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District Court 28 November 2025

AA v BB

[2025] NSWDC 504

Assault & violence
CIVIL PROCEDURE APPLICATION FOR DEFAULT JUDGMENT DEFENDANT WISHES TO PLEAD SELF DEFENCE DISCRETIONARY CONSIDERATIONS

Citation: AA v BB [2025] NSWDC 504
Court: District Court of New South Wales
Date: 28 November 2025
Judge: Abadee DCJ

Background

The parties are former spouses who divorced in August 2024. In April 2024, they were both present at a rugby league game watched by their 12-year-old child. A physical altercation occurred between them in public that afternoon. The plaintiff alleged the defendant approached him from behind and struck him in the face with a clenched fist, causing chronic nasal bone fractures and a deviated septum.

In October 2024, the defendant pleaded guilty in the Local Court to assault occasioning actual bodily harm and was sentenced to a conditional release order without conviction. The plaintiff then commenced District Court proceedings for damages in battery.

The defendant was served with the originating process in May 2025 but did not file a defence by the required date. Default judgment was entered against her on 27 June 2025. She subsequently filed a notice of motion to set that judgment aside, relying on a proposed defence of self-defence, namely that she pushed the plaintiff to protect their child from being removed.

  • Whether the defendant was validly served with the originating process
  • Whether the defendant had a bona fide and arguable defence to the battery claim, notwithstanding her earlier guilty plea in the Local Court
  • Whether the prior guilty plea precluded her from raising self-defence in the civil proceeding, including through the operation of issue estoppel, Anshun estoppel, or the abuse of process doctrine
  • How the relevant discretionary considerations should be weighed in determining whether to set aside the default judgment

Decision

Service: The court found that the defendant had been personally served with the statement of claim, relying on the process server's evidence. The defendant's own email correspondence, sent shortly after she claimed not to have been served, acknowledged receipt of the documents. This undermined her denial of service, though the court noted she was unrepresented at the relevant time and appeared genuinely unaware of the obligation to file a defence.

Arguable defence and the guilty plea: The respondent argued that the defendant's guilty plea in the Local Court created an estoppel preventing her from asserting self-defence in the civil proceeding. The court considered whether issue estoppel, Anshun estoppel, or abuse of process applied. It noted the careful distinctions in the applicable authorities, including the statutory provisions under the Evidence Act 1995 (NSW) (ss 91-93) governing the use of criminal convictions in civil proceedings, and the Civil Liability Act 2002 (NSW) (ss 52-53) which addresses the effect of criminal conduct on civil liability. The court accepted that the defendant's proposed self-defence case, though complicated by the guilty plea, was not so clearly untenable as to fail the threshold of being bona fide and arguable for the purposes of setting aside a default judgment.

Discretionary considerations: The court weighed several factors. The defendant's delay in responding to the proceedings was explained, at least in part, by her lack of legal representation and her limited understanding of civil procedure obligations. The plaintiff retains his judgment in the interim and is not without remedy. Most significantly, the court treated as the weightiest consideration the fact that a successful self-defence argument would extinguish the defendant's liability entirely: denying her the opportunity to advance that case would cause her serious prejudice. The court also noted that the overriding purpose under the Civil Procedure Act 2005 (NSW) (ss 56-60), to facilitate the just, quick and cheap resolution of proceedings, supported allowing the matter to proceed on its merits.

Orders Made

  • The default judgment entered against the defendant on 27 June 2025 was set aside pursuant to r 36.16(2) of the Uniform Civil Procedure Rules 2005 (NSW).
  • The plaintiff was granted leave to amend his statement of claim by 2 December 2025.
  • The defendant was to file and serve a defence by 9 December 2025.
  • The plaintiff was to file any reply by 23 December 2025.
  • The proceeding was referred to mediation, to occur by 13 February 2026.
  • The proceeding was adjourned for further directions before the Sydney Civil List Judge on 20 February 2026.
  • Liberty to apply on two days' notice to the Civil List Judge.
  • The defendant was ordered to pay 50% of the plaintiff's costs of the motion to set aside the default judgment.

Key Takeaways

  • A prior criminal guilty plea does not automatically foreclose a self-defence argument in subsequent civil proceedings for battery; the threshold for an "arguable" defence in a default judgment setting-aside application is not a high one, and the court refused to treat the plea as conclusively determinative at this interlocutory stage.
  • The potential for a complete defence to extinguish all liability is a weighty discretionary factor favouring the setting aside of a default judgment, and the District Court treated it as the most material consideration in this application.
  • Where a defendant is unrepresented and demonstrates limited understanding of civil procedure obligations, this may mitigate (though not excuse) delay in filing a defence, particularly in the context of a first default.
  • The Evidence Act 1995 (NSW) provisions governing the use of prior convictions in civil proceedings (ss 91-93), together with the Civil Liability Act 2002 (NSW) provisions concerning criminal conduct (ss 52-53), formed part of the legal framework the court examined in assessing the effect of the guilty plea on the proposed civil defence.
  • Costs were not awarded entirely against the plaintiff despite the defendant's motion succeeding: the court ordered the defendant to pay 50% of the plaintiff's costs of the motion, reflecting that her failure to engage with the proceedings initially contributed to the need for the application.

Legislation and Cases Referenced

Legislation:
- Civil Liability Act 2002 (NSW), ss 52-53
- Civil Procedure Act 2005 (NSW), ss 56-60
- Crimes Act 1900 (NSW), ss 59, 418
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9-10
- District Court Rules 1973 (NSW), rr 13.4, 14.28
- Evidence Act 1995 (NSW), ss 91-93, 178
- Uniform Civil Procedure Rules 2005 (NSW), rr 13.4, 14.28, 36.15-36.16

Cases:
- General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
- Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
- Rogers v The Queen (1994) 181 CLR 251
- D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
- Tomlinson v Ramsey Food Processing Pty Ltd (2015) 256 CLR 507
- Croucher v Cachia (2016) 95 NSWLR 117
- UBS AG v Tyne (2018) 265 CLR 77
- Presidential Security Services of Australia v Brilley (2008) 73 NSWLR 241
- Strbak v The Queen (2020) 267 CLR 494
- RPS v The Queen (2000) 199 CLR 620
- MTH v State of New South Wales [2025] NSWCA 122
- Zhengzhou Lvdu Real Estate Group Co Ltd v Shu (No. 2) [2025] NSWSC 405
- P2 v D2 [2019] NSWDC 84
- J & M McNamee Holdings Pty Ltd v Mungerie Vale Pty Ltd [2019] NSWCA 283
- Arthur J S Hall v Simons [2002] 1 AC 615
- R v Donovan [1934] 2 KB 498