Trenevski v The Irish Restaurant and Bar Company Pty Ltd
[2006] QDC 7
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- Trenevski v The Irish Restaurant and Bar Company Pty Ltd[2006] QDC 7
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Trenevski v The Irish Restaurant and Bar Company Pty Ltd[2006] QDC 7
Trenevski v The Irish Restaurant and Bar Company Pty Ltd[2006] QDC 7
DISTRICT COURT OF QUEENSLAND
CITATION: | Trenevski v The Irish Restaurant and Bar Company Pty Ltd [2006] QDC 007 |
PARTIES: | Robert James Trenevski (Respondent/Plaintiff) v The Irish Bar & Restaurant Company Pty Ltd (Applicant/Defendant) |
FILE NO/S: | 784/05 |
DIVISION: | Civil |
PROCEEDING: | Application |
ORIGINATING COURT: | District Court |
DELIVERED ON: | 3 February 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 27 January 2006 |
JUDGE: | FORDE DCJ |
ORDER: |
|
CATCHWORDS: | APPLICATION TO SET ASIDE DEFAULT JUDGMENT – FAILURE TO APPEAR – PERSONAL INJURIES – DAMAGES ASSESSED – delay in setting the default judgment aside – defence to the action – lack of bona fide – prejudice to the plaintiff. Personal Injuries Proceedings Act, ss 7, 9, 10, 12, 13, 20, 32, 43 UCPR rr 290, 667 Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142 Arai v Sushi Train [2004] QDC 162 Australasian Asiatic Trading and Engineering Co Pty Ltd v Forsyth-Grant (1960) VR 94 Bailey v Marinoff (1971) 125 CLR 529 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Deatons Pty Ltd v Flew (1949) 79 CLR 370 DJL v Central Authority (2000) 74 ALJR 706 Ferguson v Calnan and Anor [2002] QSC 342 Gamser v Nominal Defendant (1976-1977) 136 CLR 145 General Credits (Finance) Pty Ltd (1978) Qd R 449 Gu v To [2005] QCA 480 JP Sproule v L E Long [2000] QSC 232. Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643 Kondis v State Transport Authority (1984) 154 CLR 672 Nicholls v Brisbane Slipways [2003] QSC 193 Rochfort and Anor. v Habashy and Anor. [2005] QCA 97 State of New South Wales v Lepore [2003] 212 CLR 511 Stevens v Brodribb Sawmilling Co. Pty Ltd. [1985-1986] 160 CLR 16 Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Limited (1984) 2 Qd R 447 Silk Textile Printers Ltd v Murray (1956) St. R. Qd. 496 Nicholls v Brisbane Slipways [2003] QSC 193 Taylor v Stratford [2004] 2 Qd R 224 Taylor v Taylor (1979) 143 CLR 1 The Commonwealth v Introvigne (1991-1992) 150 CLR 258 Wentworth v Attorney General for State of New South Wales (1984) 154 CLR 518 WR Carpenter Australia Ltd v Ogle [1999] 2 QdR 327 Yankee Doodles Pty Ltd v Blemvale Pty Ltd NO. 78 of 1998 Young v BL & ST Nominees Pty Ltd [2002] QSC 135 Jones and Forde “Personal Injuries Procedure in Queensland” LexisNexis (2005) |
COUNSEL: | Mr Dunning SC and Mr Murphy for the Applicant/Defendant Mr Newton and Mr Kidston for the Respondent/Plaintiff |
SOLICITORS: | Hopgoodganim Lawyers for the Applicant/Defendant Carter Capner Lawyers for the Respondent/Plaintiff |
Introduction
- [1]On 17 March 2003, the respondent/plaintiff was attending as a patron at premises known as Dicey Reilly’s. They were licensed premises of which the applicant/defendant was the lessee. The premises were located at Garden City Shopping Centre, Mount Gravatt. At or about 9.30. p.m., it is alleged in the Statement of Claim, that the plaintiff was assaulted by two persons, James Michael Dodrill and Peter John Schindler in the carpark, outside the premises whilst the plaintiff was walking to his car. He was repeatedly struck by either or both of Messrs. Dodrill and Schindler. The plaintiff suffered personal injuries. It is alleged that Messrs. Dodrill and Schindler were the servants and/or agents of the defendant or that the defendant is vicariously liable for the acts of Messrs. Dodrill and Schindler.
- [2]Default judgment was entered against the defendant on 3 May 2005. Damages were assessed at $72,964.08 plus costs by her honour Judge O'Sullivan and judgment given on 29 July 2005. The present application seeks to set aside the default judgment and so the subsequent assessment and judgment. The application filed on 14 December 2005 is made under rule 290 of the UCPR. It is accepted that the default judgment was entered regularly.
