Kumar v Ernst[2021] QCA 260

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Fraser JA and with the orders proposed by his Honour.
2. [2]
   FRASER JA:  In 2013 the appellant, a surgeon, was consulted by, and conducted a surgical procedure upon, the respondent.  The respondent subsequently embarked upon the pre-litigation procedure required by the Personal Injuries Proceedings Act 2002 (Qld) and successfully applied for an extension of the limitation period applicable to a claim against the appellant.  On 29 August 2018 the respondent filed a claim and statement of claim in which she claimed damages for personal injuries suffered by her because of the appellant’s alleged negligence or breach of contract.  On 10 March 2020, upon application by the respondent upon the ground that the appellant had not filed a notice of intention to defend, a default judgment was given in favour of the respondent for damages to be assessed upon her statement of claim, together with assessed costs, such damages to be assessed by the District Court of Queensland.
3. [3]
   After a hearing on 6 October 2020, on 9 October 2020 Jarro DCJ assessed the respondent’s damages at $235,703.36 and ordered the appellant to pay the respondent’s costs.  On 19 November 2020, Applegarth J dismissed an application filed by the appellant on 6 October 2020 to set aside the default judgment and ordered the appellant to pay the respondent’s costs of that application.
4. [4]
   On 5 November 2020 the appellant commenced an appeal against the judgment given by Jarro DCJ on 9 October 2020.  On 16 December 2020, the appellant commenced an appeal against the orders made by Applegarth J on 19 November 2020.  The appeals were listed to be heard together.  The appellant did not appear at the hearing.  In circumstances in which the appellant had lodged outlines of argument and counsel for the respondent did not seek summary dismissal of the appeals, the Court decided at the hearing to consider those appeals on their merits.  Some hours after the hearing of the appeals had concluded, the registrar received from the appellant an email in which he apologised for overlooking the hearing date, observed that he would accept whatever judgment the Court handed down, asked the Court to record his absence, and asked the Court to disregard any request from the respondent’s lawyers for the matter to be struck out.
5. [5]
   I will first discuss the appeal against the default judgment.  In this appeal, the appellant contends he was entitled to have the default judgment set aside upon the ground that it was irregularly entered because he had not been duly served with the respondent’s claim and statement of claim.  In the alternative, if the Court finds the default judgment was regularly entered, the appellant contends that Applegarth J erred by not exercising the discretion to set aside the default judgment.
6. [6]
   Applegarth J found that the claim and statement of claim were duly served upon the appellant.  At the time of such service the appellant was a prisoner on remand at the Capricornia Correctional Centre.  The appellant argues that service was not effected in accordance with r 110 of the Uniform Civil Procedure Rules 1999 (Qld).  That rule provides three methods of serving documents which otherwise would be required to be served personally on a prisoner.  The applicable method stipulates that a document “required to be served personally on a prisoner must be served on … the person in charge of the prison in which the prisoner is imprisoned”.  The appellant argues that r 110 does not apply to prisoners detained in prison on remand.  The unambiguous text of the rule does not allow for the exclusion from its scope of any particular category of prisoners.  Nor would such an exclusion serve the rule’s purpose of facilitating service upon prisoners of documents that otherwise must be served personally.  Rule 110 applies equally to prisoners on remand and prisoners who are serving a term of imprisonment.
7. [7]
   Mr Hughes, a solicitor employed by the firm acting for the respondent, swore affidavits in which he set out in detail how service was effected upon the appellant in accordance with r 110.  It is necessary to record only the effect of two aspects of Mr Hughes’ evidence about service.  First, the Capricornia Correctional Centre’s Secure Incoming Mail Register records that the appellant was served on 31 August 2018.  Secondly, on or about 19 September 2018 Mr Hughes’ firm received a letter dated 13 September 2018 from the appellant acknowledging he had received the claim and statement of claim; the appellant’s letter includes statements thanking Mr Hughes “for keeping me informed about the progress of this case” and proposing that “any further proceedings be withheld till I am in a better position to comment about the case and be in a better frame of mind”.
8. [8]
   The appellant affirmed an affidavit on 6 October 2020 in which he stated “the Defendant has never been served with a Notice to the Statement of Claim” (apparently intended to mean the claim and statement of claim) “as during the said period of the claimed service by the Plaintiff, the said Plaintiff” (apparently intended to mean the defendant) “was held in the Remand Prison in Queensland and there was no way for him to receive any Notice of Statement of Claim apart from a Notice duly served at the said Remand Prison”.  The statement that the appellant “has never been served” is expressed as a conclusion that is said to flow from the fact that he was in prison but, despite having recognised the existence of the exception in the last clause (“apart from…”), the appellant did not address that exception.  Two things are particularly noticeable by their absence from the appellant’s affidavits: the appellant did not state he was not given the claim and statement of claim whilst he was in prison, and he did not attempt to explain how his letter of 13 September 2018 to Mr Hughes could be reconciled with his argument that he was not served with those documents whilst he was in prison.
