Karam v Lennon Mazzeo (a firm)
[2012] VSCA 98
•15 May 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2011 0163 | |
| AKRAM KARAM | Appellant |
| v | |
| LENNON MAZZEO (a firm) | Respondent |
---
| JUDGES | NETTLE and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 15 May 2012 |
| DATE OF JUDGMENT | 15 May 2012 |
| MEDIUM NEUTRAL CITATION | [2012] VSCA 98 |
| JUDGMENT APPEALED FROM | [2011] VSC 507 (Cavanough J) |
---
PRACTICE AND PROCEDURE – Appeal – Leave to appeal – Interlocutory order – Order dismissing application for judgment in default of pleading or in consequence of defective pleading – No application for leave to appeal – Appeal dismissed as incompetent – Little v State of Victoria [1998] 4 VR 596, applied.
---
| Appearances: | Counsel | Solicitors |
| For the Appellant | No Appearance | |
| For the Respondent | Mr D Begg (solicitor) | Lennon Mazzeo |
NETTLE JA
OSBORN JA:
In this proceeding, as in the related Proceeding SAPCI 2011 0112 (‘the Palmone Shoes Proceeding’), there are several matters before the court today. First, there is the appellant’s Notice of Appeal dated 17 October 2011 against the orders of Cavanough J of 3 October 2011. The effect of Cavanough J’s orders was to dismiss an appeal from the orders of Associate Justice Zammit of 7 September 2011. The effect of her Honour’s orders was to dismiss the appellant’s application of 15 August 2011 for judgment in default of defence or alternatively for summary judgment on the ground that the respondent’s defence contained nothing but bare denials of the applicant’s substantive claim. The Notice of Appeal has been listed for mention today in order to afford the appellant an opportunity to seek leave to appeal if he be so advised. The appellant was informed of the listing by letter from the Registrar dated 23 April 2012.
Secondly, there is the appellant’s summons dated 3 May 2012, but filed on 4 May 2012, by which the appellant seeks to have the listing set aside.
Thirdly, there is the appellant’s summons dated 10 May 2012 by which he seeks to have directions made in lieu of the listing of the appeal for mention today.
Fourthly, there is an application by the appellant by summons dated 22 February 2012 for summary judgment in the appeal.
The considerations which apply to the summons of 4 May 2012 and 10 May 2012 are mutatis mutandis identical to those which apply to the summonses of the same date in the Palmone Shoes Proceeding. Accordingly, for the reasons which we have given this morning in that proceeding, we consider that the summonses of 4 May 2012 and 10 May 2012 should be dismissed.
As to the Notice of Appeal, it is apparent that the orders the subject of the appeal are interlocutory orders, in that they do not finally dispose of rights, and consequently that, unless leave to appeal is granted, the appeal should be dismissed as incompetent.[1]
[1]Little v State of Victoria [1998] 4 VR 596.
We turn to the question of leave. The law which applies to applications for leave to appeal against interlocutory orders in matter of practice and procedure is clear. An appellate court is to exercise particular caution in reviewing decisions pertaining to practice and procedure.[2] It is necessary for an applicant to demonstrate error of principle and a real risk of injustice; albeit it is sometimes said that those two requirements are not necessarily cumulative.
[2]In the Will of Gilbert, (dec’d) (1946) 46 SR (NSW) 318, 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Incorporated (1981) 148 CLR 170, 177; Australian Dairy Corporation v Murray Goulburn Co-Operative [1990] VR 355, 379 (McMargvie J); Bailey v Farrow Mortgage Services Pty Ltd, (Unreported, 23 August 1994, VSCAD, Ormiston and Coldrey JJ).
In this case, there is nothing which suggests error of principle or risk of injustice. The reasons of Associate Justice Zammit are set out in the reasons of Cavanough J. They were as follows:
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.
Mr Karam relies upon an affidavit sworn 22 July 2011 filed with the court on 15 August 2011.
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.
There is no evidence whatsoever relevant to the default judgment application.
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.
The plaintiff’s application pursuant to rule 21.02 must fail because of a lack of evidence.
Summary Judgment
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 subparas(a) to (p). Paragraph 5 of the statement of claim alleges loss and damage said to be caused by the defendant’s negligence.
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.
In its defence, the defendant admits that it owed the plaintiff a duty of care but denies any negligence or loss.
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.
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.
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.
The defendant submits that it has responded to the pleading in paragraph 5 and that it does not have to plead the particulars.
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.
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.
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.
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.
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.
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.
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.
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.[3]
[3]Reasons, [5].
As Cavanough J said, the appellant did not establish by evidence on affidavit before the Associate Justice, or pursuant to leave to adduce additional evidence before Cavanough J, that there was default in the service of the defendant’s defence. Hence, the Associate Justice was right to dismiss the claim for judgment in default of defence and his Honour was right to dismiss the appeal from that part of the Associate Justice’s orders.
Moving then to the appellant’s appeal from the Associate Justice’s dismissal of the applicant’s claim for summary judgment, Cavanough J said that:
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.[4] 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.[5], [6]
[4]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] HCA 24; (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.
[5]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.
[6]Reasons, [12].
With respect, we agree. As Cavanough J went on to observe, it is desirable that the respondent’s defence be amended before the matter proceeds, to make clear exactly what matters are in issue. Similarly, Associate Justice Zammit stated that, but for the other matters pending which she mentioned, she would have directed an amendment. Her Honour chose to defer giving that direction until the other matters which she mentioned had been resolved or clarified. It is not suggested, still less is there a ground of appeal, that her Honour was in error in adopting that course.
As Cavanough J remarked, this proceeding is part of what Associate Justice Zammit termed a ‘larger canvas’ and, for that reason, his Honour considered that its management ought be left under the control of the Associate Justice. His Honour explained that:
… 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.[7] 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.
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.[8]
[7]See Karam v Palmone Shoes [2011] HCASL 142 (8 September 2011).
[8]Reasons, [18]–[20].
Again, with respect, we agree. This is a matter which is properly under the control of the Associate Justice and there was and is no need for further or other directions by Cavanough J or this court. Leave to appeal should be refused.
Finally, there is the appellant’s application by summons dated 22 February 2012 for summary judgment in the appeal. For the reasons we have given, that application must be dismissed.
The orders of the court are as follows:
(1) The appellant’s summons of 4 May 2012 is dismissed.
(2) The appellant’s summons of 10 May 2012 is dismissed.
(3) The appellant shall pay the respondent’s costs of the summonses of 4 May 2012 and 10 May 2012.
(4) The appellant’s application by summons dated 22 February 2012 for summary judgment in the appeal is dismissed.
(5) The appellant shall pay the respondent’s costs of the summons of 22 February 2012.
(6) The appeal by Notice of Appeal dated 17 October 2011 against the orders of Cavanough J of 3 October 2011 is dismissed as incompetent.
(7) The appellant shall pay the respondent’s costs of the appeal.
- - -
4
1
0