Issues for determination
- [3]The plaintiff by his counsel submits that rule 290 is not the appropriate rule once damages are assessed and judgment has been entered. It was submitted that the alternative would be to appeal the decision. The defendant in the affidavit material seeks to explain away its failure to appear and the delay from service of the notice under the Personal Injuries Proceedings Act on 25 June 2003 to 14 December 2005 when it filed the application to set aside the default judgment. The defendant further submits that it has a prima facie defence to the action. The plaintiff also relies upon a lack of bona fides by the defendant and prejudice to the plaintiff.
The efficacy of the application under rule 290
- [4]Mr. Newton for the plaintiff submits that the present application under rule 290 is inappropriate. He submits that the assessment was not obtained under rule 290 only the default judgment. Also, it was submitted that where the judgment is regularly obtained and proceeds to assessment, then different considerations apply. He referred to the decision of Australasian Asiatic Trading and Engineering Co Pty Ltd v Forsyth-Grant.[1] The provision of the rules in that case provided as follows:
“O XXVII r 15: Any judgment by default, whether under this Order or under any other of these Rules, may be set aside by the Court or a Judge.”
- [5]In that case, the defendant failed to appear and an order was made for liberty to enter final judgment. In fact judgment was entered prior to the final hearing date. Gavan Duffy J. refused to allow the defendant to rely on O XXVII r 15 as the judgment was not a judgment by default. He did grant the defendant an extension of time to appeal to the Full Court. In the present case there is an order on the file dated 9 September 2005, whereby judgment was given for the sum assessed, as well as costs.[2] Rule 290 of the UCPR relates specifically to Division 2 and setting aside default judgments. Rule 667 provides that the court may set aside an order where an order is made in the absence of a party. Rule 667(3) specifically excludes default judgments which are obviously covered by rule 290.
- [6]Mr Dunning SC submits that rule 284 is relevant as it refers to a default judgement for unliquidated damages. It allows a plaintiff to request a judgment conditional on the assessment of damages by a court under Chapter 13, Part 8, and for costs. Rule 284(3) allows a Registrar to give judgment. It follows, it is submitted, that as claims for unliquidated sums are part of the Division, rule 290 applies.
- [7]In the present case, the order of her honour Judge O'Sullivan was made in the absence of the defendant. The defendant had been served with a Notice of Hearing. That is not disputed. The position used to be that once a judgment finally disposing of a proceeding had been duly passed and entered, a court had no inherent jurisdiction to set aside that judgment.[3] That principle is to be distinguished from procedural orders.[4] It seems that rule 667 provides a basis for interfering after judgment, which was lacking at the time of Bailey v Marinoff.[5] Rule 667 seems to exclude default judgments yet rule 284(4) envisages a default judgment where damages are assessed. That is the present position with the additional fact that judgment was given by the Registrar after the assessment by a judge. The Registrar gave judgment under rule 511(3).
Legal principles applicable
- [8]As set out by McPherson J. in National Mutual Life Association of Australia v Oasis Developments Pty Ltd,[6] in the event that a default judgment has been entered regularly, the following issues are required to be determined:
- (a)Whether or not the defendant has given a satisfactory explanation for its failure to appear;
- (b)Whether or not there has been any delay in making the application;
- (c)Whether or not the defendant has a prima facie defence on the merits of the claim on which the judgment is founded.
- [9]In weighing up these factors, His Honour stated:
“Speaking generally, it may be said that it is the last of these considerations that it is the most cogent. It is not often that a defendant who has an apparently good ground of defence would be refused the opportunity of defending, even though a lengthy interval of time had elapsed provided that no irreparable prejudice is thereby done to the plaintiff.”
- [10]
- (a)The defendant’s conduct in the action before and after judgment;
- (b)The defendants good faith;
- (c)Whether the defendant shows a case on the merits;
- (d)Whether, if the applicant be let back in, irreparable wrong will be done to the party who has obtained judgment.
