Default judgment – contumacious non-compliance with Court orders

The recent Federal Court case of Pieman v Monks Resources PL v Monks [2025] FCA 88 (Pieman v Monks) shows the lengths a plaintiff must go to before the Court will order default judgment based on ongoing failure by a defendant to comply with orders.  The case involved allegations of misleading and deceptive conduct, breaches of director duties, and a misapplication of company funds for the defendant’s own purposes and benefit.^[1]

Background to the case of Pieman v Monks

Pieman v Monks involved allegations by Pieman Resources (Plaintiff) that Mr Monks and Mr Johnson (Defendants) breached their duties as directors set out in sections 180 to 182 of the Corporations Act 2001 (Cth) by misapplying company funds for their own personal benefit.  The Plaintiff sought damages, however, the Defendants failed to comply with Court orders, amounting to ‘contumacious non-compliance’. 

The meaning of “contumacious non-compliance” was held by Derrington J at paragraph 25 to mean:

“Not complying with the obligations of litigants in this Court as under ss 37M and 37N of the Federal Court of Australia Act 1976 (Cth) (Federal Court Act), and, in particular, not complying with the obligation of clients and solicitors to ensure that matters are dealt with expeditiously, amongst other things.“^[2]

At paragraph 52, it was said that this contumacious non-compliance was compounded by “further delay and non-compliance”.^[3]

What were the acts that amounted to ‘contumacious non-compliance’?

Prior to the application for default judgment by the Plaintiff, the Defendants failed to comply with six (6) orders of the Court, including two (2) notices that needed to be responded to by a certain date.  The proceedings commenced on 18July 2024.^[4]

On 15 August 2024, the Defendants consented to an order requiring them to file their defence by 29 August 2024.^[5]  They failed to comply with this deadline.

Following further correspondence, the Defendants again consented to an order requiring them to file their defence by 12 September 2024.^[6]  The order included a provision that failure to do so would entitle the Plaintiff to apply for default judgment.  The Defendants filed their defence on 12 September 2024.^[7]  On this date, the Plaintiff issued:

1. a notice under rule 20.31 of the Federal Court Rules 2011 requiring the Defendants to produce documents referenced in their defence; and
2. a request for further and better particulars of the defence, with a deadline of 9 October 2024.

The Defendants failed to respond to either the notice to produce or the request for further and better particulars.  In particular, they did not comply with rule 20.31(2), which requires a response within four (4) days of service, setting out either a time and place for inspection, an explanation as to why the document is not in their control, or a claim of privilege with supporting grounds.

On 10 October 2024, the Court made orders by consent addressing both outstanding issues.  Specifically, it ordered:

• the Defendants to file and serve their response to the request for further and better particulars by 4:00 pm on 18 October 2024; and
• the Defendants to respond to the notice to produce by 4:00 pm on 18 October 2024.^[8]

The Defendants failed to comply with the request for further and better particulars entirely.  As for the notice to produce, they attempted to respond but the response lacked the requisite level of detail required by rule 20.31(2).

A hearing was held on 3 December 2024 regarding the Defendants’ continued non-compliance with the Court’s orders of 10 October.^[9]  At that hearing, the Defendants gave assurances that steps were being taken to comply that same day.  On that basis, the Court extended the deadline for compliance to 13 December 2024.  The Defendants again failed to comply.  As a result, the Plaintiff proceeded to apply for default judgment.

What was the Judge’s reasoning in awarding a default judgment?

Derrington J at paragraph 44 cited Yates J in Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606, which provides guidance that while the contumacious and contumelious delay occasioned by the Defendants disregard for the Court’s orders is of much significance, it is not decisive.^[10]  The Court must also consider whether the granting of default judgment would result in any injustice.

