order 19 Rule 1(2)). The facts would no doubt have included those relied upon to show the existence of the Court's jurisdiction.

12. The applicant did not choose to move the Court under Order 10, Rule 7, but was content to allow the matter to go to trial.

13. If any party is absent when the proceeding is called on for trial, it is governed by the provisions of Order 32 Rule 2, which read as follows:

"2(1) If, when a proceeding is called on for trial, any
party is absent, the Court may -
(a) order that the trial be not had unless the proceeding
is again set down for trial, or unless such other
steps are taken as the Court may direct;
(b) adjourn the trial;
(c) if the party absent is an applicant or cross-claimant
dismiss the action or the cross-claim; or
(d) proceed with the trial generally or so far as concerns
any claim for relief in the proceeding.
(2) Where the Court proceeds with a trial in the absence of
a party, and at or at the conclusion of the trial an order
is made, the Court, on motion by that party, may set aside
or vary the order, and may give directions for the further
conduct of the proceeding.
(3) Sub-rule (2) does not enable the Court to vary the
verdict, finding or assessment of a jury at a trial except
with the consent of each interested party present at the
trial."

14. The applicant asked the Court to proceed with the trial generally and led its evidence in support of the application, seeking such findings as were necessary to entitle it to the orders which it sought. It failed to obtain the necessary findings and the application was dismissed.

15. The Notice of Appeal did not challenge his Honour's findings of fact but relied upon the contention that by virtue of the provisions of Order 11 Rule 13 it was entitled to judgment. The fact that his Honour did not take this course, which the applicant did not ask him to follow, was said to vitiate the judgment. I do not agree and would dismiss the appeal.

16. Difficulties arose in the course of the trial from the fact that the respondents' solicitors had delivered to the applicant's solicitors a copy of a defence in an uncompleted form which was never filed. No completed defence was delivered and no notice was given that it had not been filed. At the trial the first respondent did not appear. Having been served with the Notice of Appeal the first respondent did nothing until the day before the hearing when an appearance was filed by solicitors in the appeal on behalf of both respondents and counsel appeared for them at the hearing.

17. In these circumstances, I would make no order as to costs.

The issue raised by this appeal is of narrow compass involving the proper meaning and application of O11 r13 of the Federal Court Rules. The facts giving rise to the appeal are somewhat unusual but can be stated in short form. Formally, the only material before the Full Court is that contained in the documents in the appeal book namely the amended application, the amended statement of claim, the reasons for judgment of the trial judge, the order appealed from and the notice of appeal. At the hearing of the appeal, counsel for the appellant asserted additional facts which were not disputed by counsel for the respondents.

2. By its application which was issued on 14 February 1991, the appellant claimed damages against the respondents. The claims were based upon alleged contraventions of the Trade Practices Act 1974, breach of contract and breach of various duties. A number of directions hearings were held at which the respondents were represented by their legal advisers, an appearance having been entered on their behalf by their solicitors. At a directions hearing held on 7 June 1991, the Court made an order that the respondents file and serve their defence on or before 21 June 1991. The respondents failed to comply with that order. The appellant did not, pursuant to O10 r7(1)(b) of the Federal Court Rules, move the Court for judgment against the respondents.

3. The respondents' solicitors, apparently, gave to the appellant's solicitors a draft defence in the form of a proposed defence. No defence was filed and no completed defence was served on the appellant's solicitors. For some unexplained reason, on 2 August 1991 the application was ordered to be placed in the list for a date to be fixed for hearing even though the matter was not ready for trial. On 19 September 1991 the parties were notified that the matter had been listed for hearing on 26 November 1991. On 6 November 1991, the respondents' solicitors notified the appellant's solicitors that they were no longer acting for the respondents and on 15 November 1991 notice of their withdrawal was filed. When the matter came on for hearing on 26 November 1991, the first respondent did not appear. The second respondent appeared in person. Counsel for the appellant discovered that the respondents had not filed any defence and thus had failed to comply with the order of the Court made on 5 July 1991.

4. What occurred at the trial can best be described by the following extract from the reasons for judgment of the trial judge:

"The applicant claims to be entitled to judgment by default
against the first respondent. The default of the respondents in
filing a defence entitled the applicant pursuant to Order 11 Rule
23(1) of the Federal Court Rules to move on notice for judgment
against them. As no such application was made, there is no basis
for the Court to enter judgment by default.
Upon the first respondent failing to appear when the proceeding
was called on for trial the Court had a number of options open to
it pursuant to Order 32 Rule 2(1), one of which was to proceed
with the trial generally, which is what occurred."