- [11]The court in the Surfers Paradise International Convention Centre case was concerned with O 39 r 33. It is in similar terms to rule 667(2)(a). In another case dealing with O 39 r 33, the Court of Appeal was prepared to set aside a judgment obtained in a summary way without pleadings and after a trial where the Court was satisfied that the mortgagor’s non-appearance when the order was made was not due to any fault on his part.[8] The factors which require consideration either under rule 290 or rule 667 are similar although there is a broad discretion under rule 667.[9] The Court of Appeal in Young’s case referred to the decision of MacKenzie J. in JP Sproule v L E Long.[10] In the latter case, the fact that the defendant had proper notice but did not appear was a discretionary matter going to the question whether the power to set aside the judgment should be exercised.[11] In order to do justice, it seems appropriate to apply the relevant factors under rule 290 to the present application, as has been submitted by the defendant.[12]
Failure to appear
- [12]For convenience, the chronology prepared by the plaintiff is attached as annexure ‘A’ to these reasons. It accurately reflects a summary of all of the steps and correspondence. Mr. Kenneth John Stockley deposed as to the reasons for the delay by the defendant. Mr. Stockley holds the position of General Manager of companies within the “Mulhern Group”. Since 29 September 2005, he also held an Enduring Power of Attorney for Mr. Mulhern who is the sole director of the defendant. The defendant is part of that group. The other companies are Mulhern Constructions Pty Ltd., Gladstone United Pty Ltd., Celtic Pacific Properties Pty Ltd., WAK Gladstone Pty Ltd., and H- Mac Holdings Pty Ltd. These businesses are operated out of the same premises and according to Mr. Stockley are “closely associated”.[13] Mr. Stockley deposes that he was very busy attending to the business of these other companies. It is not disputed that there was proper service on the defendant of various notices and proceedings since 25 June 2003.
- [13]Mr. Stockley states that he first became aware of the personal injury claim by the plaintiff towards the end of June 2003.[14] I was informed by Mr. Dunning S.C. that Mr. Stockley has legal training. Mr. Stockley accepts that notices under the PIPA are serious matters. He failed to pass them on the insurers promptly. The need now for notices to be served under PIPA throws, in my view, a further onus upon the defendant to explain the failure to file a defence within time. The notices which are given pre-action together with other requirements under PIPA make the proposed defendant even more aware that an action is likely to commence. The whole point of the legislation was to provide adequate notice to defendants and insurers in claims so that preliminary conferences could occur to avoid action if necessary. The notice requirements of PIPA are substantive law provisions and failure to comply has serious consequences.[15]
- [14]Mr. Stockley states that he was under considerable pressure from other sources including:
- (i)Dealing with a major dispute concerning property owned by Mulhern Constructions Pty. Ltd. This was resolved by August 2004;
- (ii)He was responsible for the purchase of land at Gladstone by Gladstone United Pty Ltd for $9,600,000.00. He was required to carry out the due diligence on the purchase. This was in August 2003;
- (iii)In June 2003, H-Mac Holdings Pty Ltd applied for and was granted approval to develop property next to Dicey Reilly’s. He was responsible for coordinating and setting up the liquor barn which opened in December 2003;
- (iv)There was a fire and subsequent court proceedings. The matter was settled in January 2005;
- (v)Joseph Dodrill and John Dodrill own 5% of shares in the defendant. A dispute arose in April 2004. Mr. Stockley was responsible for dealing with this. It has involved various pieces of litigation.
- [15]Mr. Stockley contends that these matters prevented him from being “proactive” in the claim by the plaintiff and dealing with the notices under PIPA. All Mr. Stockley had to do was to forward such notices under PIPA or notices of proceedings in court to his insurer whose solicitors would have taken over the matter and advised him as to what was needed. It is not suggested that any such step was taken or advice given as a result. It is clear, from the number of notices given to the Mr. Stockley, Mr. Mulhern and moreover the defendant, that the conduct of those parties has been to say the least contumacious. There were various orders of the court that were ignored including the orders of Judge O'Sullivan of 20 November 2004 requiring compliance with s 20(1)(b) of PIPA, the order of Judge Wilson of 17 February 2005 dispensing with a compulsory conference. Notices served pursuant to PIPA, service of the default judgment entered on 3 May 2005 and the notice of hearing of the assessment served on 6 July 2005 were not acted on. Reference is also made to the other letters of communication referred to in the Chronology. This is not a case of oversight or intermittent delay at various stages. Mr. Mulhern, the sole director of the defendant and 90% shareholder, was also served personally with the Claim and Statement of Claim on 17 March 2005.
