kea92153

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No. 454 of 1991

BETWEEN:

JAMES ALBERT HOGG
Plaintiff

AND:

J ISHERWOOD-HICKS PTY LTD
Defendant

CORAM:	KEARNEY J

RULING

(Delivered	25 June 1992)

By summons filed on 23 June 1992 the defendant applied to have set aside ex debito justitiae, an interlocutory judgment secured by the plaintiff on
12 February 1992, for default by the defendant in filing its defence.

The writ issued on 16 December 1991; it was endorsed with a statement of claim.	It was served on
18 December; notice of appearance was filed on 23 December. On 7 February 1992 the plaintiff filed a 'Request for
Judgment' stating:-

"Please sign judgment against the defendant - - - for damages to be assessed."

This Request was clearly filed pursuant to r21.02(1) which provides that where a defence is not served within the time limited by the Rules "the plaintiff may enter or apply for judgment against the defendant in accordance with this Order."	In its form, it was a request under r60.03(3).

The distinction between entering judgment and applying for it may be noted.	As the succeeding Rules make clear, a judgment applied for is one which may be given by the Court.	A judgment which is entered is a judgment entered in the records of the court on the demand of the plaintiff, pursuant to his right under the Rules to do so. Here the plaintiff clearly intended to enter interlocutory judgment against the defendant for damages to be assessed, under r21.03(1)(b).

The Request was supported by an affidavit by Hillary Chiknaikin of 6 February, filed on 7 February, in which the deponent stated, inter alia:-

"3.	On the 30 January 1992 I wrote to the defendant's solicitors seeking a Defence within 7 days.

4.	As at the date of swearing this Affidavit no Defence has been received from the Defendant."

These two documents, the Request and the supporting affidavit, were accompanied by a form entitled "Judgment in Default", in which a blank appears against the words "DATE INTERLOCUTORY JUDGMENT ENTERED:".	The
incomplete form was consistent with the request under r60.03(3).	This document was ultimately signed by the Master, sealed with the Court seal, and against the words "DATE INTERLOCUTORY JUDGMENT ENTERED:" appear the
handwritten words "12 February 1992", written by the Master. Since the plaintiff clearly intended to enter judgment on
7 February he should have inserted that date and filed the document for authentication under r60.03(1).

On 10 February 1992 - that is between the date on which the Request was filed and the date on which the Master actually entered judgment - the defendant served its defence.

By an affidavit of 13 April (filed 23 June) supporting the summons of 23 June, Mr Crane deposed that he served the plaintiff's solicitors with the defence at the court registry on 10 February.	He was later informed by a Court officer that "somehow Judgment had been signed on

12 February 1992."	Mr Crane's affidavit sufficiently specifies the irregularity on which he relies.	He later sought to have the judgment of 12 February set aside, by consent; this was unsuccessful.

Mr Noonan for the plaintiff submitted that the judgment of 12 February was regularly entered under r21.02 and should only be set aside, under r21.07, on the defendant filing an affidavit disclosing a defence on the merits and explaining the reason for the default and for the delay in applying to set aside the judgment.	Further the plaintiff should be afforded an opportunity to show any prejudice which would result from setting aside the judgment, which could not be adequately compensated by a suitable award of costs.

It can be seen that the difference between the parties is that Mr Crane contends that the judgment was entered irregularly and so should be set aside ex debito justitiae, irrespective of whether the defendant has a defence on the merits or delayed in applying to have the judgment set aside, while Mr Noonan contends that the judgment was entered regularly and should be set aside only if the matters mentioned above are satisfied.

The defence should have been served thirty days after the appearance was entered on 23 December 1991; see r14.04(a). On the face of it, the last day for serving a defence was 22 January 1992. However, the period from
24 December 1991 to 9 January 1992 is excluded from this computation, as a vacation period; see r3.04(1).	So the thirty day period in fact expired at the close of business on 7 February.	The plaintiff filed its Request for Judgment on 7 February.	This was premature.	The plaintiff was entitled to enter judgment on or after 8 February. Accordingly the plaintiff's application for judgment was improperly founded and the judgment entered pursuant thereto on 12 February must be set aside for that reason alone, ex debito justitiae.

There is a further reason why this judgment should be set aside.	When a judgment is entered, no judgment exists until there is authentication in terms of O.60.	The entering of a judgment and its authentication are effected by the same act.	In this case entry of judgment occurred on
12 February (r60.02(1)), and amounted to a 'slip', and was of no effect, as a defence had by that time already been served.

I should add that I consider that where, as here, a solicitor has entered an appearance, the practice of

"snapping on" a default judgment, without notice, immediately upon the expiration of a period prescribed by the Rules, should be strongly deprecated.	It serves no useful purpose.		It increases the costs of litigation unnecessarily.	It should form no part of the practice of the law in Darwin.

The defendant must have its costs of this application.

Orders accordingly.

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