Karam v Lennon Mazzeo
[2011] VSC 507
•3 October 2011 (Ex tempore). Reasons revised for publication on 6 October 2011.
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 3123 of 2011
| AKRAM KARAM | Plaintiff |
| v | |
| LENNON MAZZEO | Defendant |
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JUDGE: | CAVANOUGH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 October 2011 | |
DATE OF JUDGMENT: | 3 October 2011 (Ex tempore). Reasons revised for publication on 6 October 2011. | |
CASE MAY BE CITED AS: | Karam v Lennon Mazzeo | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 507 | |
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PRACTICE AND PROCEDURE – Action for alleged professional negligence – Application by self-represented plaintiff for default judgment or summary judgment based on alleged defects in form of defence served – Alleged requirement that defence as served state date of filing – No such requirement – No affidavit to prove any default in service of defence – Defence containing bare denials - Defendant not obliged to plead to particulars of alleged negligence – Summary judgment not appropriate – Appeal from Associate Justice dismissed – Observations as to desirable future procedural steps – Each party to bear own costs – Supreme Court (General Civil Procedure) Rules 2005 rr 6.07(5), 13.12, 14.04, 14.10, 21.02, 21.03, 21.04, 23.01 and 77.06.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr D. Begg, solicitor | Lennon Mazzeo |
HIS HONOUR:
This is an appeal by notice of appeal filed 12 September 2011 from orders made on 7 September 2011 by Associate Justice Zammit. Principally, the Associate Justice ordered[1] that the plaintiff’s summons dated 15 August 2011 be dismissed.
[1]By paragraph 1 of her order.
The plaintiff’s summons of 15 August 2011 contains two main applications, set out in paragraphs 1 and 2.[2] Paragraph 1 is as follows:[3]
[2]The plaintiff is not legally represented in this proceeding. English is not his first language. I have endeavoured to make all due allowances accordingly.
[3]Strictly speaking, paragraph 1 is misconceived. Order 21 does not provide for the giving of “summary judgment” properly so called (as to which see Order 22 and, in part, Order 23). Rather, Order 21 provides for the entry of judgment in default of appearance or defence in certain kinds of cases, including cases where “damages” are sought (see r 21.02 and r 21.03) or the giving of judgment in default of appearance or defence in certain other kinds of cases (eg injunction cases): see r 21.02 and r 21.04. Though the plaintiff’s substantive claim is for “damages” only, he has not sought to enter judgment administratively in the normal way as provided for in r 21.02 and r 21.03. Nor could judgment be given for him under r 21.02 and r 21.04 because his substantive claim (being for damages only) falls outside r 21.04. However, in deference to the plaintiff’s status as an unrepresented litigant, the claim under paragraph 1 of the summons has, in effect, been allowed to proceed before Associate Justice Zammit and before me as though each of us, successively, were entertaining a request by the plaintiff that judgment be entered against the defendant under r 21.02 and r 21.03, save that the defendant has been heard in opposition to the summons.
That there be a summary judgment for the Plaintiff pursuant to Order 21.02 of the Supreme Court (General Civil Procedure) rules 2005 on the grounds that the defence is to be taken has[4] not being served within the limited time in accordance with order 14.04 of the supreme court (general civil procedure) rules 2005[5], when the defendant, Lennon Mazzeo served an illegal notice of defence on the plaintiff on 5 August 2011, which did not provide on which date that the notice of defence had been filed in the supreme court.[6]
[4]Sic. Scil “as”.
[5]Sic (lower case used).
[6]Sic (lower case used).
(a copy of the notice of defence is provided with this summons).
Paragraph 2 reads:
Alternatively, that there be a judgement for the plaintiff against the defendant Lennon Mazzeo, under order 23.01(2) of the supreme court (general civil procedure) rules 2005[7] for a stay or dismissal of the defence on the grounds that the defence does not disclose an answer when:
aThe defence did not answer the point of substance of the allegations in the plaintiff’s statement of claim.
bThe defence is general, ambiguous and not sufficient in which[8] it did not comply with rule 13.12(1) of the supreme court (general civil procedure) rules 2005[9].
cThe defence lacks foundation in facts that no pleading amendment could save it.
[7]Sic (lower case used).
