Defaults are Expensive, Emails are Free

In an application for setting aside a default judgment, Master Mossop, considered an expanded test including what notice the Plaintiff notify the Defendant before filing for default judgment. Stormer Building Group v Johnson [2014] ACTSC 23 considered the implications of a hastily filed default application in instances where no correspondence had been received from the Defendant.

r1128 creates a general discretion for the setting aside and the Court generally follows Evans v Bartlam [1937] AC 473 at 480 which confirms that the discretion is unfettered. The Master continued to set out the usual test:

In Ryan v Adams (1993) 112 FLR 474 at 476, Miles CJ said of the relevant principles that, “As far as this Court is concerned, the most authoritative pronouncements are those in the Federal Court in Davies v Pagett (1986) 10 FCR 226.”
11. In that case, the Court noted that the trial judge had set out a summary of the principles from Lord Wright’s speech in Evans v Bartlam, and then adopted the trial judge’s summary of the relevant considerations as follows:
1. The length of the delay between the time for delivery of defence and the date of interlocutory judgment. On this aspect, the giving of notice of intention to apply for judgment may be a relevant factor.
2. The length of delay between the entering of such judgment and the application to set it aside.
3. The reasons for such delay. The defendant’s own contribution to the delay, as contrasted with the delay caused by his legal advisers, may fall for consideration.
4. The evidence as to whether or not the defendant may have a defence? The probability of a successful defence need not be demonstrated, and the fact that a defendant’s case may appear weak, will seldom be a bar.
5. Whether the plaintiff will be prejudiced by setting the aside the judgment, the nature of the prejudice being such that it cannot adequately be compensated by an order for costs.

Refshauge J in part of the Ezekial-Hart v Law Society saga tacked on the judgment of Wallace J in Pope v Aberdeen Transport Co Pty Ltd [1965] NSWR 1550 at 1551 where his Honour said:

I think that where the party signing judgment does so without giving warning of its intention to do so, such party will generally, though perhaps not invariably, be in difficulties on a summons to set aside the judgment where a defence on the merits is disclosed.

Long story short, this additional test has the effect of adding the impetus to the party seeking the apply for default to warn the other side before applying, especially when the application is made so soon to the expiry date for filing. The filling of a defence is not the same as the disclosure required by Ezekial-Hart. In these circumstances, where knowledge of a defence can be constructed, practitioners will have a harder time of explaining why no contact was made.

From a policy point of view, default judgments are relatively simple to have overturned. Hence a hastily applied for default creates more time and expense to the parties and the court as opposed to a simple email or even just allowing a bit of time to pass.

Despite the eagerness of the Plaintiff, there was still a delay on the part of the Defendant in filing to set aside the judgment, and for this the Plaintiff was awarded costs with a pretty accelerated timetable for the Defendant to file their defence, evidence etc.

Failing to communicate intended actions is also possibly a breach of solicitors rules, but in the case of Stormer it was definitely short of this, and frankly 99% of the time it will be too. That being said, it is difficult not to froth at the mouth when the time for filing passes, but do try to resist the temptation, and send a quick email clearly setting out the intended action and possible consequences, particularly when involved with a self-rep.

Masterful Name Change

Trap for young players…

On 7 April 2015, the Courts Legislation Amendment Act 2015 was notified meaning that amongst a number of other changes from 21 April, the “Master” is retitled as “Associate Judge” in the ACT Supreme Court.

Mostly a practicality, this move recognises the nature of the role of the Master and how the differences between the expertise of the Master and the Judges has all but eroded, and reading the judgments of the Master, you’d be hard pressed to tell the difference. The change in title follows a recent trend of similar changes in Canada and Victoria.

Masters, or Benchers (Masters of the Bench) is a position that dates back to at least the 12th century courts of England. The Master traditionally handled procedural matters and can be found in most Common Law jurisdictions around the world. In Australia, the role was utilised to cut down on the workload of Judges and were given jurisdiction over simpler civil matters. Eventually the simpler aspect was cut out and Masters became civil specialists.

The full title “Associate Judge” is required but “Your Honour” will suffice as usual. Whilst I’m at it the applicable abbreviation is now “AsJ”.

I completely appreciate that “Marvellous Master Mossop” rolls off the tongue in a touch of alliteration that would make Dr Suess chortle, but “Associate Judge” is the new nomenclature and young players would do well to remember it.

Practitioners have proven slow to acknowledge the new title in practice. Even Registrars still stumble over the new title, often reverting back to the old title and in the past month I’ve seen a decent handful of consent orders, submissions and whatever else that still refer to the Associate Judge as the Master. Learned habits are hard to forget and the old dogs who have said and written Master for the last 30 years will have a hard time adapting. Law, like most worthwhile endeavours, depends largely on the power to adapt. In this case it won’t be fatal if you use the wrong title, but you will still look like a tit and frankly why risk offending a judicial officer…ever.

The only other major change that practitioners will need to be mindful of is the from now on appeals from the Associate Judge will need to go before the Court of Appeal, no longer a single Judge. A great move for efficiency that will no doubt be well received in the Territory.

So youngsters, avoid the trap, and repeat “the Associate Judge’s Associate associates with Judge’s Associates” in the mirror until your tongue turns blue.