Davies, C.A. v. Pagett, R.C. [1986] FCA 124

Davies, C.A. v. Pagett, R.C. [1986] FCA 124

Leave to appeal was warranted because the application raised a general question of importance about the kind of prejudice that may justify refusing a defendant leave to defend on the merits. The primary judge's discretion miscarried because the appellant showed a prima facie defence, the respondents showed no particular prejudice caused by the delay, and general concern about court delays, litigation anxiety, professional discipline or deterrence was not a proper substitute for prejudice in the particular case. The default judgments therefore should have been set aside on terms as to costs and expedition.

Jurisdiction
Australia
Judgment Date
10 April 1986
Procedural Posture
Appeal From the Supreme Court of the Northern Territory Concerning Dismissal of Applications to Set Aside Interlocutory Judgments Entered in Default of Defence / Application for Leave to Appeal and Appeal
Outcome
Leave to appeal granted; appeals allowed; orders of the Supreme Court of the Northern Territory made on 16 July 1985 set aside; default judgments set aside on terms.
Legal Topics
['default Judgment' 'setting Aside Default Judgment' 'leave to Appeal' 'judicial Discretion' 'delay in Civil Litigation' 'prejudice']
['practice and Procedure' 'civil Procedure'] ['default Judgment' 'setting Aside Default Judgment' 'leave to Appeal' 'judicial Discretion' 'delay in Civil Litigation' 'prejudice']

Case Brief

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Procedural Posture

Appeal From the Supreme Court of the Northern Territory Concerning Dismissal of Applications to Set Aside Interlocutory Judgments Entered in Default of Defence / Application for Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether leave to appeal should be granted from interlocutory orders dismissing applications to set aside default judgments.' "Whether the primary judge's discretion miscarried in refusing to set aside default judgments where the appellant showed a prima facie defence and the respondents showed no specific prejudice." 'Whether general concern about delays in civil litigation and litigation anxiety could justify refusing to set aside default judgments.']

Ratio Decidendi

Leave to appeal was warranted because the application raised a general question of importance about the kind of prejudice that may justify refusing a defendant leave to defend on the merits. The primary judge's discretion miscarried because the appellant showed a prima facie defence, the respondents showed no particular prejudice caused by the delay, and general concern about court delays, litigation anxiety, professional discipline or deterrence was not a proper substitute for prejudice in the particular case. The default judgments therefore should have been set aside on terms as to costs and expedition.

Court Disposition

Leave to appeal granted; appeals allowed; orders of the Supreme Court of the Northern Territory made on 16 July 1985 set aside; default judgments set aside on terms.

Orders

  • ['Leave to appeal be granted.' 'The appeal be allowed.' 'The orders made by the Supreme Court of the Northern Territory on 16 July 1985 be set aside.' 'The default judgment entered on 29 June 1984 be set aside.' "The appellant's solicitors pay to the respondent the costs of the respondent incurred in entering the...