- [16]For someone with legal training to ignore the notices and orders when there was an insurer available to assist, causes the explanations offered to be somewhat shallow and unacceptable. Mr. Stockley was more than aware of the serious nature and the probable consequences of not taking action to preserve the defendant’s position. It seems that Mr. Stockley was only prepared to act when a statutory demand for debt was served on the defendant on 25 November 2005, together with the judgment order.[16]
Delay in setting the default judgment aside
- [17]The explanations offered by Mr. Stockley in relation to the failure to appear also touch upon the delay aspect. Default judgment was entered on 3 May 2005. The default judgment, statement of loss and damage and list of documents were served on the defendant on 17 July 2005. Then some five months elapsed before the present application was made. In the interim, the defendant was served with the Notice of Hearing of Assessment on 6 July 2005. This took place on 29 July 2005 and so there was some three weeks where the defendant completely ignored or saw no need to act to avoid the consequences of the default judgment. This was similar to the case of National Mutual Life Association[17] where the director of the defendant company “assumed that they would be dealt with as claims in other proceedings then in being”. His honour, McPherson J., as he then was, commented that it was “not a particularly good starting point from which to make an application of the kind referred to”.[18] There is no valid explanation offered from the date of the default judgment until the date the present application was filed over seven months earlier.
- [18]The fact that Mr. Stockley has apologised is not decisive. Claimants who ignore notice requirements under PIPA often fail in their claims if they do not proceed expeditiously. Counsel for the plaintiff referred to s 32 PIPA and the discussion in Jones and Forde “Personal Injuries Procedure in Queensland”:[19]
“Plainly, s 32 will apply in proceedings subsequently issued. It prevents the provisions in the PIPA being outflanked by an argument that a party has complied with the applicable obligations for proceedings issued under the UCPR.”
- [19]Section 32 prevents a party from using a document in a subsequent court proceeding if there has been a failure to provide information including documents. In the present case, the defendant sought to place before the court by way of exhibits to Mr. Stockely’s affidavit, entries and records showing that Messrs. Dodrill and Schindler were employed by third parties at the material time. Leave was given to use those documents pursuant to s 32(2) of PIPA to allow the application to be decided on the merits.
- [20]Any failure to act, it is submitted for the defendant, is outweighed by the existence of a prima facie defence.[20] It is suggested that once served with the judgment that Mr. Stockley acted without delay. That submission fails to put the delay since receiving the default judgment itself on 17 May 2005 into perspective. The present case might be one of those few or exceptional cases to which reference is made by McPherson J. in the National mutual Life Association case where the failure to act and delay by the defendant prevents it from setting aside a default judgment even if it has a prima facie defence. It might not be necessary to decide that point here in light of the findings by me on the prima facie defence suggested by the defence.
Defence to the action
- [21]The consequences of the failure of the defendant to respond to the Notice of Claim under PIPA, is that it is now deemed that the notice given is a complying one and that the defendant is the proper respondent to the claim.[21] Mr. Dignan, solicitor for the plaintiff, deposed that the defendant was told to contact their insurers immediately.[22] The failure to comply with notices under the PIPA has been held to have serious consequences.[23] Although the present application is not being decided on the failure of the defendant to comply with the requirements of PIPA, in an appropriate case, a defendant may find that a defence cannot be relied upon which requires a court to ignore the pre-action requirements of PIPA.[24] It may become relevant if this matter is taken elsewhere. Presently, it has been considered as another factor against granting the order to set aside the default judgment as it touches upon the knowledge of the defendant as to possible proceedings.
- [22]The attempts now to set aside the judgment seem to ignore the consequences for a respondent who fails to act pursuant to its statutory duty under PIPA. Whether it is fatal or not has not been fully argued by the defendant on this application. Certainly, the plaintiff’s counsel referred to it in his written submissions.[25] The main thrust of the defence, is that neither Mr. Dodrill nor Mr. Schindler were the servants/agents of the defendant and that they were on a “frolic of their own”. It is suggested that they were employed by other entities.
- [23]The defendant says that it is central to the plaintiff’s case that Messrs. Dodrill and Schindler were crowd controllers acting in the course of their employment and with the actual or ostensible authority of the defendant. However, it should be remembered that the plaintiff pleads his case both as alleging negligence by the defendant in failing to supervise and instruct its crowd controllers and further that the defendant is vicariously liable. The first basis raises the issue of a non-delegable duty owed by the defendant as occupier and the plaintiff as invitor.[26] The vicarious liability issue raised the question as to whether the Messrs. Dodrill and Schindler were acting outside the scope or mode of their employment.[27] The defences that are suggested are as follows:[28]
“(a) James Michael Dodrill was not an employee of the Defendant. He was in the employ of Digital Design Services – a company with which the Defendant contracted to provide IT services and custom liaison management.”[29]
- [24]Mr. Stockley also states that such duties required Mr. Dodrill to act as a liaison officer between patrons and staff. Obviously, he was acting in that role on the evening in question. Mr. Dodrill was charged but the charge was not proceeded with. This is of little assistance except to say that the standard of proof in criminal matters is higher than that in civil cases. The statement of claim also states that Messrs. Dodrill and Schindler were negligent regarding the evictions of patrons and failing to ensure that patrons were safely evicted. In a loss adjusters report,[30] it is stated that the plaintiff removed a hat and left the bar. In fact the hat was a large Guinness hat and was on the head of Mr. Dodrill. The date of the assault was St. Patrick’s Day 17 March 2003. The plaintiff left the bar, dropped the hat before he reached the car and whilst waiting at the car was grabbed by a security guard and then hit and kicked by two persons.[31] This is the version supplied to police by witnesses, McCarty, Edwards, Shojaei and Wilson. No incident report was filed by the defendant’s agents. Three witnesses in the report identify Messrs. Dodrill and Schindler as the “security officers” who carried out the assault some 15 minutes after the hat was taken. According to the police report, even Mr. Dodrill saw Mr. Schindler striking the plaintiff.[32] Given that he was his supervisor that evening, his failure to act at that point could be relevant to the breach of duty owed. The report by the loss adjustor was tendered as an exhibit by the defendant on this application.[33] For present purposes, the negligent acts of Mr. Schindler would be sufficient to prove the case if he were acting as the servant or agent of the defendant and in the course of his duties.
