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Bendigo and Adelaide Bank Ltd v Scriven

 

[2020] QSC 43

SUPREME COURT OF QUEENSLAND

CITATION:

Bendigo and Adelaide Bank Limited v Scriven [2020] QSC 43

PARTIES:

BENDIGO AND ADELAIDE BANK LIMITED (ACN 068 049 178)

(respondent / plaintiff)

v

SAM CHESTER SCRIVEN

(applicant / defendant)

FILE NO/S:

BS No 12280 of 2015

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

13 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

21 January 2020

JUDGE:

Davis J

ORDER:

  1. The application filed 14 October 2019 is dismissed.
  2. The application filed 14 November 2019 is dismissed.
  3. The defendant shall pay the plaintiff’s costs of the applications, including reserved costs, on the standard basis.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – SETTING ASIDE – GENERALLY – where defendant makes application to set aside a judgment entered into upon default of defence – where  defendant only submits that the judgment was irregularly entered – where defendant filed conditional notice of intention to defend – where defendant submits that an application filed was an application for an order under r 16 and was made within 14 days of filing the conditional notice of intention to defend – where the application filed by the defendant was not an application for an order under r 16 – where no application (pursuant to r 16 or otherwise) was made within 14 days of the filing of the conditional notice of intention to defend – whether the default judgment was irregularly entered

Acts Interpretation Act 1954, s 7, s 35C(1)

Farm Business Debt Mediation Act 2017

Supreme Court Rules, O 12, r 1, r 22

Uniform Civil Procedure Rules 1999, r 16, r 22, r 31, r 32, r 144, r 149, r 157, r 161, r 281, r 282, r 283, r 284, r 285, r 286, r 287, r 290, r 371, r 967, r 968, r 969, r 969A

Byrnes v Kendle (2011) 243 CLR 253, cited

Cusack v De Angelis [2008] 1 Qd R 344, cited

McIntosh & Anor v Maitland & Ors [2016] QSC 203, cited

National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441, cited

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, followed

R v A2, R v Magennis, R v Varizi (2019) 93 ALJR 1106, followed

UBS AG v Tyne (2018) 92 ALJR 968, cited

Venz v Moreton Bay Regional Council (formerly Caboolture Shire Council) [2009] QCA 224, followed

Vosmaer v Spinks [1964] QWN 36, cited

COUNSEL:

The defendant/applicant appeared by telephone through his wife

MD Byres for the plaintiff/respondent

SOLICITORS:

The defendant/applicant appeared for himself

Corrs Chambers Westgarth for the plaintiff/respondent

  1. [1]
    The defendant makes application to set aside a judgment entered into upon default of defence[1] on 4 November 2019.
  2. [2]
    On 14 November 2019, the defendant filed his application to set aside the default judgment[2] together with a notice proposing the application be decided without oral hearing.[3]  At the same time, he filed an affidavit sworn by him and submissions.  The plaintiff was content for the application to be determined without oral hearing, but on 22 November 2019 Ryan J ordered to the contrary.  The matter came before me on 21 January 2020 for hearing.
  3. [3]
    The defendant did not appear on the application but a Mr Jensen purported to appear for him.  Mr Jensen is not a lawyer and had no right to appear.  He asserted that I should hear him on the defendant’s behalf as he held a power of attorney from the defendant.
  4. [4]
    I refused to hear Mr Jensen but had the bailiff telephone the defendant.  That proved partially successful as I spoke to the defendant’s wife.  It was obvious to all in court that the defendant was in the same room as his wife and was talking to her, although he did not come to the telephone. 
  5. [5]
    The defendant, through his wife, expressed the view that he was content for me to determine the application without oral hearing.  On the material before me, I could see no reason not to determine the matter on the papers.[4]  The plaintiff supported that course of action.  To facilitate the determination of the application on the papers, I made the following orders.

“1 The defendant’s application filed on 14 November 2019 is adjourned.

2 The application will be determined without oral hearing and upon consideration of written submissions and material filed by the parties.

3 If the defendant wishes to rely on further written submissions, those submissions must be filed and served by 4.00 pm on 28 January 2020.

4 If the plaintiff wishes to respond to any further written submissions received from the defendant, those submissions must be filed and served by 4.00 pm on 4 February 2020.”[5]

  1. [6]
    In due course, further submissions were received from both parties.