5. Some general comments are made. Counsel for the appellant did not make reference to O10 r7(1)(b). The reference in the reasons to O11 r23(1) seems to be inappropriate since that rule applies where a party is in default in filing and serving any pleading "as required by this Order". Order 11 rr19 to 22 contain times for pleadings "unless the Court otherwise orders". In this appeal the Court had otherwise ordered, see the order of 5 July 1991. In any event, the procedure is the same. The relevant rule empowers the party not in default to "move the Court on notice". The procedure to be followed is set out in O19. In this case, it appears that the appellant elected not to seek an adjournment in order to move the Court for judgment in default. The appellant elected pursuant to O32 r2 to proceed with the trial in the absence of the first respondent and in the presence of the second respondent who appeared in person.

6. The appellant called evidence in support of its claims. The second respondent neither gave evidence nor called evidence on his behalf. The hearing concluded on the date it commenced, namely 26 November 1991. The Court reserved its judgment.

7. On 19 December 1991 the Court ordered that the application be dismissed and published its reasons for so doing. Essentially, the reasons for dismissal were that the applicant had failed to prove its case.

8. The appellant has appealed from the order of 19 December 1991. The notice of appeal lists 5 grounds of appeal but the essential substance of the grounds is that the trial judge erred in law in failing to apply the provisions of O11 r13 "which provide that an allegation of fact made by a party in his pleading is deemed to be admitted by the opposite party unless it is traversed by that party in his pleading, there being no defence filed by either Respondent and no appearance by the first Respondent."

9. It is noted earlier in these reasons that counsel for the appellant did not refer to O11 r13 at the trial of this matter. In these circumstances, it is a nice question whether the appellant can raise the issue on appeal. I do not stop to decide this question.

10. Order 11 is headed "Pleadings" and contains two Divisions headed "Division 1 - General" and "Division 2 - Progress of Pleadings" respectively. Division 1 comprises Rules 1 to 18 and Division 2 comprises Rules 19 to 23. For the purposes of this appeal, reference need be made to Division 1 only.

11. The rules comprising Division 1 of O11 direct attention to the form of pleadings and consequences resulting from some forms of pleadings. Thus under r1 pleadings are to be divided into paragraphs and numbered consecutively. Under rules 2, 3 and 4, pleadings shall contain a statement in a summary form of the material facts and shall be as brief as the nature of the case permits. Under rules 5 and 6, presumed facts need not be pleaded nor is it necessary to make a general allegation of the fulfilment of a condition precedent to a right of action. It is not necessary to make specific reference to rules 7 to 12 and 14 to 18. Rule 13 is set out in full:

"13(1) Subject to sub-rule (3) and to Order 43, rule 7
(which deals with persons under disability), an allegation of fact
made by a party in his pleading is deemed to be admitted by the
opposite party unless it is traversed by that party in his
pleading or a joinder of issued under rule 14 operates as a denial
of it.
(2) A traverse may be made either by a specific denial or by a
statement of specific non-admission.
(3) Subject to sub-rule (4), every allegation of fact made in a
statement of claim or counterclaim which the party on whom it is
served does not intend to admit must be specifically traversed by
him in his defence or defence to counterclaim, as the case may be;
and a general denial of such allegations, or a general statement
of non-admission of them is not a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any
allegation as to the amount of damages is deemed to be traversed
unless specifically admitted."

12. A statement of claim is a pleading within the meaning of that word in Division 1 of O11. So is a defence. A defence must be in writing and must comply with the requirements of rules 1, 2, 3 and 4. In r11, the words "unless it is traversed by that party in his pleading" makes it clear that the rule is referring to the written document of a party. Rule 13 can have no application where no pleading is in existence.

13. Pleadings are designed to define the issues raised between parties to an action in court. In this context, O11 r13 makes it clear that if any party does not admit or does not deny an allegation of fact contained in the pleading of an opposite party, that fact is deemed to be admitted with the result that that fact need not be proved by evidence at the trial. If no defence is filed to a statement of claim, the absence of the defence cannot constitute an admission of the facts alleged in the statement of claim. There is no defence and thus there is nothing in existence on which O11 r13 can operate.

