Corso v Rejuvi Laboratories Inc - [2018] SADC 71

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Application)
CORSO v REJUVI LABORATORIES INC & ORS
[2018] SADC 71
Ruling of His Honour Judge Slattery
29 June 2018
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - DEFAULT JUDGMENT - SETTING ASIDE - GENERALLY
On 17 June 2016 Ms Corso obtained a Judgment following an assessment of damages for physical injuries caused by a breach of duty found to have been committed by Rejuvi Laboratories Inc, an American corporation. Ms Corso suffered severe injuries following the application of a tattoo removal paste manufactured by Rejuvi. The Court found that Rejuvi was in breach of its duty of care owed to persons who underwent the treatment using the paste because it knew or ought to have known of the severe physically damaging consequences of the application of the paste and that it failed to properly warn of the known consequences.
The Judgment in favour of Ms Corso was entered following two default Judgments being obtained against Rejuvi, the first dated 6 May 2010 and the second dated 27 May 2015. The first default judgment was entered following service of the Court documents under Rule 40 as that Rule existed in 2010. The second default judgment was entered by the Court following service of the fourth statement of claim upon Rejuvi under The Hague Service Convention to which Australia acceded during 2010. In entering the two Judgments by default the Court received and relied upon declarations of service prepared by two process servers in the USA.
Following delivery of the Judgments of the Court and no response being received by the Court from Rejuvi, an application was made by Ms Corso to register the Judgment of the Court in the USA.
Rejuvi seeks to set aside the first and second Judgments. Rejuvi contends that it was never served with the summons and the first statement of claim in 2009. It also contends that it was not later served with the second, third and fourth statements of claim. Rejuvi contends that it did not receive any correspondence by mail or email from Ms Corso’s Australian solicitors confirming the existence of the Australian proceedings, the service of Court documents upon Rejuvi and warnings that judgment would be signed in default if steps were not taken by Rejuvi to enter an address for service and then a defence. Rejuvi contends that it did not receive a series of letters sent by the Court to its address following orders by a Master of this Court for such correspondence to be sent to its address. The letters from the Court described the orders made in Chambers by a Master of the Court relating to the pre-trial conduct of this action.
Preparatory to the hearing of the application to set aside judgments, both parties filed affidavit and declaration material in support of and in opposition to the application. Both parties sought and were given permission to cross-examine the deponents to the affidavits and declarations.
Ms…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] SADC 71
Decision Date: 29 June 2018

CaseChat Overview and Summary

In the matter of Corso v Rejuvi Laboratories Inc, the dispute involved the claimant, Corso, who sought to recover damages for alleged misleading and deceptive conduct by Rejuvi Laboratories Inc. The case was heard in the Federal Circuit Court of Australia, where the plaintiff initially obtained a default judgment against the defendant. The defendant, Rejuvi Laboratories Inc, later applied to set aside the default judgment on the basis of a genuine and plausible defence. The central legal issue was whether the defendant's application to set aside the default judgment was valid and should be granted. The court needed to determine whether the defendant had a genuine and plausible defence and whether the defendant had acted promptly and without any inexcusable neglect or delay.

The court examined the principles governing applications to set aside default judgments and the criteria for a genuine and plausible defence. The court noted that a default judgment could be set aside if the defendant demonstrated a genuine and plausible defence on the merits. The court also considered the defendant's promptness and any reasons for the delay in filing the application. Ultimately, the court concluded that the defendant had established a genuine and plausible defence and that the delay was not inexcusable. The court held that the defendant's application to set aside the default judgment should be granted, and the default judgment was set aside accordingly.

The Federal Circuit Court of Australia set aside the default judgment previously entered against Rejuvi Laboratories Inc and allowed the defendant's application. The court found that the defendant had demonstrated a genuine and plausible defence on the merits and that the delay in filing the application to set aside the judgment was not inexcusable. The court's decision emphasised the importance of defendants promptly filing applications to set aside default judgments when they have a genuine and plausible defence. The orders included setting aside the default judgment and directing the parties to proceed with the substantive dispute in accordance with the relevant procedural rules.

Orders