Background

  1. [7]
    The plaintiff is a bank who lent money to the defendant who is a farmer.  Proceedings were commenced by the plaintiff by claim and statement of claim served on the defendant on 24 December 2015.  What was claimed was money due on two loan facilities, recovery of possession of land which was mortgaged to secure the debts, and other relief which is not relevant to the present application.
  2. [8]
    After service of the claim, there were negotiations between the parties and a mediation was conducted pursuant to the Farm Business Debt Mediation Act 2017.  That mediation was unsuccessful.  There was further interaction between the parties which is not relevant to the present application.  On 5 November 2018, the plaintiff informed the defendant that while it did not at that time have an intention to apply for default judgment, it reserved the right to do so on 14 days’ notice to him.
  3. [9]
    Notice of that intention was given on 12 September 2019.  On 24 September 2019, the defendant wrote to the plaintiff seeking further and better particulars of the claim and statement of claim.  On 25 September 2019, the defendant filed a document titled “Conditional Notice of Intention to Defend”.  That asserted that the proceedings were irregular and gave reasons as follows:

“1. The issues relating to the parties are unclear and they fail.

  1. In spite of numerous requests for information the Plaintiff fails to provide Sam Chester Scriven with information to clarify this.
  1. The information and details of the claimed contracts/ agreements and the identities of the actual parties to the claimed contracts/agreements are issues that need to be explored in detail in order for Sam Chester Scriven to properly deal with a defence.”
  1. [10]
    Once the conditional notice of intention to defend was filed, r 144 of the Uniform Civil Procedure Rules 1999 (UCPR) was engaged.  That rule is:

144 Conditional notice of intention to defend

  1. (1)
    This rule does not apply to a defendant objecting to the starting of a proceeding in a district of a court other than in accordance with rule 35.
  1. (2)
    A defendant who proposes to challenge the jurisdiction of the court or to assert an irregularity must file a conditional notice of intention to defend.
  1. (3)
    Rule 139(1)(b)[6] does not apply to a conditional notice of intention to defend.
  1. (4)
    If a defendant files a conditional notice of intention to defend, the defendant must apply for an order under rule 16 within 14 days after filing the notice.
  1. (5)
    The conditional notice of intention to defend becomes an unconditional notice of intention to defend if
  1. (a)
    the defendant does not apply for an order under rule 16 within the 14 days; or
  1. (b)
    for a defendant who applies for an order under rule 16 within the 14 days—the application is determined and the order is not made.
  1. (6)
    Within 7 days after a conditional notice of defence becomes an unconditional notice of intention to defend, the defendant must file a defence.
  1. (7)
    A defendant who files an unconditional notice of intention to defend is taken to have submitted to the jurisdiction of the court and waived any irregularity in the proceeding.” (emphasis added and legislative notes deleted)
  1. [11]
    Rule 144 refers to r 16[7] which is in these terms:

16 Setting aside originating process

The court may—

  1. (a)
    declare that a proceeding for which an originating process has been issued has not, for want of jurisdiction, been properly started; or
  1. (b)
    declare that an originating process has not been properly served; or
  1. (c)
    set aside an order for service of an originating process; or
  1. (d)
    set aside an order extending the period for service of an originating process; or
  1. (e)
    set aside an originating process; or
  1. (f)
    set aside service of an originating process; or
  1. (g)
    stay a proceeding; or
  1. (h)
    set aside or amend an order made under rule 127; or
  1. (i)
    make another order the court considers appropriate.”

(emphasis added)

  1. [12]
    Rule 127 to which reference is made in r 16(h) is:

127 Court’s discretion whether to assume jurisdiction

  1. (1)
    On application by a person on whom an originating process has been served outside Australia, the court may dismiss or stay the proceeding or set aside service of the originating process.
  1. (2)
    Without limiting subrule (1), the court may make an order under this rule if satisfied—
  1. (a)
    service of the originating process is not authorised by these rules; or
  1. (b)
    the court is an inappropriate forum for the trial of the proceeding; or
  1. (c)
    the claim has insufficient prospects of success to warrant putting the person served outside Australia to the time, expense and trouble of defending the claim”
  1. [13]
    By force of r 144 of the UCPR, if no application under r 16 was made by the defendant within 14 days after filing the conditional notice of intention to defend, then the notice of intention to defend became an unconditional notice of intention to defend after 9 October 2019 and the defendant was required to file a defence by 16 October 2019.
  2. [14]
    On 7 October 2019, the defendant purported to file an application, a notice proposing an application without oral hearing, an affidavit sworn by him and some written submissions.  Copies of those documents were emailed both to the court and to the plaintiff’s solicitors.[8]  The application sought the following relief:

“1 That Pursuant to rule 16(i) of the Uniform Civil Procedure Rules 1999 (Qld), the Plaintiff is directed to provide Further and Better Particulars of their Statement of Claim as outlined in the defendant’s Request for Further and Better Particulars served on 24 September 2019 and that is exhibited as SCS-2 to the affidavit of Sam Chester Scriven sworn 6th October 2019.