14. This is the short and very clear answer to the appeal. In the absence of a defence being filed, O11 r13 has no application. Here no defence had been filed by either respondent, therefore O11 r13 could not have any application at the trial of the application. The respondents had failed to comply with an order of the Court. The appellant elected not to move the Court for an order based upon O10 r7(1)(b).

15. The appeal should be dismissed.

16. At the hearing of the appeal, the two respondents were represented by the one counsel. Once again, however, the respondents have not followed the usual practice of the Court. In the original application, their solicitors gave notice of withdrawal just before the trial was due to commence in circumstances where the appellant could have been mislead into believing that a defence had been filed. As a result, when the trial commenced, counsel for the appellant was placed in an invidious position. He had to make an election. He elected to proceed with the hearing of the application. Notices of appeal were served on the respondents. The first respondent did not enter an appearance. The second respondent appeared in person. Two days before the appeal was to be heard, solicitors entered an appearance on behalf of the respondents. At the hearing, the respondents were represented by the one counsel who submitted that if the appeal was dismissed, the Court should order that the appellant pay the respondents' costs of the appeal.

17. Conduct of the kind engaged in by the respondents should not be encouraged. They have blown hot and cold and to a large extent have made a mockery of the procedure and practice of the Court. The trial Judge refused to make an order that their costs of the trial be paid by the appellant. In my opinion the Full Court should express its disapproval of conduct of the kind engaged in by the respondents. The Court should express its disapproval by making no order as to costs.

This appeal is from a single judge of the Federal Court of Australia, who dismissed the appellant's application, without ordering the appellant to pay any costs to the respondents. In its application, the appellant claimed damages against the first respondent pursuant to s. 82 of the Trade Practices Act 1974, for conduct allegedly in contravention of ss. 52 and 53 of that Act, damages against the second respondent for aiding, abetting or procuring or otherwise being a party to those alleged contraventions, damages for "breach of duty", damages for breach of contract and interest. The application was filed on 14th February 1991 and accompanied by a statement of claim. An amended statement of claim was filed subsequently.

2. On 4th March 1991, a firm of solicitors filed a notice of appearance on behalf of both respondents. On 12th March 1991, Jenkinson J. ordered that each respondent file and serve, inter alia, a defence on or before 2nd April 1991. No defence was filed in compliance with this order. Instead, the respondents applied by notice of motion on 10th April 1991, seeking orders that the appellant provide security for costs and that the statement of claim be struck out pursuant to O. 11 r. 16 of the Federal Court Rules. The motion was heard by Heerey J. on 7th June 1991. It was dismissed with costs. At that stage, his Honour directed that the respondents file and serve a defence on or before 21st June 1991. No defence was filed pursuant to that order. On 2nd August 1991, an order was made that the application be placed in the list of cases to be fixed not before 14th October 1991. Subsequently, the hearing was fixed for 26th November 1991.

3. On 15th November 1991, the solicitors for the respondents filed a notice of their withdrawal. It was not suggested that this withdrawal was improper, or that they had failed to comply with the rules dealing with the withdrawal of a practitioner.

4. At the trial, counsel appeared for the appellant. The second respondent appeared in person. On being asked by the learned trial judge about representation of the first respondent (the name of which indicated that it was a company), the second respondent stated that he was a director of the first respondent but that he did not seek to appear for or in any way represent the first respondent.

5. At the trial, counsel for the appellant was in possession of a document which purported to be a defence of both respondents and which had apparently emanated from the respondents' former solicitors. No such defence had ever been filed. The learned trial judge apparently questioned the second respondent as to those parts of the document which appeared to relate to his case. It appears that, in the course of the day, a document was prepared which could have constituted a defence of the second respondent. The document which counsel for the appellant had in his possession was apparently used as the basis for this document. The second respondent, however, did not accept the invitation of the learned trial judge to file this document. In the result, the trial was conducted without any defence having been filed.

6. The trial proceeded and was completed on the day on which it began. One of the options open to the learned trial judge under O. 32 r. 2 of the Federal Court Rules, when a party was absent at the time the proceeding was called on for trial, was to proceed with the trial generally. No complaint is made about the fact that his Honour so proceeded.