9. [9]
   Furthermore, the transcript of the hearing before Applegarth J confirms his observation that the appellant acknowledged that the claim and statement of claim were given to him by the general manager of the Capricornia Correctional Centre.  The appellant submits that the documents were taken from him and not returned when he was subsequently released from the correctional centre.  The evidence establishes, however, that the appellant was duly served on 31 August 2018 and from then, or at the latest by 13 September 2018, the appellant had personal knowledge of the claim and statement of claim served upon him.
10. [10]
    Upon a liberal interpretation of the appellant’s arguments on appeal, he submitted that a different irregularity, the absence of a notice required by r 389 of the UCPR, affected the default judgment.  No such point was argued before Applegarth J.  There is no substance in it.  The respondent’s application for default judgment was initially refused by a registrar upon the basis that, in terms of r 389 of the UCPR, no step had been taken in the proceeding for one year from the time the last step was taken.  At this time the appellant had not supplied a current address for service.  Rule 389 does not require notice under that rule to be personally served.  It was therefore permissible for the respondent to serve the notice by posting it to the appellant’s last known place of residence.^[1]  On 13 January 2020, Mr Hughes posted a letter addressed to the appellant at the forwarding address supplied to Mr Hughes’ firm by the correctional centre after the appellant had been released.  That letter gave notice pursuant to r 389 of the respondent’s intention to proceed and that, if no response was received from that letter within one month, the respondent would request default judgment.  Mr Hughes swore that, at the date of swearing his affidavit of 6 March 2020, no response to the letter of 13 January 2020 and no notice of intention to defend had been received at the address for service of the respondent.
11. [11]
    The appellant stated in his affidavit of 6 October 2020 that “the Defendant further claims that the said Notice of the Statement of Claim was duly served to his brother’s residence in Sydney, New South Wales and the said registered article was never delivered or brough[t] to the urgent attention of the Defendant”.  The respondent had instead claimed and proved that her claim and statement of claim were served at the correctional centre.  The statement I have quoted from the appellant’s affidavit is not inconsistent with the notice under r 389 having been duly posted to the appellant’s address last known to the respondent.
12. [12]
    The appellant’s arguments that the default judgment was not regularly entered should be rejected.  The remaining issue in this appeal is whether Applegarth J erred in refusing to set aside the regularly entered default judgment.
13. [13]
    In Embrey v Smart,^[2] to which Applegarth J referred, his Honour (Muir and Morrison JJA agreeing) referred to McPherson J’s summary of considerations relevant in an application to set aside a regularly entered default judgment in National Mutual Life Association of Australasia Ltd v Oasis Developments Pty Ltd;^[3] the Court must consider whether the defendant had given a satisfactory explanation for failing to appear, any delay in making the application to set aside the judgment, and whether the defendant had a prima facie defence on the merits.  McPherson J observed, with reference to authority, that the last of those considerations was the most cogent; a defendant who had an apparently good ground of defence would not often be refused the opportunity of defending, even though a lengthy interval of time had elapsed, provided that no irreparable prejudice was thereby done to the plaintiff; and, conversely, to obtain an order setting aside a regularly entered default judgment, the defendant was “required to show by affidavit a defence on the merits; that is, what is described in Evans v Bartlam [1937] A.C. 473, 480, as a “prima facie defence”, and in Saunders v Hammond [1965] Q.W.N. 39 as “a substantial ground of defence””.^[4]
14. [14]
    In relation to the material considerations discussed in those cases, Applegarth J found there had been an inadequate explanation of the appellant’s failure to defend, there had been delay in making the application to set aside the default judgment, and whilst the appellant had asserted in his affidavit that he had a strong defence, he had not justified that assertion by evidence.  I will refer to the evidence bearing upon those findings.