  1. The costs of and incidental to this application be reserved.
  1. Make such further and other orders the court may consider appropriate under the circumstances.”
  1. [15]
    The filing of those documents by email was rejected by the registrar.  The documents were then posted to the court on 8 October 2019.  They arrived in the court’s post office box on 9 October and were physically received in the court registry on 10 October 2019.  The documents were stamped as filed on 14 October 2019 and the application was listed before a judge for determination without oral hearing on 5 November 2019.
  2. [16]
    On the request of the plaintiff,[9] the registrar entered judgment by default on 4 November 2019.  The judgment is in these terms:

“1 The Defendant, Sam Chester Scriven, pay to the Plaintiff the amount of $1,772,674.72, including $474,147.42 interest to today and $2,823.90 costs.

2 The Plaintiff recover as against the Defendant, Sam Chester Scriven, possession of that piece or parcel of land described as Lot 2 on Registered Plan 195461, situated in the County of Belmore, Parish of Maroungle, being the whole of the land contained in Title Reference 17028242.”

  1. [17]
    The judgment was entered pursuant to rules 283, 286 and 287, which are all part of Chapter 9, Part 1, Division 2.  Of significance, r 281(2)[10] is in these terms:

281 Application of div 2

  1. (2)
    This division also applies if a defendant in a proceeding started by claim files a conditional notice of intention to defend that becomes an unconditional notice of intention to defend and the defendant does not file a defence within the time required under rule 144(6).”
  1. [18]
    On 14 November 2019, the defendant made application to set aside the judgment and seek other relief.  That is the application presently before me.  The application is in these terms:

“1. That the default judgement in favour of the Plaintiff on 4th November 2019 be set aside on the basis of an irregularity of the Uniform Civil Procedure Rules 1999 (Qld).

  1. That the Defendants[11] application under rule 16 be re-listed for a no-oral hearing.
  1. The costs of and incidental to this application be reserved.
  1. Make such further and other orders the court may consider appropriate under the circumstances.”
  1. [19]
    A defendant who suffers judgment by default may apply to set the judgment aside on one of two grounds.  Firstly, the defendant may show that the judgment was irregularly entered.  In those circumstances, there is no exercise of discretion, the judgment must simply be set aside.[12]  Secondly, the defendant may appeal to discretion where a judgment is regularly entered.  In those circumstances, provided the defendant can explain the delay in filing a notice of intention to defend and demonstrate that there is an arguable defence, a discretion arises to set aside the judgment.[13]
  2. [20]
    Here, the defendant does not appeal to discretion.  The defendant submits, and only submits, that the judgment was irregularly entered and he has a right to have it set aside.
  3. [21]
    The defendant has made detailed written submissions.  He submits that the application which he filed in October 2019 was an application “for an order under r 16”,[14] it was made within 14 days of filing the conditional notice of intention to defend and therefore the notice did not become unconditional.  The right to enter default judgment, the defendant submits, did not arise.  Therefore, he submits, the default judgment was irregularly entered.
  4. [22]
    Those submissions raise the following issues:
    1. (a)
      Was the application which was emailed and later posted to the court an application “for an order under rule 16”?[15]
    2. (b)
      Was the application made when it was emailed to the court or alternatively when it was received into the court’s post office box or later? 
    3. (c)
      Did the Registrar have jurisdiction to decide that:
      1. the application was not an application “for an order under rule 16”; or
      2. that the application was not made within 14 days of filing the conditional notice of intention to defend?

Was the application which was filed an application “for an order under r 16”?