[8]Sic. Scil “that”.
[9]Sic (lower case used).
Paragraph 3 of the summons asserts that an affidavit in support “under order 22.04”[10] of the Rules is attached.
[10]The reference to r 22.04 seems to be a mistake. The intention may have been to refer to r 23.04. The affidavit said to have been “attached” is the affidavit of the plaintiff sworn 22 July 2011 referred to below.
Paragraph 4 seeks: “Any other orders as the Honourable Court deems fit”.
Associate Justice Zammit provided written reasons for her decision, as follows:
1.The plaintiff has filed a summons dated 15 August 2011. The plaintiff seeks default judgment against the defendant pursuant to rule 21.02 of the Rules on the basis that the defendant’s defence was not filed within the time required under the Rules; alternatively, that there be judgment for the plaintiff against the defendant pursuant to rule 23.01(2) on the ground that the defendant does not comply with the Rules and/or does not answer the point of substance of the allegations in the plaintiff’s statement of claim and/or that the defence lacks foundation.
2.Mr Karam relies upon an affidavit sworn 22 July 2011 filed with the court on 15 August 2011.
3.There is no evidence before the court in relation to the matters relevant to Mr Karam’s application pursuant to r 21.02. The affidavit in support dated 22 July 2011 deals only with issues relating to the conduct of his previous solicitors and counsel in proceedings in the County Court in 2009, the substance of his professional negligence claim against the defendant.
4.There is no evidence whatsoever relevant to the default judgment application.
5.In any event, the Court file contains an appearance by the defendant filed with the Court on 4 July 2011 and a Notice of Defence filed 1 August 2011.
6.The plaintiff’s application pursuant to rule 21.02 must fail because of a lack of evidence.
Summary Judgment
7.In relation the plaintiff’s application pursuant to rule 23.01(2) the plaintiff’s statement of claim has five substantive paragraphs. Paragraph 4 of the statement of claim sets out the claim in negligence against the defendant, his former solicitors and has detailed particulars from sub‑paras(a) to (p). Paragraph 5 of the statement of claim alleges loss and damage said to be caused by the defendant’s negligence.
8.The plaintiff’s complaint is that the defence filed amounts to nothing more than a bare denial of the substantive claim at paras 4 and 5 of the statement of claim.
9.In its defence, the defendant admits that it owed the plaintiff a duty of care but denies any negligence or loss.
10.Paragraphs 4 and 5 of the plaintiff’s defence amount to a bare denial. There is no fact or matter pleaded by the defendant and there is some merit to the plaintiff’s claim that he will be taken by surprise at trial, in such circumstances.
11.As is often the case, pleadings prepared by an unrepresented litigant are often incomplete or do not follow the form required under the Rules. Paragraph 4 of the plaintiff’s claim is an assertion of negligence by the defendant.
12.The facts and matters which are said to create the claim are in effect set out in the plaintiff’s particulars to paragraph 4 of the statement of claim.
13.The defendant submits that it has responded to the pleading in paragraph 5 and that it does not have to plead the particulars.[11]
14.The defendant submits that it will need to plead specific defences in due course including, advocate immunity, reliance on counsel and contribution from other parties.
15.In the course of the hearing of the application the defendant informed the Court of a related proceeding by the plaintiff of professional negligence against another firm of solicitors, arising out of the same facts as this proceeding. To that end, that claim is against a firm of solicitors, Aloe & Co, and I handed down reasons in that case last week.
16.The plaintiff also has two Court of Appeal proceedings (Proceeding No. 31 of 2010 and Proceeding No. 32 of 2010) arising from the same facts as this proceeding.
17.The defendant’s principal submission was that it would be premature to amend the defence at this stage until the Court of Appeal decisions are determined. The defendant submits that the Court of Appeal decisions may impact upon when it is said the plaintiff’s loss crystallises. The Court was informed that one of the Court of Appeal proceedings (which is awaiting a decision of the High Court concerning the plaintiff’s special leave application) has an expedited timetable. Mr Karam informed the Court that he has made the Court of Appeal Registry staff aware in the other matter of his serious health issues and the need for the matter to be dealt with expeditiously.