7. His Honour reserved his judgment, which was delivered on 19th December 1991. In that judgment, he found that the appellant had failed to prove that the first respondent was a corporation within the meaning of the Trade Practices Act 1974, as defined in s. 4(1), namely a foreign corporation, a trading corporation or a financial corporation formed within the limits of Australia, a body incorporated in a territory, or a holding company of a foreign corporation or of a trading or financial corporation formed within the limits of Australia or of a body corporate incorporated in a territory. In the absence of proof of this issue, the claims under the Trade Practices Act 1974 against the first respondent could not succeed. Nor could the claims against the second respondent under the Trade Practices Act 1974, since those claims depended upon the first respondent being liable and the second respondent having aided, abetted, procured or otherwise been a party to the first respondent's conduct, within the meaning of s. 75B of the Act. The judgment dealt at some length with the appellant's claims under the common law, and the learned trial judge found that those claims had not been proved. His Honour also held that there was no justification for making any order for costs in favour of the respondents, because they had defaulted in their obligation to file their defences.

8. The appellant's notice of appeal was based heavily upon the proposition that the learned trial judge erred in law by not applying O. 11 r. 13(1) of the Federal Court Rules and treating as admitted all of the allegations made in the amended statement of claim. It was assumed that, had his Honour adopted this course, it would have led to judgment in the appellant's favour. Counsel for the appellant conceded that he had not put this argument to the learned trial judge. He also attempted to argue that his Honour should have found on the evidence that the first respondent was a corporation for the purposes of the Trade Practices Act 1974, and should then have proceeded to consider the claims made under that Act against both respondents.

9. It is convenient to set out the whole of O. 11 r. 13 of the Federal Court Rules:

"(1) Subject to subrule (3) and to Order 43, rule 7 (which deals
with persons under disability), an allegation of fact made by a
party in his pleading is deemed to be admitted by the opposite
party unless it is traversed by that party in his pleading or a
joinder of issue under rule 14 operates as a denial of it.
(2) A traverse may be made either by a specific denial or by a
statement of specific non-admission.
(3) Subject to subrule (4), every allegation of fact made in a
statement of claim or counterclaim which the party on whom it is
served does not intend to admit must be specifically traversed by
him in his defence or defence to counterclaim, as the case may be;
and a general denial of such allegations, or a general statement
on non-admission of them is not a sufficient traverse of them.
(4) Any allegation that a party has suffered damage and any
allegations as to the amount of damages is deemed to be traversed
unless specifically admitted."

This rule appears in the context of a series of rules dealing with the form of pleadings, which constitute Division 1 of O. 11. Within O. 11 r. 13 itself, there are to be found specific provisions as to the form which pleadings must take. It does not appear on the face of the rule that it is designed to apply to a case in which there is no defence at all. Rather, the rule appears to convey that an allegation in a statement of claim will be deemed to be admitted if the opposite party does not traverse it (either denying or not admitting it) in its pleading. It presupposes that the opposite party will file and serve a pleading.

10. Despite this context, there are authorities to the effect that the equivalent of O. 11 r. 13(1) in the rules of other courts operates to deem all allegations in a pleading to be admitted in the absence of any pleading by the opposite party. See National Bank of Australasia v. Cohen (1896) 22 VLR 269, at p 270, Cribb v. Freyberger (1919) WN 22, Nixon v. W. Phelan and Son Pty. Ltd. (1959) VR 83, at p 84 and Lombank Ltd. v. Cook (1962) 3 All ER 491, at p 498. Each of these cases was decided in the context of a rule permitting a party to move for judgment in default of defence and providing "such judgment shall be given as, upon the writ or statement of claim, the Court or a Judge shall consider the plaintiff to be entitled to". The equivalent provisions in the Federal Court Rules are O. 10 r. 7 and O. 11 r. 23. Order 10 r. 7 provides as follows:

"(1) Where a party fails to comply with an order of the Court
directing that party to take a step in the proceeding, any other
party may move the Court on notice:
(a) if the party in default is an applicant - for an order
that the proceeding be stayed or dismissed as to the
whole or any part of the relief claimed by him in the
proceeding;
(b) if the party in default is a respondent - for judgment
or an order against him; or
(c) for an order that the step in the proceeding be taken
within the time limited in that order."
(2) The Court may make an order of the kind mentioned in sub-
rule (1) or any other order or may give such directions, and
specify such consequences for non-compliance with the order, as
the Court thinks just.
(3) This rule does not limit the powers of the Court to punish
for contempt."