  1. [23]
    Rule 16 identifies nine orders which the court may make on an application brought under it.  They are (a) to (i) of the rule.  The defendant has clearly not made an application for orders under any of paragraphs (a)-(h).  The application which was made sought an order for delivery of particulars and, on its face, it purported to be made “pursuant to r 16(i)”. 
  2. [24]
    Taken literally, any application for any order could fall within r 144 once it is understood that r 16 authorises the making of any “other order”.  Regard must be had to the ordinary meanings of words and phrases.[16]  The words though must be considered in the context of the statute (or instrument) as a whole, and with regard to its purpose and the mischief sought to be addressed.[17] 
  3. [25]
    Rule 16 is contained in Chapter 2 of the UCPR and r 144 is contained Chapter 5.
  4. [26]
    Chapter 1 of the UCPR, headed “Preliminary” contains a number of rules identifying the short title to the Rules, their date of commencement, the dictionary, the fact that parties must be named in the proceedings and a statement of the philosophy of the rules.  That is contained in r 5 and is an important provision which informs the interpretation and application of the rules.[18]
  5. [27]
    Chapter 2 is headed “Starting proceedings”.  The jurisdiction of the court is engaged once proceedings are commenced in the court and served.  Chapter 2 contains a number of provisions which dictate how the court’s jurisdiction may be engaged.  Against that background, r 16 is entitled “Setting aside originating process”.[19]
  6. [28]
    Chapter 2 provides that proceedings may be commenced by “claims” or “applications”.  Chapters 3 and 4 then deal with claims and applications respectively.  Chapter 5, in which r 144 is contained, contains rules regarding “notice of intention to defend”.  By these provisions, a defendant files a notice and effectively submits to the jurisdiction of the court.  Rule 144 creates a procedure whereby a defendant may challenge the jurisdiction of the court without firstly submitting to the jurisdiction by filing a notice of intention to defend.[20]  By r 144, a defendant may file a conditional notice of intention to defend.
  7. [29]
    The heading for r 16 is “Setting aside originating process”.  The plaintiff submits that “another order” referred to in r 16(i) must be an order which has the effect or consequence of “setting aside [the] originating process”, consistently with the heading of r 16.  However, the body of the rule itself, at least taken literally, provides for far wider relief.[21]
  8. [30]
    Rule 144, as already observed, refers to r 16.  Rule 144 applies where “a defendant … proposes to challenge the jurisdiction of the court or to assert any irregularity …”.[22]
  9. [31]
    This can be contrasted with the position under the Supreme Court Rules, which applied before the introduction of the UCPR.  Those rules provided for the filing of a conditional appearance.[23]  Order 12, r 22 provided:

22 (1) A defendant in any cause may enter a conditional appearance denying the jurisdiction of the Court, and shall not thereby be deemed to have submitted to such jurisdiction, except as to the costs occasioned by the appearance or by any application under this rule; and the defendant may thereupon apply to the Court or Judge for an order to set aside the service upon the defendant of the originating proceeding, or the service upon the defendant of notice thereof, as the case may be.”

  1. [32]
    Order 12, r 22 was confined to the circumstance where the jurisdiction of the court was challenged, unlike r 144 of the UCPR which applies also where “irregularity” is alleged.
  2. [33]
    Rule 16 describes orders which can be sought upon the filing of a conditional appearance under r 144.  By r 144(2) and (4), the orders sought under r 16 address not only a challenge to jurisdiction, but also an assertion of “irregularity”.  An “irregularity” is a failure to comply with the rules,[24] but an irregularity does not render the proceeding a nullity[25] and will therefore not go to jurisdiction. 
  3. [34]
    Rule 371 concerns the effect of a failure to comply with the rules.  It provides as follows:

371 Effect of failure to comply with rules

  1. (1)
    A failure to comply with these rules is an irregularity and does not render a proceeding, a document, step taken or order made in a proceeding, a nullity.
  1. (2)
    Subject to rules 372 and 373, if there has been a failure to comply with these rules, the court may—
  1. (a)
    set aside all or part of the proceeding; or
  1. (b)
    set aside a step taken in the proceeding or order made in the proceeding; or
  1. (c)
    declare a document or step taken to be ineffectual; or
  1. (d)
    declare a document or step taken to be effectual; or
  1. (e)
    make another order that could be made under these rules (including an order dealing with the proceeding generally as the court considers appropriate); or
  1. (f)
    make such other order dealing with the proceeding generally as the court considers appropriate.”
  1. [35]
    Rule 371 authorises the court to make orders in some ways similar, but certainly not identical to those that can be made number r 16.
  2. [36]
    Part 3 contains r 22 which is in these terms relevantly:

22 Claim

  1. (1)
    A claim must be in the approved form.
  1. (2)
    A plaintiff must—
  1. (a)
    state briefly in the claim the nature of the claim made or relief sought in the proceeding; and
  1. (b)
    attach a statement of claim to the claim; and
  1. (c)
    for a claim filed in the District Court or a Magistrates Court, show the court has jurisdiction to decide the claim.
  1. (3)
    The claim and attachment must be filed and then served on each defendant.
  1. (4)
    Subrule (3) does not require service on a defendant personally if the claim and attachment are served in accordance with the Motor Accident Insurance Act 1994, the repealed WorkCover Queensland Act 1996 or the Workers’ Compensation and Rehabilitation Act 2003.”
  1. [37]
    A statement of claim is a pleading, and pleadings are governed by Chapter 6.  Rule 149 provides relevantly as follows:

