DOSSIS v Andreadis - [2012] SADC 104

District Court of South Australia
(Civil)
DOSSIS v ANDREADIS
[2012] SADC 104
Reasons for Decision of His Honour Judge Slattery (ex tempore)
17 August 2012
PROCEDURE
Defendant seeks leave to substitute amended defence and counterclaim for original defence. Form and content of pleadings. Disclosure of a valid defence or cause of action. Failure to comply with the District Court Civil Rules 2006. No special circumstances. Application refused.
District Court Rules 2006 rr 91(1), 99, 100, referred to.
District Court Rules 2006 rr 54, 98 - 105, 120, considered.

DOSSIS v ANDREADIS
[2012] SADC 104

Before the court is an interlocutory application filed on behalf of Dimos Andreadis, being FDN50. It seeks the following orders:
1. Leave to file and serve a Defence and Cross Action Counterclaim.
The document is supported by an affidavit of the same date of Mr Andreadis. It is FDN49. It essentially deposes to the fact that Mr Andreadis did not understand the process of the formulation and preparation of the initial defence which has found its way to the second trial book, commencing at p 52. That document is dated 9 February 2012 and was settled by Mr Peter Quinn, counsel, and filed by Mr Andreadis’s solicitors, Adelaide Legal. In essence, Mr Andreadis alleges that he was not of sound mind when giving instructions and when affirming affidavits and instructions.
The document that Mr Andreadis seeks to file is document FDN51 dated 5 June 2012. It is a document entitled ‘trial affidavit cross-action counterclaim’. It consists of an affidavit of nine pages and numerous exhibits.
The genesis of the filing FDN51, was that this action was called on for hearing for trial on 19 July 2011 before his Honour Judge Beazley in this court. Mr Andreadis did not appear at the hearing. The plaintiff was represented by Mr Roger Sallis of counsel. Mr Sallis has appeared before the court today on behalf of the plaintiff. On 5 August 2011, the trial was adjourned part-heard. Judge Beazley made a default judgment on the defamation claim, adjourned the matter for assessment of damages and gave leave to the plaintiff to file affidavit material, together with minutes of order.
Following the default judgment and the adjournment of the trial, an application was taken by Mr Andreadis to set aside the default judgment and to file a further defence.
On 9 February 2012 Master Blumberg made orders by consent setting aside the default judgment entered by Judge Beazley, and the defendant was given permission to file and serve the defence as exhibited to the affidavit of Ms Thompson, FDN43, on or before 16 February 2012. There were then ancillary orders made on that day for disclosure, and the matter was adjourned to a settlement conference.
The defendant did not comply with those orders of Master Blumberg. On 15 June 2012 Master Blumberg was informed that the defendant was prepared to attend the trial currently listed for 3 September 2012 and that he was prepared to proceed with the…

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.

Continue reading DOSSIS v Andreadis

Details

AGLC: DOSSIS v Andreadis [2012] SADC 104
Case: [2012] SADC 104
Decision Date: 17 August 2012

CaseChat Overview and Summary

In the District Court of South Australia, the case of Dossis v Andreadis involved a dispute between the plaintiff, Ms Dossis, and the defendant, Mr Andreadis. The plaintiff brought a defamation action against Mr Andreadis, alleging that he had defamed her through the publication of certain material. Mr Andreadis sought leave to substitute his amended defence and counterclaim for the original defence, arguing that he did not understand the process of formulating and preparing the initial defence. The court was required to decide whether the defendant's proposed amended defence and counterclaim complied with the rules of pleading and whether it was in the interests of justice to allow the substitution.

The court considered the defendant's proposed amended defence and counterclaim, which was a lengthy affidavit that recounted events involving the plaintiff, the defendant, and their children. The court found that the proposed document did not constitute a defence or counterclaim under the terms of the District Court Civil Rules 2006. It did not comply with the rules of pleading and did not answer the plaintiff's claim. The document was filed late and no special circumstances were disclosed. The court concluded that the interests of justice would not be served by allowing the defendant to file the proposed amended defence and counterclaim. The document would constitute a vexation for the court and would be unfair to the plaintiff as it did not clarify the case she must face at trial. The court refused the defendant's application to substitute the amended defence and counterclaim for the original defence.

The court ordered that the plaintiff's costs of the application be certified as fit for counsel.

Orders