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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Bruder Expedition Pty Ltd v Coles  QSC 49
BRUDER EXPEDITION PTY LTD
ACN 603 551 579
CHARLES JOHN COLES
BS No 6453 of 2019
Supreme Court of Queensland
23 March 2020
30 March 2020
29 August 2019; supplementary written submissions received on 19 and 20 September 2019
The orders of the court are that:
PROCEDURE – JUDGMENTS AND ORDERS – AMENDING, VARYING AND SETTING ASIDE – application to set aside default judgment – whether judgment irregularly entered – matters to be considered on application to set aside judgment – whether discretion should be exercised to set aside default judgment
Service and Execution of Process Act 1992 (Cth), s 16, s 17
Service and Execution of Process Regulations 2018 (Cth), reg 6, Form 1
Uniform Civil Procedure Rules 1999 (Qld), r 105, r 106, r 281, r 284, r 290, r 660
Briginshaw v Briginshaw (1938) 60 CLR 336, followed
British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, cited
Cusack v De Angelis  1 Qd R 344, cited
M v M (1988) 166 CLR 69, cited
A J H Morris QC for the applicant defendant
M D Martin QC for the respondent plaintiff
GTC Lawyers for the applicant defendant
Mills Oakley for the respondent plaintiff
- This is an application pursuant to r 290 of the Uniform Civil Procedure Rules 1999 (Qld) to set aside a default judgment entered on 13 August 2019.
- On 23 March 2020, I ordered that the judgment be set aside and granted leave to the defendant to file a notice of intention to defend and defence within 14 days. I also ordered that the plaintiff pay the defendant’s costs of the application to be assessed on the standard basis and, pursuant to r 660(2) UCPR, that the orders take effect on the date on which the reasons are published. What follows are those reasons.
- The plaintiff, Bruder Expedition Pty Ltd, commenced this proceeding on 20 June 2019 by the filing of a claim and statement of claim in which damages for injurious falsehood, interest and costs are sought from the defendant, Mr Coles. On the same day, a solicitor employed by the solicitors for the plaintiff, Ms Galea, forwarded an email to the defendant’s solicitor, Mr Jordaan, in which she enquired whether he had instructions to accept service. A response was sought by 5.00 pm on the following day failing which, he was advised, steps would be taken to serve the defendant personally. As no response was received, on 24 June, Ms Galea again emailed Mr Jordaan. She attached a copy of the claim and statement of claim, advised that steps had been taken to personally serve the defendant and requested that Mr Jordaan advise if in the meantime instructions were obtained to accept service.
- On 7 August 2019, the plaintiff’s solicitors filed a request for default judgment pursuant to what I take to have been r 284 UCPR. That is the rule which applies to a claim for unliquidated damages, with or without another claim. It provides for the filing of a request for judgment conditional on the assessment of damages by the court under Part 8 of Chapter 2 UCPR and, in any such case, the registrar may give judgment.
- The request for default judgment was supported by an affidavit sworn by Ms Galea on 7 August 2019 as well as an affidavit sworn on 16 July by a process server from New South Wales, Mr Guest. Ms Galea deposed that Mr Jordaan had not responded to her emails and that no notice of intention to defend had been filed. She also provided a breakdown of the amount sought for costs. Mr Guest swore that he served the claim and statement of claim on the defendant, together with a “Form 1 SEPA Notice”, at 8.00 am on Tuesday, 9 July. Further, he swore that he did so by personally delivering a copy of each document to the defendant at an address in Dural in the State of New South Wales and that, at the time he did so, he asked the person served whether he was “Charles John Coles, the person referred to within these documents?”. Mr Guest deposed that the person served “appeared to read the document” and replied, ‘Yes I am’.” On 13 August, the acting registrar considered the request and entered default judgment in favour of the plaintiff for damages to be assessed together with interest and costs in the amount sought by Ms Galea.
- Nine days later (22 August 2019), the defendant filed an application for orders setting aside the judgment and consequential relief. The application was supported by three affidavits, each of which was affirmed on the day on which the application was filed. The affidavits were from Mr Jordaan, the defendant and his friend, Ms Desmond.