149 Statements in pleadings

  1. (1)
    Each pleading must—
  1. (a)
    be as brief as the nature of the case permits; and
  1. (b)
    contain a statement of all the material facts on which the party relies but not the evidence by which the facts are to be proved; and
  1. (c)
    state specifically any matter that if not stated specifically may take another party by surprise; and
  1. (d)
    subject to rule 156, state specifically any relief the party claims; and
  1. (e)
    if a claim or defence under an Act is relied on—identify the specific provision under the Act. (2) In a pleading, a party may plead a conclusion of law or raise a point of law if the party also pleads the material facts in support of the conclusion or point.”
  1. [38]
    Part 2 of Chapter 6 concerns particulars.  Rule 157 provides as follows:

157 Particulars in pleading

A party must include in a pleading particulars necessary to—

  1. (a)
    define the issues for, and prevent surprise at, the trial; and
  1. (b)
    enable the opposite party to plead; and
  1. (c)
    support a matter specifically pleaded under rule 150.”
  1. [39]
    Rule 161 provides for an application for order for particulars and that provides:

161 Application for order for particulars

  1. (1)
    A party may apply to the court for an order for further and better particulars of the opposite party’s pleading.

Note—

Chapter 11 (Evidence), part 8 (Exchange of correspondence instead of affidavit evidence) applies to an application under this part. Note, particularly, rule 447 (Application to court).

  1. (2)
    The court may, on an application under subrule (1), make the consequential orders and give the directions for the conduct of the proceeding the court considers appropriate.
  1. (3)
    The making of an application under this rule does not extend the time for pleading.
  1. (4)
    Particulars required under an order under this rule must repeat the relevant part of the order so the particulars are self-explanatory.”
  1. [40]
    It is true that the defendant’s application, purportedly brought under r 16, does not “challenge the jurisdiction of the court”[26] but, in a roundabout way, it alleges an “irregularity” in that:
    1. (a)
      the proceeding has been started by claim;
    2. (b)
      a statement of claim must be attached to the claim;
    3. (c)
      the statement of claim must comply with r 157;
    4. (d)
      the defendant, clearly enough, says that the statement of claim is not properly particularised.
  2. [41]
    However, it cannot be that an alleged shortcoming in the statement of claim attached to the claim is an “irregularity”, as contemplated by r 144.
  3. [42]
    By the rules in Chapter 2, a defendant must elect either to:
    1. (a)
      not defend the proceeding (not filing any notice of intention to defend), which will no doubt lead to a default judgment; or
    2. (b)
      engage in the litigation (entering an unconditional notice of intention to defend); or
    3. (c)
      assert that the claim should not proceed (entering a conditional notice of intention to defend).
  4. [43]
    The relief identified in each of paragraphs 16(a) to 16(h) all, one way or another, result in the claim not proceeding.  The term “another order” in r 16(i), in my view, refers to some similar or like order:  an order that fulfils the purpose of r 144 which is to prevent the plaintiff from litigating the claim without the defendant firstly submitting to the court’s jurisdiction.
  5. [44]
    The term “irregularity” in r 144 is limited to those irregularities which are such as to justify a defendant not submitting to the jurisdiction of the court.  Rule 16(i) must be read accordingly.  There are various rules which enable a challenge to be mounted to allegedly defective pleadings.[27]  Rules 16 and 144 are not intended to provide such a process.  The application filed by the defendant was not an application “for an order under rule 16”.

Was the application “made” within 14 days?

  1. [45]
    The defendant’s application, purportedly under r 16, was an application in the proceeding commenced by the claim.
  2. [46]
    Rules 31 and 32 govern the making of applications in a proceeding.  Those rules provide:

31 Applications in a proceeding

  1. (1)
    A person making an application in a proceeding, or the person’s solicitor, must sign the application and file it.
  1. (2)
    The application must be in the approved form.
  1. (3)
    The application must name as respondent any party whose interests may be affected by the granting of the relief sought.
  1. (4)
    If an application is made by a person who is not a party to the proceedings, the application must have on it the information required under rule 17 to be on an originating process unless the information has already been provided on a document filed in the proceeding.
  1. (5)
    An application must be filed and then served on each respondent at least 2 business days before the day set for hearing the application.

Note—

Under the Acts Interpretation Act 1954, section 38(1)(a), the service day and the hearing day are excluded in the reckoning of time.