18.The defendant submits, pursuant to s.64 of the Civil Procedure Act 2010 (Vic), that this is a matter that should be allowed to proceed to trial because it is in the interests of justice to do so.
19.It seems to me that the defence as currently pleaded, notably at paragraph 4, is deficient in that it is a bare denial. However, the deficiency in itself does not warrant a complete striking out of the defence. Requiring the defendant to amend its defence at this stage is premature. A preferable course, which will save time and cost, is to allow the two pending Court of Appeal matters to be determined and then for orders to be made in this proceeding.
20.The defendant made an application that this proceeding should be stayed until the Court of Appeal decisions are determined. The difficulty is that the stay application was made without any notice to the plaintiff and in circumstances where the defendant made submissions from the Bar table with no supporting evidence.
21.It may be appropriate that this proceeding be stayed but the court requires further evidence as to the status of the Court of Appeal proceedings including when those proceedings are to be heard.
[11]Sic. Scil “plead to the particulars”.
Her Honour’s orders were expressed as follows:
1. The plaintiff’s summons dated 15 August 2011 is dismissed.
2.A directions hearing is fixed on 28 September 2011 at 9.30 am in Court 4 before Zammit AsJ, at which time further directions will be made in this proceeding.
3.Any application by the defendant to stay this proceeding is to be supported by affidavit material. Any such affidavit material is to be filed and served by 23 September 2011.
4.No order as to costs.
Nothing additional has been put before me by way of relevant evidence pursuant to special leave or otherwise and so I have to consider this appeal on the evidence that was before Associate Justice Zammit.[12] By consent, I have been given some information from the Bar Table about the status of the appeals to the Court of Appeal and the other proceedings to which Associate Justice Zammit referred, but that information is relevant only to the future procedural steps to be taken in the event that the present appeal is dismissed. There is no new affidavit material before me that bears on the applications made by paragraphs 1 and 2 of the plaintiff’s summons.[13]
[12]Supreme Court (General Civil Procedure) Rules 2005 r 77.06(7).
[13]There is a purely formal affidavit of the plaintiff sworn 22 September 2011 in which, in substance, he simply deposes to having received the authenticated order of Zammit AsJ on 21 September 2011.
Rule 21.02(2) provides that:
Judgment shall not be entered or given for the plaintiff unless an affidavit proving the default is filed.
The plaintiff has not established by evidence on affidavit that there was default in the service of the defendant’s defence.[14]
[14]Apart from the above mentioned purely formal affidavit filed by the plaintiff after the commencement of this appeal, the only affidavit filed and served by him in relation to the summons of 15 August 2011 was his affidavit sworn on 22 July 2011 to which Associate Justice Zammit referred. That affidavit did not purport to establish default on the part of the defendant in the delivery of its defence. It could hardly have done so, because it was sworn before the expiry of the time limited for the delivery of the defence. That time did not expire until 3 August 2011, being the date 30 days after the date of the filing of the defendant’s appearance. As Zammit AsJ noted, the affidavit of 22 July 2011 dealt exclusively with the substance of the plaintiff’s professional negligence claim against the defendant. It provided no support for his application pursuant to r 21.02 of the Rules.
Mr Karam puts emphasis on the language of his summons of 15 August 2011 and in particular points out that it was said in his summons that “a copy of the Notice of Defence is provided with this summons”.[15] Nonetheless, the defendant is entitled to succeed on the point that there was no affidavit within r 21.02(2) to prove that there had been default in the service of a defence.[16] Associate Justice Zammit was correct not to grant the relief claimed in paragraph 1 of the summons under r 21.02 of the Supreme Court (General Civil Procedure) Rules 2005. The position remains the same on the appeal.
[15]The summons complains of the service of an “illegal Notice of Defence”. Mr Karam submitted to me that the document was “illegal” because it did not indicate, by means of an official stamp or otherwise, the date on which the “Notice of Defence” had been filed in the Supreme Court. With a view to demonstrating this, Mr Karam handed up a copy of the “Notice of Defence” (as served on him) and of a letter dated 1 August 2011 from the defendant to him under cover of which the “Notice of Defence” was apparently served. However, Mr Karam’s point is misconceived. There is no requirement under the rules or otherwise that a defence (as served) bear any indication (by way of an official stamp or otherwise) as to the date of filing. The plaintiff appears to be confusing the requirements applicable to a writ or to a summons with those applicable to a pleading such as a defence. Read together, rr 14.04 and 14.10 make it clear that the relevant procedure is that the defence be served first and that a copy of the defence be thereafter filed. It follows that, far from there being a requirement that the defence served bear some indication of the date of filing, no such indication could sensibly be included on the document.