In addressing this issue, Derrington J at paragraph 46 considered whether there had been any compliance with the Court’s orders, even if delayed.^[11]  The Defendants claimed to have provided the requested information in two (2) letters dated 29 January 2025.^[12]  However, these were found to lack any meaningful response to the requests and to omit important information.  Derrington J agreed, noting there was no substantive response to the request for particulars and that there had been a “clear default in compliance with the Court’s orders.”^[13]

Derrington J also referred to Neskovcin J’s summary of the applicable principles in the case of Hugo Boss AG v Hardge [2024] FCA 1325 regarding a default judgment in similar circumstances, which states:

“The principles applicable to the discretion to enter a default judgment are well established and may be summarised as follows:

• the power to give default judgment against a party under r 5.23(2) remains discretionary, and  caution must be exercised when an applicant seeks orders against a defaulting respondent;
• the discretionary power to enter a default judgment is enlivened when an applicant applies to the Court for such an order and where a respondent is in default;
• for the purpose of r 5.23(2)(c), the Court needs to be “satisfied” on the face of the statement of claim that the applicant is entitled to the “relief” claimed and that the Court has jurisdiction to grant that relief.  The facts as alleged in the statement of claim are deemed to have been admitted by the respondent;
• in addition to the facts alleged in the statement of claim, the Court may permit recourse to further limited evidence but may not admit evidence that would alter the case as pleaded; and
• to be satisfied that an applicant is “entitled to” the relief claimed, the Court must be satisfied that each element of the relevant civil wrong involved is properly and discretely pleaded in the statement of claim.”^[14]

Derrington J concluded at paragraph 52 that the discretionary power under r 5.23(2) was enlivened due to the defendants’ ongoing failure to comply with Court orders.^[15]  Derrington J found that the defendants’ lack of any justification for their “contumacious and contumelious” non-compliance, along with their disregard for Court-imposed deadlines, warranted the exercise of the Court’s discretion to grant default judgment.

What are the key takeaways from Pieman v Monks?

Pieman v Monks serves as an authority for the principle that contumacious delay in of itself is not sufficient to warrant the granting of a default judgment.  Rather, it must be ensured that granting a default judgment does not result in any injustice.

Links and further references

Legislation

Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606Corporations Act 2001 (Cth)

Federal Court of Australia Act 1976 (Cth)

Federal Court Rules 2011 (Cth)

Cases

Chamberlain Group, Inc v Giant Alarm System Co, Ltd (No 2) [2019] FCA 1606

Hugo Boss AG v Hardge [2024] FCA 1325

Pieman v Monks Resources PL v Monks [2025] FCA 88

Further information

If you need advice on a litigious matter and a parties non-compliance with orders, please contact us for a confidential and obligation-free discussion:

Disclaimer

This article contains general commentary only.  You should not rely on the commentary as legal advice.  Specific legal advice should be obtained to ascertain how the law applies to your particular circumstances.

[1] Pieman Resources PL v Monks [2025] FCA 88, 5-6.

[2] Pieman Resources PL v Monks [2025] FCA 88, 25.

[3] Pieman Resources PL v Monks [2025] FCA 88, 52.

[4] Pieman Resources PL v Monks [2025] FCA 88, 5.

[5] Pieman Resources PL v Monks [2025] FCA 88, 8.

[6] Pieman Resources PL v Monks [2025] FCA 88, 9.

[7] Pieman Resources PL v Monks [2025] FCA 88, 10.

[8] Pieman Resources PL v Monks [2025] FCA 88, 15.

[9] Pieman Resources PL v Monks [2025] FCA 88, 18.

[10] Pieman Resources PL v Monks [2025] FCA 88, 44.

[11] Pieman Resources PL v Monks [2025] FCA 88, 46.

[12] Pieman Resources PL v Monks [2025] FCA 88, 46.

[13] Pieman Resources PL v Monks [2025] FCA 88, 49.

[14] Pieman Resources PL v Monks [2025] FCA 88, 40.

[15] Pieman Resources PL v Monks [2025] FCA 88, 52.

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