  1. (6)
    If all the parties to an application consent to an adjournment of a hearing of the application, they may adjourn the application by noting the adjournment on the court file.

32 Oral applications

  1. (1)
    Nothing in this part prevents—
  1. (a)
    a party to a proceeding making an oral application to the court in the proceeding for an order the court may make on a written application; or
  1. (b)
    the court making an order sought on an oral application.
  1. (2)
    If a party makes an oral application, the court may impose conditions required in the interests of justice to prevent prejudice to the other parties.” (emphasis added)
  1. [47]
    There is no suggestion here of an oral application. 
  2. [48]
    The effect of r 31 is that an application is not made until it is filed.
  3. [49]
    Chapter 22 concerns “Documents, registry and solicitors”.  Division 2 of Chapter 22 concerns filing documents.  Rules 967, 968, 969 and 969A provide as follows:

967 How documents may be filed

  1. (1)
    A document may be filed by—
  1. (a)
    delivering it to the registry personally; or
  1. (b)
    sending it to the registry by post; or
  1. (c)
    if lodgement by electronic or computer-based means is authorised under a practice direction—complying with the practice direction.
  1. (2)
    A practice direction may require a particular class of document to be delivered to the registry personally.

968 Filing documents personally

  1. (1)
    This rule applies to a document filed by personal delivery to the registry.
  1. (2)
    However, this rule does not apply to an exhibit or another document that does not require the court’s seal on it.
  1. (3)
    The registrar may record the document and stamp the seal of the court on it or, if the document does not comply with these rules or may not otherwise be filed, refuse to file the document.
  1. (4)
    The document is filed when the registrar records the document and stamps the seal of the court on it.

969 Filing documents by post

  1. (1)
    This rule applies to a document filed by post.
  1. (2)
    The person filing the document must ensure it is sent by prepaid post in an envelope marked with a note it contains court documents.
  1. (3)
    The person filing the document must also ensure it is accompanied by the following—
  1. (a)
    the number of copies of the document required by these rules or by practice direction;
  1. (b)
    a stamped envelope addressed to the party filing it or the party’s solicitor;
  1. (c)
    any prescribed fee in a form satisfactory to the registrar.
  1. (4)
    The registrar may record the document and stamp the seal of the court on it or, if the document does not comply with these rules or may not otherwise be filed, refuse to file the document.
  1. (5)
    The document is filed when the registrar records the document and stamps the seal of the court on it.
  1. (6)
    After filing the document, the registrar must stamp the seal of the court on the copies of the document filed with the registrar and return them in the envelope provided by the party filing the document.
  1. (7)
    If a default judgment is given after filing by post of a request for the judgment, the registrar must return the default judgment in the envelope provided by the party filing the request.
  1. (8)
    If the registrar refuses to file the document, the registrar must return the document, in the envelope provided, to the party who filed it.
  1. (9)
    A party files a document by post at the party’s risk.

969A Electronically filing documents

  1. (1)
    This rule applies to a document to be filed electronically.
  1. (2)
    The following may be done by a manual or an electronic process—
  1. (a)
    the recording of the date of filing on the document by the registrar;
  1. (b)
    the applying of the seal of the court to the document.
  1. (3)
    The registrar may refuse to file the document if the document does not comply with these rules or may not otherwise be filed.
  1. (4)
    The document is taken to be filed when the registrar records the date of filing on the document and applies the seal of the court to it.
  1. (5)
    If the document is accepted by the registrar, the day on which the document is taken to have been filed is—
  1. (a)
    if the whole of the document is received by the registry before 4.30 pm on a day the registry is open for business—that day; or
  1. (b)
    otherwise—the next day the registry is open for business.
  1. (6)
    A service provider may electronically file a document on behalf of a party to a proceeding.
  1. (7)
    Any prescribed fee for electronically filing a document must be paid in accordance with the requirements of the principal registrar.
  1. (8)
    The registrar may give, including electronically, a copy of the filed document to the party to the proceeding who filed the document, or on whose behalf the document was filed.” (emphasis added)
  1. [50]
    The application was not filed personally so r 968 can be ignored.  By r 969A, a document may only be electronically filed if the filing of the document in that way is approved by the principal registrar of the court.[28]  There is no approval in existence for the electronic filing of a document of a class of the defendant’s application.
  2. [51]
    Consequently, the document here was not filed until it was filed by post under r 969. 
  3. [52]
    A document is not “filed” merely because it is physically delivered (by post or personally) to the court.  Filing is complete upon an action of the registrar.[29]  The registrar must accept that the document complies with the rules.  The registrar does that by recording the document and stamping it with the court’s seal.
  4. [53]
    Therefore, the application was made when the defendant filed it.[30]  That occurred when the defendant caused the registrar to accept the document and stamp it. That occurred on 14 October 2019.
  5. [54]
    Consequently, no application (pursuant to r 16 or otherwise) was made within 14 days of the filing of the conditional notice of intention to defend.  Time then ran under r 144.
  6. [55]
    Here, the application was received by the court on 10 October 2019 when it was retrieved from the court’s post office box.  Even if that constituted “filing” the document and therefore the application was “made” on that day, it was still too late and r 144(4) set time running.
  7. [56]
    While the defendant may feel aggrieved that his application was not filed until 14 October, even though he posted the documents on 8 October, by r 969(9) any risk was borne by the defendant and the rules are clear that the date of filing is that date stamped on the document by the registrar.