- The defendant deposed that he retained his current solicitors to represent him on 17 May 2019. Before that, he was represented by a different firm. At all times, he intended to defend this proceeding and, indeed, to advance a counterclaim against the plaintiff. Counsel had been retained for that purpose. The defendant affirmed that he was not served with the claim and counterclaim until around 8.30 pm on Friday, 26 July. Mr Guest served the process on him and this was proceeded by a number of communications between the two men. A voicemail was left by Mr Guest on 5 July to which the defendant responded by text message the following day to advise that he was “currently away and generally in a bad reception area” and that he would be “back later next week”. On the day Mr Guest later swore he served the defendant (9 July), the defendant deposed that he was at home in his office “until at least midday” working on an affidavit with respect to another case. Ms Desmond was in his presence for “almost all of this time”. On the next day, he left a voicemail on Mr Guest’s telephone followed by a text message to inform him that he (the defendant) was unable to meet as scheduled. Mr Guest responded by text later that afternoon. They eventually spoke by telephone and arrangements were made to serve the defendant at his premises at Dural on 12 July between 5.30 pm and 6.00 pm, but Mr Guest failed to arrive. Eventually, on 26 July, Mr Guest left a voice message on the defendant’s telephone and, after a further exchange of text messages, it was agreed that he would attend on the defendant at his residence at Dural at 8.30 pm. The voice message was subsequently transcribed by the defendant:
“Hi Charlie, Michael Guest Mercantile Agent, we spoke earlier this week, let me know when you will be home, I will be in your area this evening, we were going to meet up. Cheers mate thanks.”
- At around 8.30 pm on 26 July 2019, Mr Guest arrived at the front gate of the Dural residence, the defendant went out to meet him and took receipt of the “documents through the gate”. The defendant deposed that Mr Guest “then proceeded to offer [him] legal advice”. The defendant “cut him short, thanked him and went straight back inside”. He then handed the documents to Ms Desmond who scanned them and informed him that they “appeared to be identical to the soft copy” that was already in his possession.
- When, on 15 August 2019, the defendant learned that default judgment had been entered, he called Mr Guest to ask how that could be possible, given that he had only been served on 26 July 2019. According to the defendant, Mr Guest told him that he “subcontracts to another company”. The defendant then asked Mr Guest how he could have sworn an affidavit to the effect that the process had been served “much earlier in July [then] you in fact did”, to which Mr Guest replied that he “is given 400 or so of these jobs a week” and could not remember [the defendant’s] details. The defendant again asked Mr Guest to explain his affidavit, to which Mr Guest responded that “the company he subcontracts to provides him frequently with a pile of papers and affidavits to sign and that it is not uncommon for mistakes to occur and wrong dates to be entered”.
- Ms Desmond deposed that, at all times material to this application, she resided in “the same house as the defendant as friends”. She was in the company of the defendant in his office at Dural on 9 July 2019 “from about 7.30 am to midday”. They were working together on the affidavit to which reference was earlier made (at ). At no time over this period “did anyone use the intercom to try and gain access to the property”. It is impossible, she deposed, to enter the property without using the intercom if you do not have keys or a remote control device. Ms Desmond therefore affirmed that “any assertion made by [Mr] Guest that he served [the defendant] on the 9th July is false”.
- Ms Desmond also deposed that, on the following day, she was present with the defendant when he rang Mr Guest and left a voicemail message. It was “to let [Mr Guest] know he was not going to be able to keep their appointment … to be served later that day as something had come up that required [the defendant] to be away from the property”. Then, on 12 July, she and the defendant stayed at home because of the appointment that had been made for Mr Guest to attend to serve the process. She confirmed that Mr Guest “did not turn up”.
- Lastly, Ms Desmond affirmed that, on the evening of 26 July 2019, the defendant asked her “to hold off cooking dinner until [Mr Guest] had arrived to serve him”. At “around 8:30 pm”, the intercom was activated. The defendant answered, told Ms Desmond that it was Mr Guest, left the residence through the kitchen door and returned one to two minutes later. She recalled that the defendant had a document in his hand which she asked to look at. The defendant handed it to her and Ms Desmond saw that it was “a printed copy of the statement of claim”.
