AUSTRALIA Law and Practice Contributed by: Joachim Delaney and Ranjani Sundar, HFW
The decision in National Australia Bank Ltd v Human Group Pty Ltd [2019] NSWSC 1404 illus - trates that courts are prepared to grant orders protecting plaintiffs from the risk of prejudice suffered by reason of a stay of civil proceed - ings. This is balanced with the risk of prejudice to the accused in the conduct of their defence at a criminal trial. Overall, and subject to the court’s balancing of the aforementioned com - peting factors, fraud victims can, and ought to, take proactive steps in civil litigation to ascertain the whereabouts of, and recover, the misappro - priated funds. 2.6 Judgment Without Trial Summary Judgment A plaintiff may apply for a summary judgment to be heard on an ex parte basis, where there is evidence of the facts to substantiate the plain - tiff’s claim (UCPR r 13.1). Additionally, there must be evidence, rather than a mere opinion, to support the plaintiff’s belief that the defend - ant has no defence to the claim or part thereof (Cosmos E-C Commerce Pty Ltd v Sue Bidwell & Associates Pty Ltd [2005] NSWCA 81 [47]). For instance, a defendant’s failure to defend the claim may indicate that there appears to be no issue to be tried, as a result of the defend- ant failing to traverse the plaintiff’s allegations. Ultimately, however, the granting of a summary judgment is an exercise of discretionary power by the court. Onus of the Applicant In New South Wales, Rule 19.4 of the Legal Profession Uniform Law Australian Solicitor’s Conduct Rules 2015 (NSW) (regarding which rules are adopted in a uniform manner across the states and territories) requires that a solicitor, who seeks any interlocutory relief in an ex parte application, must disclose to the court all factual or legal matters that they are aware of, and that
the solicitor has reasonable grounds to believe would support an argument against granting the relief, or limit its terms adversely to the client. Equivalent rules exist in each state/territory. Default Judgment A plaintiff may seek a court order for a default judgment within 28 days of serving a state - ment of claim on the defendant if no statement of defence has been filed by the defendant. A default judgment is an order that is made against the defendant, without the court having heard the matter, due to the defendant’s failure to It is well established in Australia that a conten - tion of fraud “should be pleaded specifically and with particularly” (Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486; [2012] HCA 39 [26]). In Nadinic v Drinkwater (2017) 94 NSWLR 518, the NSW Court of Appeal explored a number of key principles relevant to the meaning of “fraud” at law and equity, the availability of recission as a remedy for fraud and the procedural conse - quences of alleging and finding fraud. Notewor - thy are the following with respect to pleading fraud as stated by Leeming JA at [45]–[49]. • A fraud allegation in the sense of deliber - ate falsehood or reckless indifference to the truth must be pleaded specifically and be particularised. This requires the party mak - ing the fraud allegation to “focus attention upon what it was that the person making the statement intended to convey by its making. And the pleading must make plain that it is alleged that the person who made the state - ment knew it to be false or was careless as to its truth or falsity” (citing Forrest v Austral - respond to the statement of claim. 2.7 Rules for Pleading Fraud
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