Did the registrar have jurisdiction to determine that an application under r 16 had not been made within time?

  1. [57]
    Rules 283, 284, 285 and 286 provide for judgment by default to be given.  Different rules apply depending upon the relief sought.  Rule 283 concerns claims for a debt or liquidated demand.  Rule 284 concerns claims for unliquidated damages.  Rule 285 concerns claims for relief arising from detention of goods and r 286 concerns claims for possession of land.  Rule 287 concerns cases where there are mixed claims and r 288 concerns cases not covered by rules 283-287. 
  2. [58]
    In different ways these rules vest jurisdiction upon the registrar or a judge of the court.  Rule 284, for example, provides that the registrar may give judgment for damages to be assessed but the assessment must be undertaken by the court, which is constituted by a judge.
  3. [59]
    Here the relevant rules are s 283 and s 286.  They are:

283 Judgment by default—debt or liquidated demand

  1. (1)
    This rule applies if the plaintiff’s claim against the defendant in default is for a debt or liquidated demand, with or without interest.
  1. (2)
    The plaintiff may file a request for judgment for an amount not more than the amount claimed, together with—
  1. (a)
    if interest is claimed—interest calculated, to the date of judgment, at the rate specified in the claim or in a practice direction for the Civil Proceedings Act 2011, section 58; and
  1. (b)
    the following costs—
  1. (i)
    costs for issuing the claim;
  1. (ii)
    costs for obtaining judgment;
  1. (iii)
    any other fees and payments, to the extent they have been reasonably incurred and paid.
  1. (3)
    If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.
  1. (4)
    For this rule, a debt or liquidated demand includes interest if the rate of interest is—
  1. (a)
    limited to the rate specified in, and calculated in accordance with, an agreement; or
  1. (b)
    not higher than the rate specified in a practice direction for the Civil Proceedings Act 2011, section 58.
  1. (5)
    Subrules (6) to (8) apply if interest is claimed under the Civil Proceedings Act 2011, section 58.
  1. (6)
    If the plaintiff elects to abandon the claim for the interest, the claim is taken to be a claim for the debt or liquidated demand without interest.
  1. (7)
    If the plaintiff elects to accept interest at a rate not higher than that specified in a practice direction for any period mentioned in the direction, the registrar may award interest under the direction, whether or not the defendant has paid the debt or liquidated demand after the proceeding is started.
  1. (8)
    If the plaintiff seeks to recover a higher rate of interest than that specified in a practice direction for any period mentioned in the direction, the court may—
  1. (a)
    decide the interest, if any, that is recoverable; and
  1. (b)
    direct that judgment be given for the interest, whether or not the defendant has paid the debt or liquidated demand after the proceeding is started; and
  1. (c)
    direct that judgment be given against the defendant under this rule.
  1. (9)
    If the period for which interest is to be awarded is not specified in the statement of claim, interest is recoverable only from the date of the issue of the claim.
  1. (10)
    If the court as constituted by a registrar is considering whether to give judgment, the registrar is not required to consider the merits of the plaintiff’s claim against the defendant.

