Egan v Posman [2018] QDC 203

DISTRICT COURT OF QUEENSLAND CITATION: Egan v Posman [2018] QDC 203 PARTIES: GREGORY MARK EGAN (Plaintiff) v KISAKIU POMALAT POSMAN T/A POSMAN KUA AISI LAWYERS (Defendant) FILE NO/S: 404/17 DIVISION: Civil PROCEEDING: Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 28 September 2018 (delivered ex tempore) DELIVERED AT: Brisbane HEARING DATE: 28 September 2018 JUDGE: Porter QC DCJ ORDER: 1. Pursuant to Rule 290 UCPR the default judgment made on 4 April 2018 is set aside. 2. There be no order as to costs. CATCHWORDS: PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – DEFAULT JUDGMENT – SETTING ASIDE – GENERALLY – where default judgment was entered against the defendant – where the plaintiff now applies to set aside the default judgment – whether judgment should be set aside in absence of the defendant. Cases Cusack v De Angelis [2008] 1 Qd R 344 Egan v Posman [2018] QDC 53 Legislation Uniform Civil Procedure Rules 1999 (Qld) rr 27(3), 290 COUNSEL: T G Lambert for the plaintiff SOLICITORS: Rostron Carlyle Lawyers for the plaintiff [1] On the 4th of April 2018, I made an order that judgment be entered against the defendant, a lawyer located in and practicing in Papua New Guinea, in favour of the plaintiff, an erstwhile member of the Queensland Bar in respect of legal fees alleged by the plaintiff -- 1 of 3 -- 2 to be owing for work done by the plaintiff as a barrister in relation to legal matters in Papua New Guinea. That judgment was entered as a default judgment by me. Ordinarily, such an order would be made by the registrar, but for the reasons set out in my judgment published 4th of April 2018,1 I considered it was appropriate that this court make the order for default judgment. [2] At the time of the hearing, as I recall, and when delivering the judgment, I speculated about whether a default judgment of this court would be enforceable in Papua New Guinea. It now appears that those speculations turned out to be well-founded, although I make no claim to have been aware of the precise reason why. The basis upon which a default judgment of this court is not able to be enforced in Papua New Guinea is explained in the outline of argument by Mr Lambert at paragraphs 6 to 8. In brief, the difficulty is this: although Papua New Guinea has a statutory basis for reciprocal enforcement of judgments, the statutory regime does not apply for the reasons identified by Mr Lambert, to permit a default judgment of this court to be enforced under that statutory regime, and that seems to be confirmed by the decision of the National Court. [3] The plaintiff, therefore, has a default judgment which cannot be enforced in Papua New Guinea. There are two other matters that are relevant; one is that the plaintiff swears to an inability to find any property in this jurisdiction to execute against, not surprisingly. And also, that the statutory scheme would permit a judgment of the Supreme Court to be enforced. In those circumstances, Mr Egan applies to this court to set aside the default judgment, because the position in terms of assets and the statutory scheme relevant to the jurisdiction in which assets are, or are likely to exist, doesn’t apply to this court, making the judgment inutile. The power of the court to do so might be incidental to its power to exercise jurisdiction to determine matters within jurisdiction in any event. But I don’t have to trouble myself with that question. [4] Rule 290 of the UCPR provides the court may set aside a judgment by default, and any enforcement of it on terms the court considers appropriate. The scope of that rule shouldn’t be read down. It’s expressed in plenary terms and in construing it, one should have regard, amongst other things, to the purposes for which the rules exist identified in rule 5. That approach to the rule is supported by Cusack v De Angelis [2008] 1 Qd R 344, where Muir JA, with whom McMurdo P and Lyons J agreed, observed at [21], in effect, that the rule isn’t limited to variations to deal with irregularly entered judgments. It seems to me that there is no reason why the discretion conferred under section 290 wouldn’t respond to this unique situation. This case is an example, which demonstrates the salutatory nature of the proposition that discretions that are broad and confirmed by statute shouldn’t be read down according to any particular limits other than those dictated by the scope of the provision properly construed. I am therefore satisfied that I’ve got power under that rule to set aside the default judgment for the reasons articulated above. [5] The only remaining question is whether it is appropriate for me to do that in the absence of the defendant. Mr Lambert refers me to rule 27(3) UCPR which states in statutory form the well-known proposition that the court generally should not hear and determine matters in the absence of a party affected or likely to be affected by the court’s order. Rule 27(3) provides that if an application is not served as required by subrule (1), the court must not hear and decide the application unless the court considers it just to hear 1 Egan v Posman [2018] QDC 53. -- 2 of 3 -- 3 and decide the application on the day set for hearing and one of the following applies: the court is satisfied delay by giving notice of the application will cause irreparable harm to another person, the court is satisfied the respondents will suffer no significant prejudice if it hears and decides the application or the respondents to the application consent. [6] Mr Lambert relies on the second of those three considerations. In my view, it is appropriate to hear the matter without the defendant being present. I consider that appropriate because the order was made in circumstances where the defendant, having been served, as I think I found in my judgment previously published, chose not to appear, and also because I am satisfied the respondent will suffer no relevant prejudice if I hear the application in his absence. [7] It might be thought it could be argued that the prejudice that would exist would be that the respondent at present is the subject of a judgment that cannot be enforced, and that he might then be exposed to a judgment that can be enforced. However, Mr Lambert makes the correct point, in my view, that if the default judgment is set aside and the matter is taken up in the Supreme Court, the application, and, indeed, the proceedings will have to be service again, and Mr Posman will have the opportunity to contest any step taken in those proceedings. [8] In all the circumstances, I think it is appropriate to proceed notwithstanding that Mr Posman is not here, and he has not been served with this application. [9] In all the circumstances, therefore, I am satisfied that it is appropriate to set aside the default judgment, and I make orders in terms of the draft which I will initial, date and place with the papers. -- 3 of 3 --