Monks v Pieman Resources Pty Ltd

This was a dispute between three companies and two individuals who were alleged to have breached duties owed as directors. The companies claimed damages and said, in broad terms, that company funds had been misapplied for the individuals’ own purposes and benefit. That was the substantive commercial dispute in the proceeding.

But the Full Court appeal was not, at least on the material available here, a decision about whether those allegations were made out. The appeal arose because the defendants repeatedly failed to comply with procedural steps after filing their defence. The plaintiffs asked for further and better particulars of the defence and issued a notice to produce documents referred to in it. The defendants did not comply, consented to extension orders, still did not comply, changed solicitors, gave assurances through their new solicitor that compliance would occur, and still missed the extended deadline. The plaintiffs then applied for default judgment, which the primary judge granted. The defendants sought leave to appeal that result.

The Full Court was dealing with an application for leave to appeal and, if leave were granted, an appeal from the primary judge’s orders made on 30 January 2025 entering default judgment. Because the decision was interlocutory, leave was required under s 24(1A) of the Federal Court of Australia Act 1976 (Cth).

That procedural setting matters. The applicants were not simply asking the Full Court to decide the case afresh. They had to show that the interlocutory decision was attended with sufficient doubt to warrant reconsideration and that substantial injustice would result if leave were refused. The Court also approached the matter as an appeal from a discretionary judgment. That means the applicants had to do more than show that another judge might have made a different decision. They needed to identify the kind of error described in House v R, such as acting on a wrong principle, taking into account irrelevant matters, failing to take into account material matters, making a factual mistake, or reaching a result so unreasonable or plainly unjust that error could be inferred.

The applicants’ proposed grounds, as recorded in the reasons, argued in substance that the primary judge had treated delay as decisive, failed to give proper weight to explanations for the delay, failed to consider prejudice to the respondents and prejudice to the applicants, failed to have proper regard to the stage of the proceeding and the overarching purpose in s 37M, and made factual findings such as describing the conduct as contumacious and contumelious without evidence. One proposed ground about inadequate reasons was no longer pressed after the primary judge published written reasons.

The chronology is important because the Court’s response was shaped by repeated non-compliance rather than a single missed step. The proceeding began on 18 July 2024. The defendants first consented to an order to file their defence by 29 August 2024 and missed that deadline. They then consented to a further extension to 12 September 2024, with an express provision allowing the plaintiffs to apply for default judgment if no defence was filed by then. The defence was filed on 12 September 2024.

After that, the plaintiffs sought particulars of the defence and documents referred to in it. On 25 September 2024, they requested further and better particulars and filed a notice to produce under r 20.31. The defendants did not answer the request for particulars and did not produce the documents sought or otherwise comply with the rule. On 10 October 2024, they consented to orders requiring compliance by 18 October 2024. They again failed to comply. The Full Court recorded that no response was provided to the request for particulars and that the purported response to the notice to produce lacked the degree of detail required by r 20.31(2).

The defendants changed legal representatives in about November 2024. At a case management hearing on 3 December 2024, their new solicitor told the primary judge that he would finalise the particulars with his clients and that the orders would be complied with by 13 December 2024. In that context, the primary judge made a further order extending time to 13 December 2024 and ordered the defendants to pay the plaintiffs’ costs forthwith arising from the earlier non-compliance and the hearing.

That second extension was also not met. The plaintiffs then filed an application for default judgment on 17 December 2024. The hearing was listed for 30 January 2025. On 29 January 2025, the defendants sent two letters purporting to provide the missing responses and produced a single document, which they said was the only available document responsive to the notice to produce. The primary judge heard the application the next day and entered default judgment.

The applicants relied on affidavits from their solicitor, Mr Stewart, and from Mr Johnston. Mr Stewart said he had been engaged around 12 November 2024 and received the file from the previous solicitors in a piecemeal way over the following two weeks. He said he emailed the applicants on 4 December 2024 about the need to comply with the Court’s orders, underwent surgery on about 5 December 2024, returned to work the following week, and followed up again on 13 December 2024. He said the response received that day was not full and detailed, that further information and clarification were needed, and that because of the nature and complexity of the proceedings he formed the view that counsel needed to be briefed and any response would need to be settled by counsel.

He also gave evidence about difficulties briefing counsel in December 2024 and January 2025, including one counsel returning the brief because of another matter, another returning it because of lack of capacity, and a third returning it on 29 January 2025 because he did not have time and capacity to prepare and appear adequately at the hearing on 30 January 2025. Mr Stewart annexed a response to the request for particulars and the notice to produce and said that, although not yet settled by counsel, he believed it was adequate. He also said he had instructions and believed there was a serious question to be tried.

Mr Johnston’s affidavit responded to an affidavit from the respondents’ solicitor directed to the merits of the claims. The Full Court recorded that his responses generally did not rise above admissions, bare denials, conclusionary contentions or statements that more detailed responses could only be provided after discovery. Importantly, the Court also recorded that Mr Johnston did not seek to provide any explanation for the applicants’ failure to comply with the second extension orders.