- In his affidavit, Mr Jordaan confirmed that he had acted for the defendant since 17 May 2019. He agreed that he did not respond to Ms Galea’s emails of 20 and 24 June, but said that he did not have instructions to accept service. When he was alerted by his client to the entry of default judgment, he immediately forwarded an email to Ms Galea in which he called on her to prepare a consent order setting it aside on the basis that the defendant had only been served on 26 July. Further correspondence ensued including an email from Mr Jordaan on 19 August attaching a copy of the text messages between the defendant and Mr Guest. However, Ms Galea responded three days later in terms advising:
“At the time of service, your client requested that Mr Guest re-attend the premises so as to provide your client with a referral for a local solicitor. The communications attached to your correspondence relate to this request.”
- By way of response, the plaintiff filed a further affidavit from Mr Guest on 28 August 2019. It was sworn on 21 August (that is to say, two days after Mr Jordaan provided a copy of the text messages to Ms Galea and the day before the application to set aside the default judgment was filed). Then, on the hearing of the application, leave was granted to the plaintiff to file an affidavit affirmed by its solicitor, Mr Barber, on 28 August and a further affidavit from Mr Guest which was sworn on the morning of the hearing.
- In the affidavit sworn on 21 August 2019, Mr Guest maintained that he effected service on the defendant at 8.00 am on 9 July and added that, when he did, the defendant asked, “What do I do now?”, to which he responded, “I know a local solicitor that could assist if required”. No further conversation is deposed to. Mr Guest however swore that, on the following day, he received a voicemail from the defendant in which he said:
“I need some legal advice. This is one of several matters that is causing me stress. I am looking at doing a cross-claim and might get one of the local solicitors that you know to have a look at it”.
- Mr Guest then deposed that he subsequently received phone calls from the defendant requesting that he attend at the Dural address to “collect documents from him”. Mr Guest advised him that he was “happy to collect the … paperwork and deliver it to the solicitor that I know”. He said that, on 26 July 2019, he “received a text message from the defendant regarding the collection of the paperwork” but, after agreeing in later texts to attend at Dural at 8.30 pm, he decided not to do so. No reasons were deposed to. Importantly, Mr Guest swore:
“At no time other than 9 July 2019 have I attended the [Dural] address or met with the defendant”.
- Mr Guest then turned in his affidavit to the telephone conversation between the defendant and him on 15 August 2019. Although he accepted that the defendant “alleged in [the] conversation that he had not been served with the documents until” 26 July, Mr Guest swore that he then “informed” the defendant that he had served him on 9 July. He then deposed that the defendant said words to the effect of, “I have legal representation”, to which Mr Guest responded with words to the effect of, “You should more appropriately consult with the [solicitors] rather than ring me”, after which he “terminated” the telephone call. Oddly, Mr Guest then exhibited an exchange of emails with the defendant on the following day (16 August). They take the matter no further although it is of some relevance to observe that, in apparent contradiction of what Mr Guest swore he had been told by the defendant on the previous day about legal representation, the email from Mr Guest contains these statements:
“It is evident that you are still unrepresented by a solicitor. At this stage of proceedings this is very surprising.”
- The affidavit sworn by Mr Guest which was filed by leave exhibits a “job sheet” on which, according to Mr Guest, he wrote the date, time and address of service immediately after he served the defendant. Further, he swore that he “hand delivered the job sheet as completed” to “Amanda Craig from Docserv”. No evidence was adduced from Ms Craig to verify this.
- Mr Barber affirmed that, on 24 June 2019, his firm engaged process servers trading under the name, Sharmans, to serve the defendant. Email correspondence between his firm and Sharmans regarding attempts to serve the defendant from that day until 9 July is exhibited to his affidavit. According to that material, consisting as it in part does of four reports from Sharmans to the plaintiff’s solicitors, attempts were made by an “agent” to serve the defendant at his Dural address on 26 June, 30 June, 3 July and 4 July before, finally, serving him on 9 July. After each of the unsuccessful attempts, Sharmans reported that the “agent re-attended” the Dural address. Although it should be left as an open question because no submissions were made by either party on this point, it is not suggested in any of the reports that the agent who served the defendant was different to the agent who made the previous attempts. The implication, at least, is that the same agent “re-attended” the premises on each occasion. If that is so, Mr Guest’s evidence to the effect that he only attended on one occasion – 9 July – would be difficult to accept, but for the reason expressed I draw no conclusion, one way or the other, on this point.
