Summary of Recent Cases – Civil Procedure

An application for committal for contempt was refused where it could not be proved to the required criminal standard that the Claimant had deliberately and dishonestly presented a fraudulent claim

Bruce Samuel Montgomery v Carl Brown,

QBD, 8/4/11

The applicant applied for the committal of the respondent for contempt of court on the basis that he had advanced a dishonest claim for which he had been awarded damages for personal injury following an RTA. After the claim was settled documents were discovered which suggested that the Claimant had deliberately and dishonestly presented an inflated claim. The court had to be satisfied that the statements which the Claimant had made were false, he knew them to be false when he made them, and that at the time they were made they would have, if persisted in, been likely interfere with the course of justice, and he knew they would be so likely to interfere. The Claimant accepted that some of the statements that he had relied upon were misleading, however he averred this was due to his carelessness and irresponsibility rather than evidence of a deliberate attempt to mislead the court. Considered as a whole, the evidence did not prove to the required criminal standard that the Claimant had acted dishonestly with intent to pursue a false claim or had appreciated he was advancing a false claim.

Judgment in default pursuant to a Part 23 application was not a judgment on the merits

Football Dataco Ltd & 5 ORS v (1) Smoot Enterprises Ltd (2) Ransona Ltd

Ch D, 14/04/11

Default judgment was not, in any circumstances, a judgment on the merits. The provisions in r. 12.4(2) and r. 12.10 requiring a Part 23 application were triggered not by anything connected to the legal foundation for the cause of action but by aspects either of the relief sought or of the manner in which the Defendants had been served out of the jurisdiction. The requirement in r 12.11(1) that it must appear to the court that the claimant was entitled to judgment had to be interpreted in the light of the circumstances in which an application was required. Rule 12.11(1) did not require the court to second-guess an assertion in the particulars of claim that, as a matter of law, the facts alleged provided the claimant with a cause of action.

May 22, 2011 В· Editorial Team В· Comments Closed
Posted in: Cases