286 Judgment by default—recovery of possession of land

  1. (1)
    This rule applies if the plaintiff’s claim for relief against a defendant in default is for the recovery of possession of land only.
  1. (2)
    The plaintiff may file a request for a judgment for—
  1. (a)
    recovery of possession of the land as against the defendant; and
  1. (b)
    the following costs—
  1. (i)
    costs for issuing the claim;
  1. (ii)
    costs for obtaining judgment;
  1. (iii)
    any other fees and payments, to the extent they have been reasonably incurred and paid.
  1. (3)
    If the plaintiff files a request for judgment under subrule (2), the court, as constituted by a registrar, may give judgment.
  1. (4)
    However, the plaintiff is not entitled to the judgment if the plaintiff’s claim is for delivery of possession under a mortgage.
  1. (5)
    If the court as constituted by a registrar is considering whether to give judgment, the registrar is not required to consider the merits of the plaintiff’s claim against the defendant.”
  1. [60]
    Rules 283 and 286 only have application when a defendant does not file a defence.[31]  By r 282, service of the claim must be proved.
  2. [61]
    By each of rr 283 and 286, the registrar constitutes the court for the purposes of entering judgment.  Therefore, the effect of rr 6, 144, 281, 282, 283 and 286 is that it is for the registrar to determine on an application for judgment:
    1. (a)
      whether the claim has been served;
    2. (b)
      whether a conditional notice of intention to defend has been filed;
    3. (c)
      whether an application for orders under r 16 has been filed;
    4. (d)
      whether any such application has been filed within time;
    5. (e)
      if not, whether a defence has been filed.
  3. [62]
    It is unclear whether the registrar found that the application that was filed in October 2019 was an application made for relief under r 16.  That, though, does not matter because the application was filed beyond the time limited by r 144.

Orders

  1. [63]
    The defendant has not demonstrated that the judgment was irregularly entered.  The defendant has not sought the setting aside of the judgment on discretionary grounds.
  2. [64]
    The application should be dismissed.
  3. [65]
    The defendant also seeks to relist the application for particulars.  Judgment having been given on the claim, relisting that application is futile.  That application ought to be dismissed.
  4. [66]
    There is no reason why the defendant ought not pay the costs of the application.
  5. [67]
    I order:
  1. The application filed 14 October 2019 is dismissed.
  2. The application filed 14 November 2019 is dismissed.
  3. The defendant shall pay the plaintiff’s costs of the applications, including reserved costs, on the standard basis.

Footnotes

[1]Uniform Civil Procedure Rules 1999, r 281(2), r 283 and r 286.

[2]Rule 290.

[3]Uniform Civil Procedure Rules 1999, Chapter 13, Part 6.

[4]Rule 491.

[5]The costs were reserved.

[6]This requires a defence to be attached to an unconditional notice of intention to defend.

[7]Rule 144(4) and (5).

[8]Despite some initial confusion, the plaintiff’s solicitors now accept that the documents were emailed to them on 7 October 2019.

[9]Rules 283(2) and 286(2).

[10]The first rule in Chapter 9, Part 1, Division 2.

[11]This should read “Defendant’s”.

[12]Cusack v De Angelis [2008] 1 Qd R 344, following Vosmaer v Spinks [1964] QWN 36.

[13]National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd [1983] 2 Qd R 441.

[14]Rule 144(4).

[15]Rule 144(4).

[16]SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362 at [14].

[17]See SZTAL at [35]-[40] and R v A2, R v Magennis, R v Varizi (2019) 93 ALJR 1106 at [31]-[37].  These principles apply to subordinate legislation and probably to all legal documents:  Byrnes v Kendle (2011) 243 CLR 253 at [95]-[116].

[18]McIntosh & Anor v Maitland & Ors [2016] QSC 203 at [34] and UBS AG v Tyne (2018) 92 ALJR 968 at [125].

[19]The heading is part of the rule:  Acts Interpretation Act 1954, s 7, s 35C(1).

[20]Rule 144(7).

[21]Rule 16(g).

[22]Rule 144(2).

[23]An “appearance” was the equivalent of a notice of intention to defend under the Uniform Civil Procedure Rules 1999; see RSC O 12, r 1.

[24]Rule 371.

[25]Rule 371.

[26]Rule 144(2).

[27] Rules 161, 162, 171.

[28]Rules 967(3) and 975C.

[29]Venz v Moreton Bay Regional Council (formerly Caboolture Shire Council) [2009] QCA 224 at [17].

[30]Rule 31.

[31]Rule 281.

Close

Editorial Notes

  • Published Case Name:

    Bendigo and Adelaide Bank Limited v Scriven

  • Shortened Case Name:

    Bendigo and Adelaide Bank Ltd v Scriven

  • MNC:

    [2020] QSC 43

  • Court:

    QSC

  • Judge(s):

    Davis J

  • Date:

    13 Mar 2020

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2020] QSC 4313 Mar 2020Defendant's application to set aside default judgment dismissed; defendant's application for further and better particulars dismissed: Davis J.

Appeal Status

No Status
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