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Lubura v Nezirevic

Lubura v Nezirevic

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Case Copied 4 September 2013 45 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0082

SINISA LUBURA	Appellant
v
FAJKO NEZIREVIC	Respondent

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JUDGES	WARREN CJ, OSBORN JA and ROBSON AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	31 July 2013
DATE OF JUDGMENT	4 September 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 215
JUDGMENT APPEALED FROM	Nezirevic v Lubura & Anor [2012] VCC 408 (County Court of Victoria, Judge Misso, 23 April 2013)

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PRACTICE AND PROCEDURE – Application to set aside judgment obtained in default of appearance – Respondent (plaintiff in County Court proceeding) sued appellant (defendant in County Court proceeding) for damages from alleged assault and battery – Appellant convicted of affray relating to circumstances giving rise to the alleged assault and battery – Whether trial judge erred in finding guilt of affray denied the appellant a defence on the merits to alleged assault and battery – Appeal allowed – Discretionary conditions imposed on judgment being set aside – County Court Act1958 s 74; Supreme Court (General Civil Procedure) Rules2005 O 64; County Court Civil Procedure Rules 2008 O 64A.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr I W Upjohn	Baker Jones
For the Respondent	Mr R H Stanley	Patrick Robinson & Co

WARREN CJ:

For the reasons stated by Osborn JA and Robson AJA, I would allow the appeal and grant leave to defend, subject to the conditions articulated by Robson AJA.

There are other observations I make as to the test to be applied and the standard to be met by an applicant for leave to defend.

The test for setting aside a default judgment is set out in Kostakanellis v Allen[1] where the Full Court held that a court should assess:
[1][1974] VR 596.

·Whether there is a defence on the merits;
·The reasons for the default;
·Whether the application to set aside the judgement was made promptly after the judgment came to the knowledge of the first defendant; and
·Whether, if the judgment is set aside, a suitable award of costs and the giving of security would be adequate to cover the prejudice to the plaintiff in having the judgment set aside.

This test is not all that different from the test for summary judgment.[2]

[2]The test for summary judgment is set out in s 63 of the Civil Procedure Act 2010 and was considered in Lysaght Buildings Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158. There the Court of Appeal focused on the meaning of ‘no real prospect of success’. The Court held that:

a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success;

b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;

In this case the Court is principally concerned with the first element set…

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: [2013] VSCA 215
Decision Date: 4 September 2013

CaseChat Overview and Summary

The case of Lubura v Nezirevic involves a plaintiff who sought damages for an alleged assault and battery against the defendant. The plaintiff successfully obtained a judgment in the County Court by default, as the defendant failed to appear. The defendant later applied to set aside the default judgment on the grounds that a prior conviction for affray, related to the same incident, prejudiced their ability to defend the merits of the assault and battery claim. The matter was heard in the Supreme Court, where the defendant argued that the trial judge erred in finding that the affray conviction precluded a defence on the merits.

The court was required to determine whether the defendant's prior conviction for affray, which arose from the same incident as the alleged assault and battery, prejudiced their ability to defend the merits of the claim. The defendant contended that the conviction did not preclude a defence on the merits and that the trial judge erred in finding otherwise. The court also needed to consider whether the defendant's application to set aside the default judgment was appropriate and whether the discretionary conditions for setting aside the judgment should be imposed.

The court found that the trial judge erred in concluding that the defendant's conviction for affray precluded a defence on the merits of the assault and battery claim. The court noted that the conviction for affray did not necessarily mean that the defendant could not defend the merits of the claim. The court held that the defendant's application to set aside the default judgment was appropriate, and the discretionary conditions for setting aside the judgment were imposed. The appeal was allowed, and the default judgment was set aside.

The court ordered that the default judgment be set aside, and the matter be listed for a further case management conference. The defendant was required to pay the plaintiff's costs of the application to set aside the default judgment, subject to any orders made at the further case management conference. The defendant was also required to provide security for the plaintiff's costs of the trial, subject to any orders made at the further case management conference.

Orders