- A broad discretion is conferred on the court by r 290 UCPR to set aside a default judgment. Indeed, it has been held to be a provision that empowers the court to “do whatever is necessary to achieve justice between the parties and to avoid unnecessary delay and expense.” Furthermore, where it is demonstrated that a judgment has been irregularly entered, the judgment should be regarded as the product of an administrative act without any legal authority and, as such, a defendant is entitled to have it set aside almost as a matter of right, subject only to discretionary considerations such as futility.
- An irregularity will arise where there has been a failure to comply with the UCPR so far as those rules pertain to the entry of default judgments. An originating process such as a claim and statement of claim must be personally served: r 105 UCPR. Leaving to one side the additional requirements under the Service and Execution of Process Act 1992 (Cth), personal service can only be effected by giving the document, or a copy of it, to the person intended to be served or by putting it down in the person’s presence and telling him or her what it is: r 106 UCPR. If that did not occur until 26 July 2019, the defendant had 21 days (until 16 August) to file a notice of intention to defend and defence. It would then follow that the whole premise for the entry of the default judgment – a failure to file a notice of intention to defend within the time allowed – would be absent, and the judgment must be regarded as irregularly entered and could not stand.
- It follows that the question to be determined on this application was the date on which the defendant was served. As to this, the defendant bore the onus of persuading the court on the balance of probabilities that he was not served until 26 July 2019. Additionally, as a finding to that effect would necessarily mean that the court was satisfied that the defendant was not served on 9 July, such a finding could have serious consequences for Mr Guest because a rejection of the direct and associated evidence he gave on at least that point would underpin it. For that reason, a high degree of persuasion would be required before such a conclusion could be reached.
- Each of the defendant, Ms Desmond and Mr Guest was called to give evidence on the hearing of the application.
- The defendant and Ms Desmond struck me as truthful witnesses. Neither was shaken in cross-examination. Although Ms Desmond was hardly independent of the defendant, she gave careful, considered answers to the questions asked of her in cross-examination. Overall, I was persuaded that she gave a reliable account of the relevant events. That account was important to the outcome of this application because, not only did her evidence corroborate the defendant’s account that he was not served with any process on the morning of 9 July 2019, it supported his account regarding the leaving of a voicemail message for Mr Guest the following day, staying home on the evening of 12 July to accept service (only for Mr Guest not to arrive) and, finally, being served with the process on the evening of 26 July. Ms Desmond had good reason to remember the morning of 9 July; she and the defendant worked until the early hours of that day on the affidavit earlier mentioned (at ) and were back working on the same task in the defendant’s office from about 7.35 am that morning. Only two days before they had travelled to Brisbane to enable the defendant to confer with his solicitors and senior counsel. It was also the day after her son’s birthday. This was significant because she had to cancel her attendance at a dinner for her son on the previous evening because of the need to assist the defendant with his affidavit. Indeed, although senior counsel for the plaintiff attempted to make something of the feature that the defendant and Ms Desmond were at home in Dural on 8 and 9 July working on the affidavit when the defendant had, on 6 July, sent a text message to Mr Guest advising that he would be away until later that week, I infer that the need to prepare the affidavit and have it sworn on 9 July arose in urgent circumstances and, most probably, after the relevant text message was sent. The impression I gained from their evidence was that quite a concerted effort, involving long hours, was required to complete the task, so the fact that Ms Desmond went to sleep around 1.00 am on 9 July and was awoken by the defendant shortly after 7.30 am on the same morning to continue working on the affidavit would have stuck in her memory. I have little doubt that, had Mr Guest arrived at the Dural address to serve the defendant at approximately 8.00 am on 9 July (or at any other time after 7.35 am that morning), Ms Desmond would have known about it.
- On the other hand, Mr Guest proved to be a most unconvincing witness. His account chopped and changed over the course of his evidence, and in important respects. He was evasive, or tried to be, when cornered in cross-examination and, in the end, the version he would have this court accept was in every sense unbelievable. It was to the effect that, following service of the defendant on the morning of 9 July, the defendant asked Mr Guest what he should do, to which Mr Guest replied that he knew a “local solicitor [who] could assist if required”. On the following day, the defendant followed up with a voicemail message indicating that he needed “legal advice” and wanted to take Mr Guest up on his suggestion. Subsequently, the defendant telephoned Mr Guest requesting that he attend at Dural to collect the documents that had been served on him and deliver them to the “local solicitor”. Mr Guest advised that he was happy to do so but nothing seems to have happened in that regard until 26 July when arrangements were made with the defendant to attend at Dural that evening to collect “the paperwork”. In oral evidence, Mr Guest said that he was visiting a friend in a neighbouring suburb and decided not to attend as arranged with the defendant, but he did not text or telephone the defendant to advise him that he had changed his mind. On Mr Guest’s account, and inexplicably, there was no further communication between the two men until 15 August when the defendant telephoned him after learning that default judgment had been entered.
