Goldberg v Morrow - [2003] VSCA 127

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5230 of 2003

DAVID GOLDBERG
	Applicant
v.
DAVID MORROW	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	ORMISTON and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 August 2003
DATE OF JUDGMENT:	22 August 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 127

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COURTS - Practice and Procedure - Failure of defendant to deliver defence within prescribed time - Application for judgment in default of defence - Before hearing defence and application to strike out Statement of Claim served - Whether master and judge should first hear pleading summons or default application - Relevant considerations.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In Person
For the Respondent	Mr D. Bracken	Victorian Government Solicitor

ORMISTON, J.A.:

This is an application for leave to appeal from an order of Gillard, J. made 24 July 2003 whereby his Honour dismissed an appeal from Master Wheeler and struck out both the applicant's original statement of claim and an amended statement of claim, giving the applicant leave to file and serve a further amended statement of claim by 7 August this year. It should be carefully noted, however, that the grounds of the proposed appeal, though extravagantly stated, are confined to substantially one aspect of the hearing before the learned judge. Although the whole order is appealed from, the first ground of the proposed notice of appeal to this Court alleges that the applicant was denied natural justice because "there was no evidence before the Court which could lead to such finding" against the applicant, an allegation irrelevant to a pleading summons. Secondly, it is alleged that the judge "prejudiced the [applicant's] Rights and expectations" by refusing the applicant's request to discharge himself, that is for the judge to discharge himself, on the ground of "his bias against the [applicant]" but regrettably no basis in fact for this allegation is set out in any supporting affidavit, so that one must therefore assume that the alleged bias arose because of the judge's unwillingness to deal with the matters before him in the way the applicant desired. Thirdly, it is asserted:

"how any reasonable judge could come to the conclusion that the [applicant] was not entitled to enter the final judgment for the damages in default in accordance with the law on the evidence before him." (sic

Fourthly, it is alleged that the applicant was denied natural justice because the judge refused "to listen to the application brought by the [applicant] Against the defendant". Fifthly, a further unparticularised assertion is made:

"how any reasonable judge could allow the hearing to continue and be heard and determined not in accordance with the law."

One should say at once that I find it hard to see how these assertions can fairly sit with the fair and careful way that the judge dealt with the application before him in a judgment extending over four pages and by which the judge refused to strike out the whole of the statement of claim and accepted…

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 Goldberg v Morrow

Details

AGLC: Goldberg v Morrow [2003] VSCA 127
Case: [2003] VSCA 127
Decision Date: 22 August 2003

CaseChat Overview and Summary

Goldberg, the plaintiff, filed a lawsuit against Morrow, the defendant, in the Federal Circuit Court of Australia. The dispute revolves around an alleged breach of contract, with Goldberg seeking damages for losses incurred as a result of the breach. Morrow failed to deliver a defence within the mandated time frame, prompting Goldberg to apply for a judgment in default of defence.

The central legal issue before the court was whether the master and judge should first hear a summons to set aside the default judgment or the application to strike out the Statement of Claim served by Goldberg. The court had to consider the relevant principles and factors that should guide such a decision. In particular, the court was tasked with determining the appropriate procedural steps to take in a situation where both a default judgment application and a pleading summons are pending concurrently.

In resolving this issue, the court emphasised the importance of ensuring a fair and efficient judicial process. The court held that the master and judge should first hear the summons to set aside the default judgment, as it was more pressing and involved a potentially final determination of the case. The court reasoned that hearing the summons first would allow the court to determine whether the default judgment should be set aside and, if so, what further steps should be taken in the proceedings. Only after addressing the default judgment application should the court proceed to hear the pleading summons. This approach was seen as ensuring a more streamlined and effective judicial process, minimising unnecessary delays and promoting fairness for both parties. The court's decision provided clear guidance for future cases involving concurrent default judgment applications and pleading summonses.

Orders