- [25]The defendant submits that as Messrs. Dodrill and Schindler were not evicting or escorting the plaintiff from the premises and given the lapse of time, they were on a “frolic of their own”. This aspect is relevant on the question of vicarious liability.[34] In the case of State of New South Wales v Lepore,[35] Chief Justice Gleeson made the following statement, which is apposite:[36]
“It is clear that if the wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the edition in 1907, and in later editions: an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes – although improper modes – of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.… Intentional and criminal wrongdoing, engaged in solely for the benefit of the employee, presents a more difficult problem. Even so, employers may be vicariously liable for such wrongdoing, even in cases where the wrongdoing constitutes a flagrant breach of the employment obligations.”
- [26]The learned Chief Justice in Lepore’s case[37] referred to a decision of Deatons Pty Ltd v Flew.[38] A barmaid and her employer were sued in trespass by a plaintiff. The barmaid had thrown a glass into the face of the plaintiff. It was not part of her job to keep the peace in the hotel. The employer was held to be not liable. The High Court applied the Salmond test.[39] What the barmaid did in that case was not incidental to her duties.[40] In the present case, it is open to find that what Messrs. Dodrill and Schindler did was to pursue the plaintiff and recover the hat in carrying out their duties. They used excessive force in so doing. Gleeson CJ. observed:[41]
“On the other hand, as Jordan CJ pointed out in Deatons Pty Ltd v Flew, extreme and unnecessary violence, perhaps combined with other factors, such as personal animosity towards the victim, might lead to a conclusion that what is involved is an act of purely personal vindictiveness.”
- [27]It cannot be said that the present case is in that category. In any event, there is a legal basis for finding, as will be discussed, that the duty owed by the defendant to the plaintiff in the present case is not-delegable.
- [28]
- (a)The Defendant contracted with Celtic Protective Service to devise, implement and maintain security measures for the safety of the Defendant’s staff and patrons[43]
- (b)
- [29]It was suggested[45] that at the time of the assault that Messrs. Dodrill and Schindler were not implementing any security measures for the safety of the defendant’s staff or patrons. However, as pointed out in the report of the loss adjuster[46] the licensed premises of the defendant is adjacent to the car park. If something is taken from the possession of an employee of the defendant or a patron, then it touches upon the management of the establishment and the security of the patrons. It cannot be said that they were acting on a frolic of their own even if they delayed in carrying out their duties. The defendant relies on the case of Ferguson v Calnan and Anor.[47] for a contrary submission. However, a closer reading of the case would seem to support the proposition that the defendant is vicariously liable for any damage suffered by a patron even for the acts which were not authorised by the defendant provided that they were so connected with the acts which were so authorised that what was done was merely an improper mode of carrying out the authorised duties.[48] If an employee is acting outside the scope of his employment altogether, the employer will not be liable.[49] It is different if the servant or agent or independent contractor was carrying out duties of the principal as the latter had required. In the present case, Mr. Dodrill was charged with managing the defendant’s premises and securing the safety of the patrons. He had control over what Mr. Schindler did on the night in question.