The primary judge was critical of this evidence. The reasons, as summarised by the Full Court, say the applicants had not identified any substantive basis for their failure to comply with either the first or second extension orders. The primary judge considered that Mr Stewart tended to skirt around the issue and that the explanations showed, if accepted, only a derisory attempt to comply with the second extension orders. The judge noted, among other things, the absence of any mention of a meeting with clients on 3 December 2024, the failure to annex the 4 December email said to have been sent to clients, and the suggestion from the 13 December follow-up email that no response had been received to the earlier request. The judge regarded the surgery evidence as irrelevant to the key point because the delay was attributed to the clients’ failure to respond. The judge also considered that if the issues were difficult and complex, that would have been obvious from the pleadings and did not depend on waiting for client input.

The Full Court referred to rr 5.22 and 5.23 of the Federal Court Rules 2011 (Cth). For present purposes, r 5.22(b) provides that a party is in default if it fails to comply with an order of the Court. Rule 5.23(2) then allows the other party to apply for a range of orders, including judgment, if a respondent is in default.

The Court also referred to authority explaining how that discretion works. In Lenijamar Pty Ltd v AGC (Advances) Ltd, Wilcox and Gummow JJ said the power is conditioned on one circumstance only, namely failure to comply with an order directing a step in the proceeding. The extract records that there is no formal requirement of intentional default or contumelious conduct, no formal requirement of inordinate and inexcusable delay, and no formal requirement of prejudice to the other side, although those matters may still be significant in the exercise of discretion.

That is important for business readers. It means a party cannot safely assume that default judgment is only a risk in extreme or deliberate misconduct cases. Repeated failure to comply with orders can be enough to enliven the power. The Court then exercises a discretion in light of the circumstances, including the history of the proceeding, the explanations offered, the seriousness of the default, and the need to manage cases consistently with the Court’s overarching purpose.

The Full Court also set out the orthodox appellate principles for discretionary judgments. There is a strong presumption in favour of the correctness of the primary decision, and the appeal court does not interfere merely because it would have exercised the discretion differently. That framework made the applicants’ task difficult from the outset.

The Full Court’s reasons summarise several findings made by the primary judge. The primary judge found that the applicants had not identified any substantive basis for their failure to comply with either set of extension orders. The judge concluded that no real attempt had been made to comply with the second extension orders between 3 December and 13 December 2024. The judge also considered there was a startling absence of evidence of any serious attempt to overcome the non-compliance after 13 December 2024.

That last point was especially significant. The primary judge emphasised that there had been no application to the Court for a further extension of time, no request to the respondents for an extension, and no explained steps taken to ameliorate the non-compliance. In other words, the problem was not only that deadlines had been missed. It was also that the applicants had not taken the procedural steps that courts usually expect when a party genuinely cannot comply on time.

For the appeal, those findings mattered because they framed the issue as one of discretionary case management based on a sustained pattern of conduct observed by the primary judge. Appellate courts are generally slow to disturb that kind of decision unless a clear error is shown.

The Full Court dismissed the application for leave to appeal dated 11 February 2025 and ordered the applicants to pay the respondents’ costs, as taxed or agreed. That means the applicants did not obtain leave to challenge the default judgment entered by the primary judge.

Because the text available here is truncated before the Full Court’s full analysis of the proposed grounds is completed, care is needed in drawing broader doctrinal conclusions from the case. Even so, the formal orders and the reasoning that is available show a clear procedural outcome. The Court was not persuaded to reopen the primary judge’s discretionary decision in circumstances where the applicants accepted they were in default of the second extension orders and where the record showed repeated non-compliance, inadequate responses and no timely application for further relief.

This case should be read as a litigation management decision, not as a final statement on directors’ duties or unfair contract law. The National Practice Area listing includes commercial contracts, banking, finance and insurance, but the dispute described in the reasons was about alleged breaches of duties by directors and the appeal itself was about default judgment procedure.

For businesses, the practical message is that pleadings, particulars and document production are connected. If your defence refers to documents, the other side may issue a notice to produce. If your pleading is broad or unclear, the other side may seek further and better particulars. If the Court orders you to respond, those obligations need active management inside the business, not just passive reliance on external lawyers.

Changing solicitors, holiday periods, file transfer issues, internal delay in giving instructions and difficulties briefing counsel may all be real problems. But they are not automatic excuses. Courts usually expect parties to raise those problems early, support them with evidence, and seek practical relief before the deadline expires. A business that waits until the day before a hearing to provide incomplete compliance may find that the Court focuses on the history of the defaults rather than the late effort to repair them.

The available reasons show that the Court paid close attention not just to whether there had been non-compliance, but to the quality of the parties’ conduct around that non-compliance. The Court noted the lack of a proper response to the notice to produce, the absence of a response to the request for particulars, the failure to annex key communications said to explain the delay, and the absence of evidence showing serious attempts to fix the problem after the deadline had passed.

That is a useful reminder that procedural credibility matters. If a business says it could not comply because it was waiting on internal instructions or documents, it should expect the Court to look for evidence of when those requests were made, what was asked for, what was received, and what follow-up occurred. General statements about complexity or difficulty may carry less weight than a clear paper trail showing active efforts to comply.

This page reflects the Full Court decision in Monks v Pieman Resources Pty Ltd [2025] FCAFC 121 and the orders made on 3 September 2025. The reasons identify the primary judgment as Pieman Resources Pty Ltd v Monks [2025] FCA 88.

The text available for this page ends part-way through the Full Court’s discussion of the proposed grounds of appeal. The orders are clear, and the available reasons provide substantial procedural detail, but a complete reading of the full judgment and the primary judgment is still needed before using the case for close precedent analysis.