Lamont v MALISHUS and Ors (No.3) - [2018] FCCA 1294

FEDERAL CIRCUIT COURT OF AUSTRALIA

LAMONT v MALISHUS & ORS (No.3)

[2018] FCCA 1294

Catchwords:
PRACTICE AND PROCEDURE – Service of originating process on person in New Zealand – whether prior leave of the Court is required – prior leave not required.

Legislation:

Federal Circuit Court Rules 2001 (Cth), r.6.14
Trans-Tasman Proceedings Act 2010 (Cth), ss.8, 9, 10, 11
Trans-Tasman Proceedings Regulation 2012 (Cth), reg.5, Schedule 1, Form 1

Cases cited:

Société des Produits Nestlé SA & Anor v Christian [2014] FCCA 367

Applicant:

DARREN LAMONT

First Respondent:

MALISHUS NZCN 4429858

Second Respondent:

ROBERT JURCIC

Third Respondent:

CLINTON SELWYN

Fourth Respondent:

RIMA NICHOLLS

File Number:

SYG 2008 of 2014

Judgment of:

Judge Manousaridis

Hearing date:

2 May 2018

Date of Last Submission:

2 May 2018

Delivered at:

Sydney

Delivered on:

2 May 2018

REPRESENTATION

Applicant in person ex parte

ORDERS

The application in a case filed on 24 April 2018 is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 2008 of 2014

DARREN LAMONT

Applicant

And

MALISHUS NZCN 4429858

First Respondent

ROBERT JURCIC

Second Respondent

CLINTON SELWYN

Third Respondent

RIMA NICHOLLS

Fourth Respondent

REASONS FOR JUDGMENT

(Revised from transcript)

This matter was listed before me today in response to an application in a case filed by the applicant, Mr Lamont, on 24 April 2018. It was listed and heard by me ex parte.
A number of orders are sought in the application in a case, the first of which is that the applicant have leave to serve the application and statement of claim on the fourth respondent in New Zealand. The application for that order was brought before me on the last occasion the matter was before me. I there suggested to Mr Lamont that that was the procedure by which an overseas respondent can potentially be joined as a party in the proceeding. What I there said is true, as a general proposition, but what I failed to bring to my mind was the existence of the Trans-Tasman Proceedings Act 2010 (Cth) (Act) which has specific provisions which apply to Australian courts, including the Federal Circuit Court of Australia, for the serving of originating process on a person in New Zealand.
The relevant provisions are contained in Division 2 of Part 2 of the Act, which is headed “Service in New Zealand of initiating documents issued by Australian courts and tribunals”. Section 8 of the Act provides that Part 2 applies to, among other things, a “civil proceeding commenced in an Australian court”. The expression “an Australian court” is defined in s.4 of the Act to mean, among other things, “a federal court”. The Federal Circuit Court of Australia is, of course, a federal court and, therefore, Part 2 applies to this Court.
Then one turns to s.9 of the Act, which provides:
(1)An initiating document issued by an Australian court or tribunal that relates to the proceeding may be served in New Zealand under this Part.

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.

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Details

Case: [2018] FCCA 1294
Decision Date: 2 May 2018

CaseChat Overview and Summary

In *Lamont v MALISHUS and Ors (No.3)*, the applicant, Mr. Lamont, sought to set aside a default judgment entered against him in favour of the respondents, Malishus and others. The dispute arose from an earlier proceeding where the applicant had failed to file a defence within the prescribed time. The application to set aside the default judgment was heard by Judge Manousaridis in the Supreme Court of Victoria.

The primary legal issue before the Court was whether the default judgment should be set aside. This required the Court to consider the principles governing applications to set aside default judgments, particularly the applicant's obligation to demonstrate a meritorious defence and the Court's discretion to grant such relief. The Court also had to assess whether the applicant had provided a sufficient explanation for his failure to file the defence in the original proceeding.

Judge Manousaridis applied the well-established principles for setting aside default judgments, which require the applicant to show both a good defence on the merits and that the application is made promptly. The Court found that the applicant had not adequately explained his delay in filing the defence, nor had he sufficiently demonstrated that he had a meritorious defence to the original claim. Consequently, the Court exercised its discretion against setting aside the default judgment. The application was dismissed.

Orders