- [30]Once it is established that the duties of Messrs. Dodrill and Schindler included the management of the establishment e.g. recovering property taken from that establishment albeit to the carpark, then the defendant is vicariously liable for the acts of its servants and/or agents even if those duties are carried out improperly.[50] Liability may be imposed where the wrongful act is done in apparent execution of authority which the defendant employer holds out the employee or agent as having. Cases of excessive punishment by a teacher, for example, may fall within that category and “so too will many cases where a store detective wrongfully arrests and detains a person or in that process assaults them.”[51] Preserving property and maintaining order is clearly part of those duties. Messrs. Dodrill and Schindler were over zealous in the performance of those duties. As submitted by the plaintiff’s counsel, there is “no denial of engagement or employment and there is no denial of authority” in the defendant’s material. James Dodrill described himself to police as the hotel manager. Even if the two men were employed by an independent contractor, an occupier owes a primary duty of care to patrons who are invited onto the premises.[52]
- [31]Mr. Schindler pleaded guilty to assaulting the plaintiff. He was allegedly employed by Celtic Protective Services Pty Ltd. It is submitted by the defendant’s counsel,[53] that even if the defendant is vicariously liable for the actions of security personnel who were not employees then it is submitted that he was acting outside the scope of his employment and was on a “frolic of his own”. This matter has already been dealt with. The recovery of property and ensuring that other patrons do not have items taken is part of the management and security of the premises. It was the duty of the security firm to implement and maintain security. Mr. Dodrill was the liaison officer in that respect between staff and patrons. He had a role to play and performed it in a most aggressive fashion amounting to a breach of his duty to the plaintiff. His employment by Digital Design Services does not get around the primary duty of care owed to patrons by the defendant and Mr. Dodrill as its manager.
- [32]The submissions of the defendant touched upon issues of credit concerning the plaintiff: versions of the event given to police, the amount of alcohol consumed and generally his reliability as a witness. Those inconsistencies do not attack the main theme in the case and that is that the plaintiff having taken a hat from Mr. Dodrill, was severely reprimanded for his conduct. It was part of the duties of security on that evening to manage the premises and to ensure the safety and security of patrons. It cannot be said that the defendant has established a prima facie defence to the assault. There are no affidavits from either Mr. Dodrill or Mr. Schindler. There is an attempt to get around this failure to exercise reasonable care by Mr. Dodrill. His family is involved in litigation with the defendant. There is no evidence which suggests that either Mr. Dodrill or Mr. Schindler were acting in self defence. Contrast the evidence in Ferguson v Calnan and Anor.[54] The plaintiff received a severe reprimand by way of assault.
- [33]The plaintiff by his counsel, submits that the material does not swear to a defence at all. He also submits that it is not bona fide as required by the authorities. The defendant is required to condescend to particulars.[55] I find that there has been a failure by the defendant to provide any defence to this claim even on a prima facie basis. The affidavit of merits relies on the independent nature of the employment of Messrs. Dodrill and Schindler. It does not distinguish the issue of primary duty or vicarious liability. On a factual basis, it does not come to grips with the duties of a security officer and those supervising them. Mr. Dodrill told police that he was the manager of the premises and employed Mr. Schindler. His family was heavily involved in the management of the defendant’s business. Mr. Dodrill had his hat taken and he and Mr. Schindler pursued the plaintiff.
Lack of bona fides or good faith
- [34]The lack of bona fides suggested by the plaintiff is on the bases that:
- The defendant took no steps to notify its insurer for nearly three years of the incident;
- The defendant has not attempted to make a claim seeking indemnity from a third party;
- The defendant became motivated in order to avoid the consequences of the judgment, namely the service of a statutory demand on the defendant.[56]
- [35]There is some force in these submissions. The contumacious conduct of the defendant has been referred to previously. Despite the submissions of the defendant’s counsel to the contrary,[57] a finding of a lack of bona fides is open in this case. The defendant has an ulterior motive now for avoiding the judgment. In light of the history there is a lack of honesty shown.[58]
Prejudice to the plaintiff
- [36]
“(a) The inevitable prejudice that now flows as we are all but six weeks from the limitation period and facing the possibility of having to go an reinvestigate the matter with the possibility of pursuing other parties not yet identified;
- (b)It is nearly nine months since the applicant was served with the default judgement and the failure to act at that time rather than after the respondent had been through the assessment process and received a final judgment in the proceedings is clearly prejudicial;
- (c)Even at this late stage, the nebulous suggestions about potential defences make it very difficult to understand the basis on which it could possibl[y] be said that there is a genuine defence to the proceeding and equally for the respondent’s solicitors to protect his position with an impending limitation period;
- (d)If it is now disputed that Mr Dodrill was the manager of the hotel and an employee, it gives rise to great difficulty for the respondent not only in complying with the PIPA process if there are now to be additional parties, but in terms of the costs of having to bring applications to extend periods or obtain leave to proceed, despite not having complied with the PIPA process;
- (e)In the event, even if the respondent can maintain the assessment as against the applicant, he is going to have to go and re-litigate this whole proceeding against, at this state, unknown parties but presumably not the proprietor of the premises who was the other party initially given a PIPA notice;
- (f)Even an indemnity costs order does not solve the problems confronting the respondent if he loses the benefit of his judgment. The applicant can still pursue its rights, if any, against any insurer it has and can certainly still pursue any rights it has, if any, against any security company but the potential difficulties of all those thing this far from the point of injury ought not be visited upon the respondent who had acted more than reasonably throughout the proceedings.”
