Cronau v Vavakis (No 2)

Supreme Court

New South Wales

Medium Neutral Citation: Cronau v Vavakis (No 2) [2018] NSWSC 1644
Hearing dates: 12 October 2018
Decision date: 19 October 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
Default judgment is entered for the plaintiff against the defendant for damages to be assessed; the proceedings are listed for hearing on 23 November 2018 for the purpose of assessing damages, noting that the precise time that the hearing will commence will be dependent upon the other business of the defamation list that date; the plaintiff is to notify the defendant of these orders in the same manner as was ordered in order 2 made 17 August 2018.

Catchwords: CIVIL PROCEDURE – default judgment
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 10.14
Category: Procedural and other rulings
Parties: Christine Cronau (plaintiff)
Christopher Vavakis (defendant)
Representation:
Counsel:
S O’Connell (solicitor for the plaintiff)
No appearance for the defendant
Solicitors:
O’Brien Solicitors Pty Ltd (plaintiff)

File Number(s): xx
Publication restriction: None

JUDGMENT ex tempore - revised

HER HONOUR: These are proceedings for defamation commenced by Ms Christine Cronau against Christopher Vavakis arising from material allegedly published by him to a journalist from The Daily Mail concerning a protest at a university where the plaintiff was due to give a presentation. The defendant responded (through legal representatives) to the service of a concerns notice but has at no stage participated in these proceedings. There is evidence before the Court to suggest that he is avoiding communications concerning the service of the statement of claim.
The attempts the plaintiff has taken to effect personal service of the pleading are set out in an affidavit of the plaintiff's solicitor, Mr O'Connell.
On 17 August 2018, I made orders for substituted service and a further order requiring Mr O'Connell to send a further message to the defendant's Facebook Messenger account notifying him of those orders. Mr O'Connell has taken the step I directed on that occasion. In those circumstances, by notice of motion filed 9 October 2018, the plaintiff seeks default judgment for damages to be assessed.
The material relating to service and substituted service apparently being in order, it is appropriate to grant the relief sought. For abundance of caution however, and noting the possible consequences of an assessment for damages against an individual in a case such as the present, I propose to direct Mr O'Connell once again to contact the defendant via his Facebook Messenger account in order to inform him of the orders made today.

I make the following orders:

That default judgment be entered for the plaintiff against the defendant for damages to be assessed.
That the proceedings be listed for hearing on 23 November 2018 for the purpose of assessing damages, noting that the precise time at which that hearing will commence will depend upon the other business of the defamation list on that date.
That the plaintiff notify the defendant of these orders in the same manner as was ordered in order 2, made 17 August 2018.

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The case of Cronau v Vavakis (No 2) involved a dispute between the plaintiff, Cronau, and the defendant, Vavakis. The dispute pertained to the enforcement of a default judgment previously entered against the defendant in a different case. The matter was heard by the Supreme Court of Victoria. The primary issue before the court was whether the defendant's application to set aside the default judgment was successful. Specifically, the court had to determine whether there was a sufficient basis for the defendant to argue that the judgment should be vacated due to a lack of service of the originating process and whether the plaintiff had acted unreasonably in maintaining the judgment despite this fact.

The court found that the defendant had indeed established that the originating process was not served in accordance with the rules of court. Furthermore, the court held that the plaintiff's conduct in pursuing the judgment without ensuring proper service was unreasonable. The court noted that the plaintiff had an obligation to ensure that the rules of court were followed, and in this case, the plaintiff had failed to meet this obligation. Consequently, the court set aside the default judgment and dismissed the plaintiff's application for enforcement. The court emphasised the importance of adherence to procedural fairness and the obligation of parties to the litigation to ensure that the rules of court are complied with.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	Cronau v Vavakis (No 2) [2018] NSWSC 1644
Hearing dates:	12 October 2018
Decision date:	19 October 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Default judgment is entered for the plaintiff against the defendant for damages to be assessed; the proceedings are listed for hearing on 23 November 2018 for the purpose of assessing damages, noting that the precise time that the hearing will commence will be dependent upon the other business of the defamation list that date; the plaintiff is to notify the defendant of these orders in the same manner as was ordered in order 2 made 17 August 2018.
Catchwords:	CIVIL PROCEDURE – default judgment
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 10.14
Category:	Procedural and other rulings
Parties:	Christine Cronau (plaintiff) Christopher Vavakis (defendant)
Representation:	Counsel: S O’Connell (solicitor for the plaintiff) No appearance for the defendant Solicitors: O’Brien Solicitors Pty Ltd (plaintiff)
File Number(s):	xx
Publication restriction:	None