[16]The plaintiff’s summons refers to the (“illegal”) Notice of Defence as having been “served” on 5 August 2011. If service was not effected until that date, it may have been out of time. However, no such point appears to be taken in the summons. Rather, as mentioned in the previous footnote, the complaint in the summons seems to be confined to the allegation that the document served was “illegal”. Nor did Mr Karam even assert from the Bar table that the document was served out of time. If it was posted to the plaintiff on 1 August 2011 (being the date suggested by the date of the covering letter and the date of the Notice of Defence itself, as revealed by the copies thereof handed up by Mr Karam himself) then, subject to confirmation of the “ordinary course of post”, the document would probably have been “served” within time: see r 6.07(5). In any event, there is certainly no affidavit evidence to establish that the defence was served out of time.
So far as the claim in paragraph 2 of the summons is concerned, this was not a proper case for the giving of judgment for the plaintiff under r 23.01(2) of the rules on the basis of the alleged inadequacy of the defence as pleaded.
The defence was certainly brief and general and was not in a form which the Court would these days prefer to see. As Associate Justice Zammit herself said, the defence represented a bare denial rather than a pleading which contained appropriate details and which addressed the facts alleged by the plaintiff in a comprehensive way. However, it is to be remembered that the statement of claim itself is not drawn in a discursive way. It has apparently been drawn by the plaintiff personally without legal assistance. It lacks clarity. Paragraph 4 is expressed as follows:
The defendant acted negligently in the conduct of the plaintiff’s proceedings of Common Law damages of industrial asthma and psychiatric injury in the County Court and a cancer disease injury of weekly payments, compensation and medical expenses in the Magistrate’s Court.
There then follows a series of “particulars of negligence”, so headed. They also lack clarity. In any event, it is a well established principle of pleading that a defendant is not required to plead to mere particulars set out in the statement of claim.[17] Therefore, strictly speaking, the defendant is not in default in this respect. It has “specifically” addressed paragraph 4 of the statement of claim by denying the allegations contained in it. Contrary to the plaintiff’s submission, r 13.12(1) requires no more[18].
[17]See Bailey & Arthur, Civil Procedure Victoria, para [I 13.10.40] and cases there referred to, including Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69. Defendants in common law negligence actions rarely, if ever, plead to particulars of negligence, and I am not aware of any such action in which it has been held that the defendant was in default in that regard, much less that summary judgment should be entered against the defendant on that basis.
[18]See Bailey & Arthur, op cit at [I 13.12.50] and cases there cited. The same applies in relation to the defendant’s denial of the allegations contained in paragraph 5 of the statement of claim (which related to loss and damage). Paragraph 5 of the statement of claim was itself expressed in general terms only, and was followed by a series of “particulars”. Further, the defendant filed a Proper Basis Certification under s 42 of the Civil Procedure Act 2010 on 1 August 2011 in relation to the whole of its Notice of Defence. On no view would it be appropriate to give judgment against the defendant under r 23.01 at this stage.
Nevertheless, as Associate Justice Zammit recognised, it would be desirable if the issues between the parties were better defined at an appropriate time. The real question is whether I should intervene today, under cover of the plaintiff’s summons, to establish something in the nature of a timetable for the further conduct of the substantive proceeding.
Mr Begg, for the defendant, urges me not to do so. He mentions the pending matters in the Court of Appeal referred to by Associate Justice Zammit. He points out that one of them relates to complicated costs questions arising out of the original judgment of Justice T Forrest[19] in the common law proceedings in relation to which the plaintiff now sues the defendant for alleged professional negligence. Aspects of those costs questions are said to pertain to the appropriateness or otherwise of the conduct of the defendant as the solicitors for the plaintiff in relation to his original claims. Mr Begg contends that those matters need to be sorted out before the present professional negligence claim can sensibly proceed. In addition, there is the other Court of Appeal matter which relates to the dissatisfaction of the plaintiff with a refusal by a magistrate to strike out his former employer’s defence in a proceeding relating to a claim by the plaintiff for statutory benefits with respect to the same injuries as were the subject of the common law claims. Again, the past conduct of the defendant firm is said to be in issue in that matter.