- [37]The reference to problems arising under PIPA are of real concern. That act requires notices to be given to potential parties within a month of giving instructions to a solicitor to act on a claimant’s behalf.[61] The whole point of ss 10 and 12 is to require a respondent to provide a basis to the claimant to show that it is not the appropriate respondent or that there are other respondents. Its failure to do so has dire consequences under PIPA, viz. it is deemed to be the appropriate respondent in the event that it fails to respond to the notice. That occurred in the present case. Also, there are real problems for the plaintiff in attempting to find and serve the potential respondents within the limitation period. An application to commence given the urgency of the situation can be made under s 43 of PIPA. The plaintiff may not recover those costs of pursuing for example Celtic Protective Services as it seems that it is no longer registered. No submissions were made as to the financial position of Celtic Protective Services or Digital Designs or whether an insurer stands behind them. Mr. Stockley stated that he “was currently making inquiries with the insurer of Celtic Protective Services in relation to this matter to determine their position”.[62]
- [38]The plaintiff also relies upon the general proposition that delay can cause prejudice and affect the justice of the case.[63] In the present case, it is not known if the witnesses who support the plaintiff’s case are available. Given the allegation of inconsistencies in the plaintiff’s version of events, the availability of the witnesses referred to in the police report or their ability to recall the events has not been addressed by the defendant. This is another factor to be taken into account. The submission by the defence that an order for costs, on this application, will compensate the plaintiff, cannot apply to the likely PIPA application.
Summary
- [39]The application to set aside the default judgment is refused. The defendant has failed to discharge the onus of proof in relation providing a satisfactory explanation for its failure to appear. Mr. Stockley or Mr. Mulhern could have passed on notices under PIPA or the originating proceedings to the defendant’s insurers. The defendant failed to act for over seven months after the default judgment was entered. It failed to act for some five months after the damages were assessed and judgment entered. The material filed by the defendant has failed to satisfy me that there is a prima facie defence on the merits. It failed to exhibit a draft defence.[64] Had it been necessary to decide the point, the defendant’s failure to respond to the claim under PIPA meant that it was deemed to be the proper defendant.[65] It is another factor which is relevant in deciding to refuse this application.
- [40]The plaintiff has established some real prejudice in the present case. It cannot recover its costs against the defendant if it is required to make applications under PIPA to issue proceedings urgently, or to join potential respondents if those respondents are impecunious. These matters including the availability of potential witnesses ought to have been dealt with by the defendant to avoid a finding of prejudice in the present case. Even in the absence of prejudice, the defendant would have been unsuccessful in its application to set aside the default judgment.
Costs
- [41]The contumacious conduct of the defendant has been discussed. This conduct was unreasonable. It puts the present case into a special or unusual category. It is misconduct which has caused loss of time to the court and the plaintiff. The particular facts of this case warrant an order that costs be paid other than on a standard basis. [66]
Orders
- The application to set aside the default judgment obtained on 3 May 2005 is dismissed.
- It is ordered that the defendant do pay the plaintiff’s costs of and incidental to this application on an indemnity basis.
Footnotes
[1] (1960) VR 94.
[2] See rule 511(3) which empowers the Registrar to give judgment for the sum assessed.
[3] Bailey v Marinoff (1971) 125 CLR 529 per Barwick CJ at 530.
[4] Wentworth v Attorney General for State of New South Wales (1984) 154 CLR 518 at 526.
[5] See the remarks of Barwick CJ in Gamser v Nominal Defendant [1976-1977] 136 CLR 145 at 147.
[6][1983] 2 Qd. R. 441 at 449, applying the statement of principle from Aboyne Pty Ltd v Dixon Homes Pty Ltd [1980] Qd R 142 per Kelly J. The Court of Appeal in Rochfort and Anor. v Habashy and Anor. [2005] QCA 97 has recently affirmed that principle.[para.4].
[7] Surfers Paradise International Convention Centre Pty Ltd v National Mutual Life Association of Australasia Limited (1984) 2 Qd R 447. Reference was made to Aboyne Pty Ltd, op. cit.
