Levis v Stavropoulos - [2020] NSWDC 296

District Court

New South Wales

Medium Neutral Citation: Levis v Stavropoulos [2020] NSWDC 296
Hearing dates: 11 June 2020
Date of orders: 12 June 2020
Decision date: 12 June 2020
Jurisdiction: Civil
Before: Judge Levy SC
Decision:
See paragraphs [38] to [42] for orders.

Catchwords: PRACTICE & PROCEDURE – dismissal of an application for a stay of proceedings – civil proceedings claiming damages for alleged assault in Greece – decision on whether defendant will be tried on criminal charges in Greece still pending with Greek prosecutor – balancing of respective procedural rights and entitlements
Legislation Cited: Civil Procedure Act 2005 (NSW), s 26, s 31.4(1), s 58(2), s 67
UCPR r 12.11(1)(h), r 31.4(1)
Cases Cited: Damberg v Damberg & Ors (2001) 52 NSWLR 492; [2001] NSWCA 87
Gipsy Fire v Truth Newspapers Pty Ltd (1987) NSWLR 382
Levis v Stavropoulos, unreported, 27 February 2020
Category: Procedural and other rulings
Parties: Beth Levis (Plaintiff)
Nicholas Stavropoulos (Defendant)
Representation:
Counsel:
Mr M Windsor SC with Ms E Yasumoto (Plaintiff)
Mr SE McCarthy (Defendant)
Solicitors:
Carroll & O’Dea Lawyers (Plaintiff)
Vobis Equity Attorneys (Defendant)

File Number(s): 2019/113051
Publication restriction: None

Judgment

Two contested notices of motion

Each party in these proceedings has filed a notice of motion seeking procedural orders in a case brought by the plaintiff, Beth Levis, against the defendant, Nicholas Stavropoulos, claiming damages for an alleged assault and battery, on the Greek Island of Mykonos.
The defendant’s notice of motion, filed on 23 March 2020, seeks an order pursuant to s 67 of the Civil Procedure Act 2005 (NSW), for a stay of the plaintiff’s proceedings, for a period of 12 months, or alternatively, that the proceedings be stayed until asserted parallel and related criminal proceedings involving the defendant, in Greece, have concluded. The plaintiff opposes those orders on grounds of unreasonableness.
The defendant’s notice of motion follows the dismissal, on 27 February 2020, of an earlier notice of motion filed by him in which he failed to persuade another Judge of this Court that a stay should be ordered pursuant to s 67 of the Civil Procedure Act 2005 on the argued ground that, pursuant to UCPR r 12.11(1)(h), it had no jurisdiction in this case, Greece being the asserted appropriate forum. That argument was rejected: Levis v Stavropoulos, unreported, 27 February 2020: (His Honour Judge Dicker SC).
The plaintiff’s notice of motion, filed on 7 May 2020, sought an order that the defendant file his defence within 7 days, or alternatively, the plaintiff have liberty to enter a default judgment, with damages to be assessed. Case management orders were also sought by the plaintiff concerning the service of documentary evidence.
Before the motions could be heard, the defendant filed a defence electronically at 5.59pm on 10 June 2020. The effect of that eleventh hour filing now obviates the need for the plaintiff to continue to seek an order for a defence to be filed within seven days. However, the case management orders sought by 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 Levis v Stavropoulos

Details

AGLC: Levis v Stavropoulos [2020] NSWDC 296
Case: [2020] NSWDC 296
Decision Date: 12 June 2020

CaseChat Overview and Summary

Levis initiated civil proceedings against Stavropoulos in the Federal Court of Australia, seeking damages for an alleged assault that occurred in Greece. Stavropoulos applied to have the proceedings stayed until a decision was made on whether he would be criminally charged in Greece. The court had to determine whether the application for a stay should be dismissed, considering the respective procedural rights and entitlements of both parties.

The court examined the balancing of procedural rights and entitlements of the parties, focusing on the impact of the stay on the administration of justice and the potential prejudice to each party. It considered the likelihood of Stavropoulos being charged in Greece, the time that had elapsed since the alleged incident, and the potential for double jeopardy. The court also took into account the fact that Stavropoulos had not shown any urgency in pursuing the criminal charges in Greece.

The court held that the application for a stay should be dismissed. It found that the civil proceedings should proceed as the likelihood of Stavropoulos being charged in Greece was low, and the balance of procedural rights and entitlements favoured the plaintiff. The court emphasised the importance of the civil proceedings proceeding to determine the merits of the plaintiff's claim. The court further held that the potential prejudice to the plaintiff outweighed any potential prejudice to the defendant if the stay was not granted.

The court ordered that the application for a stay be dismissed and that the civil proceedings continue. The court also ordered that the plaintiff's claim be assessed on its merits, and that the defendant file and serve his defence within 28 days of the dismissal of the stay application. The court further ordered that the defendant pay the plaintiff's costs of the application for a stay.

Orders

Orders of the court

See paragraphs [38] to [42] for orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Levis v Stavropoulos [2020] NSWDC 296
Hearing dates:	11 June 2020
Date of orders:	12 June 2020
Decision date:	12 June 2020
Jurisdiction:	Civil
Before:	Judge Levy SC
Decision:	See paragraphs [38] to [42] for orders.
Catchwords:	PRACTICE & PROCEDURE – dismissal of an application for a stay of proceedings – civil proceedings claiming damages for alleged assault in Greece – decision on whether defendant will be tried on criminal charges in Greece still pending with Greek prosecutor – balancing of respective procedural rights and entitlements
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 26, s 31.4(1), s 58(2), s 67 UCPR r 12.11(1)(h), r 31.4(1)
Cases Cited:	Damberg v Damberg & Ors (2001) 52 NSWLR 492; [2001] NSWCA 87 Gipsy Fire v Truth Newspapers Pty Ltd (1987) NSWLR 382 Levis v Stavropoulos, unreported, 27 February 2020
Category:	Procedural and other rulings
Parties:	Beth Levis (Plaintiff) Nicholas Stavropoulos (Defendant)
Representation:	Counsel: Mr M Windsor SC with Ms E Yasumoto (Plaintiff) Mr SE McCarthy (Defendant) Solicitors: Carroll & O’Dea Lawyers (Plaintiff) Vobis Equity Attorneys (Defendant)
File Number(s):	2019/113051
Publication restriction:	None