15. [15]
    The appellant’s affidavit of 6 October 2020 includes the statement, that “had the Defendant knew about the [claim and statement of claim] as filed by the Plaintiff he would have made every endeavour to appear before the [Supreme Court] to the Defendant claim”.  That statement is not reconcilable with the appellant’s letter of 13 September 2018 or his concession at the hearing before Applegarth J.  That and other statements to similar effect in the appellant’s evidence cannot be regarded as a satisfactory explanation for the appellant’s failure to defend the respondent’s claim against him during the period of about one and a half years from no later than 13 September 2018 to 10 March 2020.  The absence of a satisfactory explanation for the appellant’s delay in defending the claim during that very long period militates against the exercise of the discretion to set aside the default judgment.
16. [16]
    As to the delay in applying to set aside the default judgment, it is necessary to refer to some of the evidence.  The appellant affirmed and filed an affidavit on 6 October 2020 and a second affidavit on 23 October 2020.  At the hearing before Applegarth J, when the appellant was asked to identify the evidence upon which he relied he referred only to his affidavit of 6 October 2020.  That may have been an oversight, bearing in mind that the appellant represented himself and the affidavit of 23 October 2020 had been served upon the respondent.  Because I have concluded that the appellant’s reliance upon the second affidavit in this appeal would not affect the result of the appeal, it is not necessary to decide whether the appellant should be precluded from relying upon that affidavit for the first time on appeal.  My following reasons proceed upon the assumptions that the appellant filed an application to set aside the default judgment and a supporting affidavit on 30 July 2020, that application was mislaid without any fault by the appellant, and he filed a second application for the same order on 6 October 2020.
17. [17]
    Other aspects of the chronology of events are established by affidavit evidence given by Mr Hughes.  On 2 July 2020 Mr Hughes’ firm sent a letter addressed to the appellant (at the forwarding address Mr Hughes had obtained from the correctional centre) notifying the appellant that the assessment of damages had been set down for hearing in the District Court on 6 and 7 August 2020.  On 16 July 2020, solicitors retained by the appellant sent to the District Court Civil List Manager a letter advising that they acted for the appellant, he had been served with the civil claim at his brother’s address in Sydney by registered mail, the solicitors had not been properly instructed to review all of the materials required to prepare the defence case, and the appellant sought vacation of the hearing dates to allow time for filing of an appropriate defence.  After that correspondence was sent to Mr Hughes’ firm, on 17 July 2020 that firm wrote to the appellant’s solicitors conveying the respondent’s instructions that any application to adjourn or vacate the hearing date of the assessment of damages would be strongly opposed and enclosing a copy of the default judgment of 10 March 2020.
18. [18]
    As a result of the correspondence from the appellant’s solicitors, Sheridan DCJ listed the assessment for mention on 20 July 2020.  On that date an application by the appellant’s lawyers for an adjournment of the assessment hearing was refused by Sheridan DCJ.  A solicitor who appeared for the appellant informed Sheridan DCJ that the appellant’s solicitors were in the process of filing an application in the Supreme Court seeking an order that the default judgment be set aside.  Sheridan DCJ directed that any such application should be filed as a matter of urgency.  The application for an adjournment of the assessment was adjourned to a date to be fixed.  Following further correspondence and listings of the matter for mention, the hearing dates of 6 and 7 August 2020 were vacated.
19. [19]
    Mr Hughes stated in a letter of 27 August 2020 to the appellant’s solicitor that a search of the Court files suggested that no application had been filed by the appellant.  By letter of 28 August to the appellant’s solicitors, Mr Hughes stated that his firm had not heard further from the appellant’s solicitor in relation to the appellant’s intention to file an application.  Mr Hughes deposed that the appellant first served upon his firm an application to set aside the default judgment on 9 October 2020.
20. [20]
    The appellant attached to his notice of appeal against Applegarth J’s decision a document that appears to be an email from a deputy registrar to the appellant dated 9 December 2020, in which the Deputy Registrar acknowledged that on 30 July 2020 the appellant “attended the Registry to file an Application to Set Aside Judgment and an Affidavit, documents attached” and sought to have the application listed on 31 July 2020.  The purported copy email refers to all of the material on the file having been forwarded to Sheridan DCJ for consideration.  A subsequent paragraph of the email refers to the Deputy Registrar having conveyed the information in the email to Brown J on 22 October 2020.
21. [21]
    The appellant stated in his affidavit of 23 October 2020 that: he “first came to know about the said Default Judgment on or about July, 2020 as notified by the Plaintiff’s Solicitor for the District Court Costs Assessment matter”; from March 2020 until the date of that affidavit the appellant had been residing in Brisbane; on 20 July 2020 lawyers he had engaged appeared by telephone before Sheridan DCJ and applied for an adjournment of the assessment proceedings in the District Court, pending filing of an application in the Supreme Court seeking orders setting aside the default judgment; and the appellant personally signed and filed an “Application of Notice to Set Aside Default Judgment dated 30 July 2020 … at the Supreme Court Registry.”