11. Order 11 r. 23 provides as follows:

"(1) Where a party is in default in filing and serving any
pleading as required by this Order, any other party may move the
Court on notice:
(a) if the party in default is an applicant - for an order
that the proceeding be stayed or dismissed as to the
whole or any part of the relief claimed by him in the
proceeding;
(b) if the party in default is a respondent - for judgment
or an order against him; or
(c) for an order that pleadings be filed and served within
the time limited in the order.
(2) The Court may make an order of the kind mentioned in subrule
(1) or any other order or may give such directions, and specify
such consequences for non-compliance with the order, as the Court
thinks just.
(3) This rule does not limit the powers of the Court to punish
for contempt."

It will be noted that the former of these provisions would have enabled the appellant to move for judgment, the respondents having failed to comply with the order made on 7th June 1991 for the filing of defences. Order 11 r. 23 is applicable if the timetable laid down in Division 2 of O. 11 is applicable, but there is default in filing and serving a pleading as required by that timetable. In his judgment, the learned trial judge drew attention to the fact that the appellant had not moved for judgment in default of the filing and serving of a defence.

12. I have considerable doubt whether O. 11 r. 13(1) can have the same effect as the equivalent provision in other rules of court. There is no equivalent in O. 10 r. 7, or in O. 11 r. 23, to the words "such judgment shall be given as, upon the writ or statement of claim, the Court or a Judge shall consider the plaintiff to be entitled to". The procedures in this Court differ from those in courts whose rules were based on the English rules of court. There are no provisions in this Court for the automatic entry of judgment in default of appearance. Instead, O. 4 r. 5 of the Federal Court Rules requires an application to bear a note that a respondent will be liable to suffer judgment or an order against him if there is no attendance on his behalf on the return date. The form of application, being Form 5 in the first schedule to the Rules, reflects this requirement. There is no provision for the automatic entry of judgment in default of delivery of a defence. Pleadings are filed as well as served. Order 10 of the Rules provides for directions hearings. The practice of the Court is that the interlocutory stages of proceedings are conducted according to directions given at one or more directions hearings. If an occasion arises for a party to move for judgment under O. 10 r. 7, or O. 11 r. 23, O. 19 rr. 1 and 2 require that the motion be by notice and be supported by an affidavit, setting forth the facts relied upon. This Court is a court of limited jurisdiction. No judgment can be given unless the Court is satisfied that it has jurisdiction. At the very least, an affidavit supporting a motion for judgment, where no defence has been filed and served, would need to provide evidence on which the Court could be so satisfied. I am inclined to the view that affidavit evidence proving the facts necessary to entitle the party moving the Court to judgment would also be necessary.

13. In any event, the appellant in the present case did not adopt the course of moving for judgment under O. 10 r. 7. Because of the failure of the respondents to deliver their defences, that course would have been open at any time. Counsel for the appellant was under a misapprehension that a defence had been filed until a time shortly after the beginning of the trial. Because of the events which occurred at the trial, counsel for the appellant no doubt remained optimistic that a defence on behalf of the second respondent would be filed during the course of the day. This did not happen. Instead of electing to proceed by way of motion for judgment, counsel for the appellant elected to proceed by way of trial. Possibly because of the form of the document which he thought was the defence of both respondents, he did not lead the evidence necessary to prove the appellant's claims. Order 11 r. 13 could not have been called in aid to absolve the appellant from the necessity to prove its case at the trial by oral evidence.

14. The argument that the learned trial judge erred in refusing to find that the first respondent was a corporation for the purposes of the Trade Practices Act 1974 was based on the proposition that the learned trial judge did find, for the purposes of the common law claims, that the first respondent was a corporation. He did so because an appearance had been entered on behalf of the first respondent in what was obviously a corporate name, and there was tendered to his Honour as evidence an affidavit sworn by the second respondent, in which he claimed to be a director of the first respondent and asserted his authority to swear the affidavit on behalf of the first respondent. This evidence was undoubtedly sufficient to support a finding that the first respondent was a body corporate. It did not, however, extend to proving the other elements of the definition of a "corporation" in s. 4(1) of the Act. It was the deficiency in the proof of these other elements that led his Honour to hold that the appellant had failed to prove its case in that respect. The appeal book does not contain any of the evidence that was led before his Honour. This Full Court is not in a position to say that his Honour erred by failing to have regard to some other evidence about the nature of the corporation. The appellant cannot succeed on this ground.

15. For the above reasons I should dismiss the appeal. I have had the privilege of reading the reasons for judgment of Northrop J. in draft form. I agree with what his Honour has said about the question of the costs of the appeal. For those reasons, I should make no order as to costs.