- I found Mr Guest’s version to be fatuous in the extreme. At all material times, the defendant was represented by solicitors and senior counsel in Brisbane; there was and could never have been any need for the defendant to seek any assistance from a process server, let alone assistance in the form of a referral to a solicitor in Sydney for legal advice. Although it would be difficult to accept much if anything of Mr Guest’s evidence, it emerged in evidence that the particular solicitor Mr Guest said he had in mind practised in Castlereagh Street, in the Sydney CBD; hardly a “local solicitor” when regard is had to the feature that Dural was an hour and a half drive from the CBD. Furthermore, if the defendant had any need for legal representation (which I find he did not), Mr Guest could have just as easily provided the defendant with the telephone number and contact details for the solicitor. A copy of the claim and statement of claim had, the evidence disclosed, already been emailed to the defendant by his current solicitors and could have just as easily been emailed to the Sydney solicitor if he was to be retained. Instead, on Mr Guest’s account, he offered to undertake what on any view was a long drive, for no reward, to collect a hard copy of the documents on a Friday evening and then deliver the same to an, as then, unnamed solicitor in the Sydney CBD on the following Monday morning. All of this, Mr Guest said he was prepared to do, for someone he had met only once and, on that occasion, solely for the purpose of serving process on him. No such offer or arrangements were ever made. Instead, I find, after making contact with the defendant in early July 2019, all that Mr Guest eventually did was to attend at the Dural address on the evening of 26 July and effect service.
- I of course do not overlook the feature that Mr Guest swore an affidavit on 16 July 2019 deposing to service on 9 July and, in his affidavit filed by leave, to completing and delivering to Ms Craig a job sheet purporting to confirm details of service on the same day. How the affidavit of 16 July came to be sworn is not something I need to determine in any conclusive way. It is enough to find, as I do, that the contents of that affidavit are false. Whether that was deliberate may be for others to decide but it remains as a rational possibility on the evidence before me that the affidavit was sworn in error for the reasons Mr Guest advanced to the defendant on the telephone on 15 August 2019. Similar observations may be made about the job sheet; to the extent it purports to record service on the defendant at 8.00 am on 9 July it is false, but perhaps not deliberately so. However, the affidavits sworn by Mr Guest on 21 and 29 August may be not so easily discounted. Taken together, it would appear that they were intended to advance a false concoction in an attempt to overcome the evidentiary effect of the text messages which Mr Jordaan revealed to Ms Galea on 19 August but that, as I say, may be something for others to decide.
- Before making the orders disposing this application, I was satisfied to the standard required (as discussed above at ) that the claim and statement of claim were served on the defendant on the evening of 26 July 2019 and not at any earlier time. It follows that the default judgment was entered before the time allowed for the filing of a notice of intention to defend and defence had expired. It was irregularly entered and could no longer stand.
- Although application was made for an award of indemnity costs, this was never an appropriate case for such an order; at all times, the solicitors for the plaintiff proceeded on the faith of a sworn version from Mr Guest on which they were entitled to rely in seeking to oppose the application.
 The precise rule is not specified in the request.
 I take this to be a reference to the Service and Execution of Process Regulations 2018 (Cth), Form 1 (Notice when serving initiating process in civil proceedings).
 Cusack v De Angelis  1 Qd R 344, .
 Ibid, .
 Section 16, and Service and Execution of Process Regulations 2018 (Cth), reg 6 and Form 1.
 The Service and Execution of Process Act 1992 (Cth) would apply (see r 137(2) UCPR) under which, by s 17, the time for filing a notice of intention to defend is 21 days from the date of service.
 Briginshaw v Briginshaw (1938) 60 CLR 336, 361–2. And see: M v M (1988) 166 CLR 69, 76–7; British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 325.
- Published Case Name:
Bruder Expedition Pty Ltd v Coles
- Shortened Case Name:
Bruder Expedition Pty Ltd v Coles
 QSC 49
23 Mar 2020