22. [22]
    When seeking an adjournment before Applegarth J, the appellant submitted that he expected to be able to obtain evidence in support of his application to set aside the default judgment.  Any such expectation was not verified or supported by evidence.  Nor could any such expectation satisfactorily explain why the appellant did not serve his application to set aside the judgment, together whatever supporting evidence he could then adduce, until 9 October 2020.  Upon the evidence: the appellant knew from at least 13 September 2018 that the respondent had served him with her claim and statement of claim against him; the appellant had not received a positive response to the proposal in his letter of that date that “any further proceedings be withheld till I am in a better position to comment about the case and be in a better frame of mind”; the appellant’s solicitors were given a copy of the default judgment on about 17 July 2020; and by 20 July 2020 the appellant had personal knowledge of the default judgment.  The appellant’s affidavits do not satisfactorily explain why in those circumstances he took no steps to protect his interests in the claim against him until he learned of the default judgment, or why he did not serve upon the respondent any application to set aside the default judgment or any affidavit in support of such an application until 9 October 2020, which was some four and half months after he had learned of the default judgment.
23. [23]
    That consideration also does not favour the exercise of the discretion to set aside the default judgment, but the most significant of the discretionary considerations concerns the merits of any defence.  The primary judge observed that the appellant “has not placed before me evidence of a kind that would suggest that he has a strong defence to his claim”, and the appellant “asserts in a number of places in his affidavit that he has a strong defence, but he has not justified that by reference to evidence”.  An examination of the appellant’s affidavits confirms the accuracy of those observations.  The general assertions in the appellant’s affidavits to the effect that he has a strong defence are not evidence that he has a prima facie or substantial ground of defence.^[5]  The appellant adduced no evidence which suggests that he may have any viable defence.  This consideration strongly militates against exercising the discretion to set aside the default judgment.
24. [24]
    In my respectful opinion Applegarth J’s decision to refuse the appellant’s application to set aside the default judgment was unaffected by any error in the exercise of the discretion.  Upon the assumption that it is necessary to take into account the appellant’s second affidavit and to exercise the discretion afresh, for the reasons I have given the case for refusing to set aside the default judgment remains compelling.
25. [25]
    My reasons up to this point address the following grounds in the appellant’s notice of appeal against the orders made by Applegarth J on 19 November 2020: 1 – 4 (introductory narrative); 5 – 7, 9, and 19 (concerning service of the claim and statement of claim); 8, 10 – 18 (concerning the appellant’s case that he filed an application to set aside the default judgment and an affidavit on or about 30 July 2020, in addition to his application to set aside the default judgment and the affidavit filed on 6 October 2020); and 27 (a complaint that the appellant had not been given justice, which I have construed as comprehending a broad challenge to Applegarth J’s exercise of the discretion).
26. [26]
    Ground 26 contends that the order made by Applegarth J has not been provided to the appellant.  The order is in the appeal record.  The remaining grounds of appeal argue that the appellant was denied procedural fairness.  Ground 20 contends that the appellant’s application to set aside the judgment was first heard by Bradley J on 23 October 2020.  It is said that Bradley J granted the appellant an adjournment and noted that the appellant “had defence, it would be wrong not to give him an opportunity to defend himself”.  In the context of a successful application for an adjournment by the appellant, it cannot be accepted that Bradley J made a finding that the appellant had adduced evidence which established that he had a defence to the respondent’s claim.  In any case, no such evidence was adduced before Applegarth J.
27. [27]
    Grounds 21 and 22 and part of ground 23 contend that at the hearing on 19 November 2020 Applegarth J refused the appellant’s request for an adjournment, notwithstanding that, without prior notice to the appellant, the respondent had handed up to Applegarth J a written outline of submissions with a 12 page chronology.  The transcript reveals that Applegarth J criticised the conduct of the respondent’s counsel in not giving the appellant a copy of the respondent’s outline of submissions before the matter commenced at 12.47 pm.  The primary judge recorded that he was conscious that there was an application for an adjournment foreshadowed earlier.  During the following discussion, the appellant made submissions in support of an adjournment of the hearing with a view to obtaining additional documents.  The hearing was adjourned shortly after 1 pm and it resumed shortly after 2 pm.  The appellant had sufficient time during the adjournment to read all of the material given to him at the commencement of the hearing.  The appellant did not seek an adjournment for the purpose of reading the material given to him at the commencement of the hearing.  The appellant acknowledged he had been through the submissions for the respondent.  He added that it would have been better if he had got the submissions earlier, just as he had given his submissions to counsel for the respondent on the day before, but the appellant did not ask for further time to read that material.  There is no substance in those grounds of appeal.