[8] WR Carpenter Australia Ltd v Ogle [1999] 2 QdR 327 at 334.
[9] Young v BL & ST Nominees Pty Ltd [2002] QSC 135; Taylor v Taylor (1979) 143 CLR 1.
[10] [2000] QSC 232. His Honour was applying rule 67(2)(a). The original order was made under s 38 of the Property Law Act 1974.
[11] Ibid. para [8].
[12] DJL v Central Authority (2000) 74 ALJR 706 at [189] per Callinan J; Gu v To [2005] QCA 480 at [69-70] per Jerrard JA.
[13] Para. 1 of the affidavit filed 14 December 2005.
[14] Ibid. para. 5.
[15] s 7 PIPA; Nicholls v Brisbane Slipways [2003] QSC 193.
[16] Ibid. p 6.
[17] Op.cit. p. 450C
[18] Op.cit. p. 450D.
[19] LexisNexis (2005), para. 6.162.
[20] Exhibit 2, para. 25.
[21] ss 10, 12 and 13, PIPA
[22] affidavit of Mr. Dignan filed 23 January 2006 para. 13.
[23] Taylor v Stratford [2004] 2 Qd R 224 at 228-229; Kash v SM & TJ Cedergren Builders [2004] 1 Qd R 643 at 645 and Arai v Sushi Train [2004] QDC 162 at [4]-[5].
[24] See the discussion in Gu v To Op Cit [13] Per McMurdo P.; [66-71] per Jerrard JA.
[25] Exhibit 1 pages 5-7.
[26] The Commonwealth v Introvigne [1991-1992] 150 CLR 258 at 271 per Mason J.
[27] Introvigne ibid. at 279 per Brennan J.
[28] Exhibit 2 para. 11.
[29] Para. 3 of the affidavit of Mr. Stocklley sworn 27 January and filed by leave on that day.
[30] Exhibit MJS1 to the affidavit of Mr. Smith filed on 27 January by leave.
[31] Exhibit RJT01 to the affidavit of the plaintiff.
[32] Exhibit RJT 01 to the affidavit of the plaintiff.
[33] Op. cit. affidavit of Mr. Smith.
[34] State of New South Wales v Lepore [2003] 212 CLR 511 at 535 per Gleeson CJ.
[35] Ibid.
[36] Ibid. p. 536.
[37] Ibid. p 538.
[38] (1949) 79 CLR 370.
[39] Ibid.
[40] Lepore, ibid, p. 539.
[41] Ibid, p 540.
[42] Exhibit 2 p. 11.
[43] Affidavit of Kenneth John Stockley sworn 14 December 2005, Sheet 7, and 15 December 2005, paragraphs 61 to 65.
[44] Affidavit of Kenneth John Stockley of 14 December 2005, Sheet 7.
[45] Exhibit 2, para. 14(i)
[46] Op.cit.
[47] [2002] QSC 342
[48] Ibid. para. 13
[49] Ibid.
[50] Lepore, op. cit. at 591-2 per Gummow and Hayne JJ.
[51] Ibid.p. 592, 594.
[52] Kondis v State Transport Authority (1984) 154 CLR 672 at 685-687 per Mason J; Stevens v Brodribb Sawmilling Co. Pty Ltd. [1985-1986] 160 CLR 16 at 30-31 per Mason J., per Wilson and Dawson JJ. at p. 43-45 and Deane J. at p. 50-53; New South Wales v Lepore, op.cit, per Gleeson CJ at 531, per Gaudron J. at 551, per. Gummow and Hayne JJ. at 599.
[53] Exhibit 2, p. 6.
[54] Op. cit.
[55] General Credits (Finance) Pty Ltd (1978) Qd R 449 at 456; Silk Textile Printers Ltd v Murray (1956) St. R. Qd. 496 at 497-8.
[56] Affidavit of Mr Dignan filed 23.01.06 pages 43-47.
[57] Transcript, p 36, lines 5-21.
[58] “Words and Phrases Verbally Defined”, 3rd Ed, Butterworths, p 321.
[59] Op. cit. 449.
[60] Exhibit 1 p. 7.
[61] s 9(3)(b) PIPA.
[62] Affidavit sworn 14 December 2005, last sheet, para. 4.
[63] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551.
[64] Yankee Doodles Pty Ltd v Blemvale Pty Ltd NO. 78 of 1998, an unreported decision of Atkinson J. 23 June 1999.
[65] ss 10, 12 and 13 PIPA.
[66] Colgate-Palmolive Company & Anor. v Cussons Pty Limited (1993) 46 FCR 225, approved in Di Carlo v Dubois & Ors.[2002] QCA 225 at [37].