Iselin v Logan Area Group Apprenticeship
[2006] QDC 97
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Iselin v Logan Area Group Apprenticeship[2006] QDC 97
- Add to List
Iselin v Logan Area Group Apprenticeship[2006] QDC 97
Iselin v Logan Area Group Apprenticeship[2006] QDC 97
DISTRICT COURT OF QUEENSLAND |
|
CITATION: Iselin v Logan Area Group Apprenticeship/Traineeship Scheme Ltd 2006 [ QDC] 097
PARTIES:
GARY BRIAN ISELIN | Plaintiff |
V
LOGAN AREA GROUP APPRENTICESHIP/TRAINEESHIP SCHEME LTD | Defendant |
FILE NO/S: BD3263/05
DIVISION:
PROCEEDING: Application
ORIGINATING COURT: District Court, Brisbane
DELIVERED ON: 28 February 2006
DELIVERED AT: Brisbane
HEARING DATE: 28 February 2006
JUDGE: McGill DCJ
ORDER: Default judgment set aside with costs
CATCHWORDS:
PRACTICE - Default judgment - setting aside - judgment after breach of statutory requirement as to service irregular
WorkCover Queensland Act 1996 s. 306(3)(a)
COUNSEL: | S.B. Whitten for the plaintiff |
| B.L. Hoare for the defendant |
SOLICITORS: |
|
DISTRICT COURT | No BD3263 of 2005 |
CIVIL JURISDICTION
JUDGE McGILL SC
GARY BRIAN ISELIN | Plaintiff |
and
LOGAN AREA GROUP APPRENTICESHIP/TRAINEESHIP SCHEME LIMITED trading as GROUP TRAINING AUSTRALIA (ACN 010 799 809) | Defendant |
BRISBANE
..DATE 28/02/2006
HIS HONOUR: This is an application to set aside a judgment which was signed on the 11th of January of 2006. The defendant submits that the judgment was irregularly entered because it was based on service which had been effected on the defendant contrary to section 306(3)(a) of the WorkCover Queensland Act 1996.
It was admitted on behalf of the plaintiff that the service on the defendant had not occurred in accordance with that provision of that Act, but it was submitted that that did not make the service irregular for the purposes of an application to set aside a default judgment. Rather, it was submitted that the appropriate consequence of the failure to comply with that section was that the defendant ought to have filed a conditional notice of intention to defend and applied under rule 16 to set aside the service on the basis that it was contrary to section 306(3); but it seems to me that that argument really demonstrates that the service was irregular.
If service could be effected regularly for the purposes of the rules, notwithstanding a failure to comply with section 306(3), then there would not be any basis upon which it could be challenged under rule 16 and a conditional notice of intention to defend would have been unjustified.
A default judgment has long been recognised as a proceeding where the requirements of the law must be strictly complied with and, in the present case, in my opinion, that extends to the requirements of section 306(3)(a). In the absence of any order under paragraph (b) of that sub-section, in my opinion, where there has been a failure to comply with that requirement, any default judgment signed on the basis of service outside that time limit is necessarily irregular and the defendant is therefore entitled, ex debito justitiae, to have the default judgment set aside.
In those circumstances it is well established by current law in this State that there was no need to show a defence on the merits. So I will order that the judgment, signed on the 11th of January 2006, be set aside.
...
HIS HONOUR: In relation to the question of costs, when a judgment is irregularly entered, on the face of it, the ordinary order is that the plaintiff pays the defendant's costs to the application.
The defendant in this case has sought cost on the indemnity basis. There were two matters particularly relied on. One was that the plaintiff's solicitors have been advised or their attention has been drawn specifically to the failure to comply with section 306 prior to the time of the default judgment when the judgment was signed and, indeed, to a procedure which could be adopted to overcome that difficulty.
It seems to me that the final letter of the 15th of December from the solicitors for the defendant, solicitors for WorkCover, clearly indicates a willingness to cooperate in relation to obtaining the necessary order at minimal cost, and that was in the context where in an earlier letter from the solicitors for the plaintiff the making of an application for that order had been foreshadowed. So this is not a situation where the plaintiff's solicitors were unaware of section 306 at the time the default judgment was signed.
It was also suggested that there had been a lack of candour in relation to the affidavit material, but it may be that the situation is not entirely clear. Although it might have appeared as at the 21st or the 22nd of October that there had been service effected, events which occurred later might have given rise to some doubt and be responsible for the passage in the letter in early November, that there was some uncertainty at that stage about the date of service.
With regard to the question of notice, I certainly think that it is very bad professional practice to sign default judgment in circumstances where a plaintiff knows that the defendant has solicitors acting for the defendant, unless there is prior notice to those solicitors, unless there is reason to think that the defendant is not going to defend the proceedings anyway, and I think that a failure to give such notice before signing a default judgment is ordinarily a matter which is relevant in relation to costs, but that is because the application, indeed the default judgment, could probably have been avoided if there had been notice.
In the present case I think it unlikely that the defendant would have filed a notice of intention to defend. The defendant's position, and I think it was an appropriate position, was that it was entitled to say that we do not have to respond to service because of the failure to comply with section 306(3) and in those circumstances I suspect that if there had been notice given, the defendant's response may very well have been that, if that is what you are going to do, go ahead, but on your head be it, as indeed it has been.
So I suspect that the absence of notice is not quite as important as it otherwise would have been. I am conscious that the Court of Appeal has warned that indemnity costs should not be too readily ordered in cases where there seems to be a failure to do things properly. That was the view expressed in Di Carlo v Dubois [2002] GCA 225, and, in view of that approach, and because I am not persuaded that there was any deliberate misconduct on the part of the plaintiff's solicitors, I will not order indemnity costs in this matter.
I think that the approach of the plaintiff's solicitors was misconceived but I am not prepared to conclude that it actually reached the stage of being misconduct. So I simply order that the plaintiff pay the defendant's costs of the defendant's application to be assessed. Now, in relation to the plaintiff's application that is not opposed.
On the plaintiff's application I will order the time for service of the claim and statement of claim on the defendant be extended to the 21st of October 2005 and I am making that order pursuant to section 306(3)(b) of the WorkCover Queensland Act of 1996.
...
I will order the plaintiff pay the defendant's cost of the application to be assessed in any event. That is on the plaintiff's application
...