Default judgment against the State is available, but the Claims By and Against the State Act 1996 narrows it considerably.
Section 12(3)
Where in a claim against the State the State is in default within the meaning of the National Court Rules, then notwithstanding that a plaintiff’s claim for relief is for a liquidated demand, judgement shall not be entered against the State for the sum claimed unless the claim relates to a debt only, and in all other cases judgement shall be entered for damages to be assessed and, where appropriate, for costs.
Under Order 12 Rule 27(1) of the National Court Rules 1983, a plaintiff whose claim is for a liquidated demand only may enter judgment for a sum not exceeding the sum claimed.
Section 12(3) removes that against the State except where the claim relates to a debt only. Everywhere else, even on a liquidated demand, judgment is for damages to be assessed.
The practical effect is that a plaintiff who obtains default judgment against the State usually still has to prove the amount at an assessment of damages under Order 10 Division 3.
The exception is narrow. A claim for goods sold and delivered at an agreed price, or for money lent, is a debt. A claim for damages for breach of contract quantified in the pleading is not — even though it may be a liquidated demand in the ordinary sense.
Where the claim is genuinely for a debt, plead it as such and be ready to demonstrate that character.
The longer periods
The State is in default only after the period in section 9 has expired — 60 days on a writ in the National Court, 30 days on a cross-claim, 90 days on a Constitution section 57 application, 90 days on a District Court summons — or such further time as the court … upon sufficient cause being shown, allows.
Section 9 opens “notwithstanding anything in any other law”, so the ordinary 14 days under Order 8 Rule 4 has no application.
On an endorsed writ, the sequence is: not less than 30 days for the notice of intention to defend under Order 4 Rule 11, then 60 days for the defence. An application made before that has run is premature and will fail.
Order 12 Rule 34
Judgement shall not be entered against a defendant under this Division unless — an affidavit is filed proving due service of the writ or notice of the writ, or the writ endorsed by the defendant’s solicitor accepting service is produced — and an affidavit is filed proving the default of the defendant on which the plaintiff relies.
Service on the State is governed by section 7: on the Departmental Head of the Department responsible for justice matters or the Solicitor-General, by personal service or by leaving the document with the person apparently occupying the position of personal secretary, within the statutory hours of 7.45 a.m. to 12 noon and 1.00 p.m. to 4.06 p.m. on a working day.
So the affidavit should record the officer served, the method, and the time — in addition to the Order 6 Rule 18 requirements of by whom, the day of the week and the date, and the manner of service.
Section 5 comes first
Before any question of default arises, the claim must be one that lies against the State. Under section 5(1), no action to enforce any claim against the State lies against the State unless notice in writing of intention to make a claim is given.
An application for default judgment invites the State to raise that point. A plaintiff should be in a position to exhibit the notice and prove it was given in time and in the prescribed manner.
Section 12(1) and (2)
(1) No exemplary damages may be awarded against the State unless it appears to the court that, regardless of the nature of the claim, there has been a breach of Constitutional rights so severe or continuous as to warrant an award of exemplary damages. See exemplary damages.
(2) Notwithstanding anything in the National Court Rules, a court giving judgement against the State may not include any order as to time or method of payment for satisfaction of the judgement.
Section 12(2) means the familiar order under Order 12 Rule 4 — that a money judgment be satisfied within 14 days of service of the minute — cannot be made against the State.
Payment instead follows the statutory process in section 14: a certificate in Form 1 issued under section 13(2), served on the Solicitor-General, endorsed within 60 days, and then satisfied by the Departmental Head responsible for finance within a reasonable time out of moneys legally available — possibly by instalments.
And under section 13(1), execution or attachment, or process in the nature of execution or attachment, may not be issued against the property or revenue of the State.
A default judgment against the State is worth having, but it is not the end of the matter. In most cases it establishes liability and leaves damages to be assessed; and even then, payment runs through the section 14 machinery rather than through Order 13 enforcement.
Note finally that under Order 12 Rule 8(2)(a) the Court may, on terms, set aside or vary a judgment entered under the default judgment Division — see setting aside a default judgment.
Sources
- Claims By and Against the State Act 1996 — ss 5, 7, 9, 12–14
- National Court Rules 1983 — O 4 r 11; O 6 r 18; O 8 r 4; O 10 Div 3; O 12 rr 4, 8, 27, 34, Div 3; O 13
Before relying on anything here, read the current text of the National Court Rules 1983 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.