LAWS4001 Lecture Notes - Lecture 12: Default Judgment, Summary Judgment, Fide

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Week 12 – Judgment, Appeals and Enforcement
The CPA confers important powers on the court:
s 56 - "just, quick and cheap resolution of the real issues".
s 90 - general power of the court Civil Procedure Act 2005 - s 90 Judgments generally
s 91 - effect of dismissal of proceedings
s 98 - Courts power as to costs
s 42.1 - general rule that costs follow the event
s 42.2 - general rule as to assessment as to costs
s 100 - Interest up to judgment
s 101 - Interest after judgment
Judgment and Case Management
Johnson v Johnson [2000] HCA 48
“justice must both be done, and be seen to be done. It is based upon the need for public
confidence in the administration of justice. "If fair-minded people reasonably apprehend
or suspect that the tribunal has prejudged the case, they cannot have confidence in the
decision.”
Verdicts are not the same as judgments: Verdicts are findings of fact made by juries. In
most civil cases in New South Wales, there is no jury – findings of fact are made by the
judge and are recorded in the judgment.
A judgement is the binding final decision of the court, other decisions are orders. A
decision on an interlocutory application, such as one extension of time or concerning
discovery, is an order.
Issue estoppel
“A judicial determination directly involving an issue of fact or of law disposes once for all of the
issue, so that it cannot afterwards be raised between the same parties or their privies.” (Blair v.
Curran )
Issue estoppel is thus concerned with the determination of issues
Res judicata
Concerned with the remedy or relief granted in a given set of circumstances
The distinction between res judicata and issue-estoppel is that in the first, the very right or
cause of action claimed or put in suit has in the former proceedings passed into judgment,
so that it is merged and has no longer an independent existence
While in the second, for the purpose of some other claim or cause of action, a state of fact
or law is alleged or denied the existence of which is a matter necessarily decided by the
prior judgment, decree or order
Both doctrines bind the parties and their privies to accept a final judicial decision of a
question between the parties as correct
oThe parties and their privies are bound by the judgment or order into which any
cause of action or right to relief has passed (res judicata) and by the
determination of any issue which was the necessary legal justification or
foundation for the prior decision (issue estoppel).
Anshun Estoppel
Port of Melbourne Authority v. Anshun Pty. Ltd [1981] HCA 45; (1981) 147 CLR 589
Anshun estoppel is a form of res judicata
oIt would be unreasonable not to plead a defence if, having regard to the nature of the
plaintiff's claim, and its subject matter it would be expected that the defendant would
raise the defence and thereby enable the relevant issues to be determined in the one
proceeding
oIn this respect, we need to recall that there are a variety of circumstances, some
referred to in the earlier cases, why a party may justifiably refrain from litigating an
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issue in one proceeding yet wish to litigate the issue in other proceedings e.g.
expense, importance of the particular issue, motives extraneous to the actual
litigation, to mention but a few
oThe likelihood that the omission to plead a defence will contribute to the existence
of conflicting judgments is obviously an important factor to be taken into
account
oThis means judgments maybe contradictory may not be pronounced on the same
cause of action – declare rights which are inconsistent in respect of the same
transaction
oIf it is so closely connected with the subject matter of that action that it was to be
expected that it would be relied upon as a defence to that claim and as a basis
for recovery by the authority for Anshun
oThis is designed to foster public and private interests by encouraging parties to
advance all their related claims or defences at the one time, thereby diminishing
unnecessary duplication of crucial and other effort
oA subsequent defendant may be able to raise the principle (i.e. raise the fact that the
appellant lost in the first instance in the first case & should have raised it then) even
though he or she was not involved in the earlier case (Rippon v Chilcotin (2001))
oRedowood Pty Ltd v Link Market Services: where the parties are different, failing to
take appropriate action in the earlier proceedings has to be so unreasonable as to
amount to an abuse of process for the estoppel to apply
o“Could and should” changed to “it has to be so relevant as to make it unreasonable
not to raise it” (Champerslife v Manojlovski)
SUMMARY DISPOSAL
1. Default judgment Part 16
-When D fails to file a defence within 28 days (or affidavit)
-Notice of Motion: Form 38 for default judgment liquidated claim, & Affidavit of
Service [SOC & Affidavit in support]: of proof of debt (proving the SOC was served and
on what date, and to show time has elapsed with no action or correspondence)
Elements to set aside: Borowiak v Hobbs [2006]
(1) Bona fide defence on the merits
(2) Why they deserve to set aside, explain the delay and why the default
occurred
(3) Interests of justice that you may be allowed to defend the matter on the
merits of the case (Borowiak v Hobbs)
(4) Prejudice to the P if the default is set aside (set out a chronology: Dunwoodie
v Teachers Mutual Bank Ltd)
(5) Do the interests of justice require that a defendant be allowed to defend a matter
on the merits.
(6) D is penalized by awarding costs to OS
(7) Evidence to prove this must be drafter and apply to the court
For a court to set aside a default judgment, an affidavit must be prepared to show;
A defence on the merits. A draft defence should be prepared to annex to the affidavit
An explanation for why you were unable to appear; and
An explanation for any delay in applying for the default judgment to be set aside.
In deciding if the judgment is to be set aside, the court will have regard to;
Whether there is a satisfactory explanation for the failure to appear?
Is there a delay in bringing the application such as to preclude defendant from obtaining
relief?
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