28. [28]
    Upon a liberal construction of grounds 23 (in part) and 24, they contend that Applegarth J erred by denying the appellant a request for an adjournment to enforce a subpoena issued at the request of the appellant to one Dr Singh, who was thought by the appellant to have possession of medical records relating to the respondent.  Those medical records had not been produced to the appellant.  He regarded them as vital evidence in his favour.
29. [29]
    There is also no substance in these grounds.  Early in the hearing, Applegarth J referred to a submission by the appellant in his outline of argument that he understood that Dr Singh had submitted some material to the Court and the appellant had not been able to obtain a copy of that material.  When the hearing resumed after the adjournment already mentioned, the primary judge made available to the appellant and the respondent’s legal representatives the material that had been supplied to the registry in response to the subpoena.  After those documents were returned to Applegarth J, his Honour arranged for photocopies of them to be provided to the appellant and the respondent’s legal representatives.  The appellant was given an opportunity to read those documents.  He acknowledged there was nothing in them that took the matter any further.  Towards the end of the hearing before Applegarth J, the appellant submitted that if he were granted an adjournment he could write to a pathologist in Western Australia to obtain the relevant documents.  The appellant did not further explain the submission.  It was not supported by any evidence.
30. [30]
    There was no error in the reason given by the primary judge for refusing that application for an adjournment that “in the light of the provision to Dr Kumar today of the documents that he has subpoenaed, the basis for his application for an adjournment … that he was awaiting the documents … pursuant to a subpoena to Dr Singh is not a basis to grant the adjournment”.
31. [31]
    It is not necessary to discuss grounds 28 – 31, which merely state orders sought by the appellant.  The remaining ground of appeal, ground 25, recites what are said to be fears that there has been an element of “Judge Shopping”, apparently for the reason that the application to set aside the judgment had come before Bradley J, Bond J and Applegarth J, and the assessment matter had come before Sheridan DCJ and Jarro DCJ, “without any resolution of the matter without any legal basis”.  It seems that the application to set aside the default judgment was successively adjourned at the appellant’s request.  The delays in the progress of the assessment of damages in the District Court also should be sheeted home to the appellant’s conduct.  Both matters ultimately were resolved, and the manner in which they were resolved in each case was explained by published reasons.  There is no substance in this ground.
32. [32]
    The appellant’s notice of appeal against the orders made by Jarro DCJ contains 17 grounds.  Subject to one exception, the contentions in each of those grounds of appeal concern only the default judgment against the appellant on 10 March 2020, rather than the assessment of damages.  The reasons already given explain why none of those grounds of appeal should be accepted.
33. [33]
    The exception is ground 8.  It contends that the assessment of damages by Jarro DCJ on 9 October 2020 “is in breach of the Appellant right to natural justice and access to legal Appeal which was by way of 2 Notices of Applicant to Set Aside the Default Judgment …”.
34. [34]
    The evidence in the record book demonstrates that the appellant’s solicitors had ample notice that the hearing for the assessment of damage was ultimately listed to commence on 6 October 2020.  The appellant stated in his affidavit of 23 October 2020 that “the said matter was again re-listed for Cost Assessment for a 2 days hearing commencing 6 October 2020 and no direct correspondence was served on the Defendant…and no correspondence was received”, and  “all correspondence addressed to [the appellant’s solicitor] was finally forwarded to me by [them] stating that the said matter was re-listed and that [they] had under took to inform me of the said Court matter on or about Friday 2 October, 2020 and that Monday 5 October, 2020 was a declared public holiday”.
35. [35]
    Upon the footing that the appellant personally first learned of the 6 October 2020 hearing date on 2 October 2020, after his solicitors ceased to act for him, his affidavit contains no explanation of why he could not appear at the hearing four days later.  The mere fact that the appellant had filed an application or applications to set aside the default judgment does not explain why the appellant did not appear at the hearing for the assessment of damages.  He could have applied for an adjournment if he thought that was desirable.  If an adjournment were refused, he could have contested the assessment.  This ground also lacks merit.

Orders

36. [36]
    I propose the following orders:

1. The appeal in CA No 11891 of 2020 is dismissed with costs.
2. The appeal in CA No 13472 of 2020 is dismissed with costs.

37. [37]
    MULLINS JA:  I agree with Fraser JA.