[19]Karam v Palmone Shoes Pty Ltd [2010] VSC 3; Karam v Palmone Shoes Pty Ltd (No 2) [2010] VSC 82.
It is not easy to be precise about the extent of the overlap between the two Court of Appeal matters, on the one hand, and the matter currently before me, on the other. The parties differ about that.
However, it does seem very likely that there will be considerable overlap between the present proceeding and the second professional negligence proceeding brought by Mr Karam against the other solicitors who were involved in his common law matter at trial, namely Aloe & Co. The reasons of Associate Justice Zammit in the present case show that she had handed down some reasons for decision in that other case about a week earlier. Mr Begg submits that it must surely be the sensible course for the two matters to be dealt with together. He refers also to the additional matters upon which he relied below and to which Associate Justice Zammit also referred, namely the likelihood that the defendant will raise advocate’s immunity and reliance on counsel as defences, together with the prospect that the defendant will seek to join counsel or other parties to this proceeding in order to seek contribution.
Taking those matters into account, it seems to me that the present case is part of a larger canvas, and that it should be managed by an Associate Justice who will have more information about the other relevant matters than I do today.
On the other hand, having regard to Mr Karam’s precarious medical condition, and taking into account recent developments in related proceedings, I am not convinced at this stage that all progress in this present matter must necessarily be deferred pending the outcome of the Court of Appeal matters. I note that on 8 September 2011, one day after the decision of Zammit AsJ, the High Court refused to grant the plaintiff special leave to appeal against what the plaintiff perceived to be the narrow grounds on which the Court of Appeal had granted him leave to appeal from the decision of T Forrest J with respect to costs.[20] That may perhaps help to clarify the extent of the overlap, if any, between the costs appeal in the Court of Appeal and the present case. In the end, these are matters for the discretionary judgment of an Associate Justice at a directions hearing.
[20]See Karam v Palmone Shoes [2011] HCASL 142 (8 September 2011).
In all the circumstances the appropriate course is simply to dismiss this appeal and to indicate that the parties ought to approach Associate Justice Zammit again as soon as they may be advised, with a view to obtaining a substitute date for the directions hearing that was originally scheduled for 28 September 2011.
I will dismiss the appeal accordingly. I do not think I need to make any other substantive or procedural order but I invite the parties to address me in relation to costs.
[Discussion ensued].
Costs
I am inclined not to grant costs against Mr Karam in this matter, for several reasons. Costs were not sought below. That may have encouraged Mr Karam to think that they would not be sought on appeal. Further, as Mr Begg very fairly recognises, there appears to be some doubt in the authorities as to whether a firm of solicitors acting for itself is entitled to recover professional costs as such.[21] In addition, Mr Karam has had, in a sense, a measure of success in that, in contrast to the overall position as it previously appeared to Associate Justice Zammit, I have said that this proceeding should not necessarily be held up entirely pending the Court of Appeal matters. The recent refusal of special leave by the High Court in the costs matter represents a development which seems to make less powerful the suggestion that the further conduct of the present proceeding should await the decision of the Court of Appeal in the costs matter. It may be that at the next directions hearing the Associate Justice will see fit to require the defendant to take some further steps to address the plaintiff’s statement of claim in more detail, although I recognise that the Associate Justice may, on the other hand, be entitled to take the view that the statement of claim itself needs to be amended and improved before the defendant is called upon to respond to it further. I take into account also that Mr Karam is unrepresented and is suffering from serious ill health. I accept that it may have been difficult for him to comprehend fully, and to assess dispassionately, this complex matter. So I consider that these matters, in combination, make it appropriate for me to order that each party bear their own costs of this appeal. I will so order.
[21]See Bailey & Arthur, op. cit, [I 63.02.65].
Conclusion
The orders will be that the appeal from Associate Justice Zammit is dismissed and that each party bear their own costs of the appeal.
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