Nezirevic v Lubura
[2012] VCC 408
•23 April 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted |
AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION LIST
GENERAL DIVISION
Case No. CI-10-02907
| FAJKO NEZIREVIC | Plaintiff |
| v | |
| SINISA LUBURA -and- NEBOJSA MALENIC | Defendant |
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JUDGE: | His Honour Judge Misso | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 April 2012 | |
DATE OF RULING: | 23 April 2012 | |
CASE MAY BE CITED AS: | Nezirevic v Lubura & Anor | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 408 | |
REASONS FOR RULING
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SUBJECT: PRACTICE AND PROCEDURE
CATCHWORDS: battery and assault - plaintiff seriously injured - first defendant served with a writ claiming damages - failure of the first defendant to file an appearance - subsequent orders and documents served upon the first defendant informing him that the plaintiff damages would be assessed - assessment of damages - judgement regularly entered - attempt at execution by the Sheriff - application by the first defendant to set aside the judgement - first defendant pleaded guilty to affray – facts accepted in the plea the same facts relied upon by the plaintiff - section 92(2) of the Evidence Act 2008 permits the admission of evidence that the first defendant has been convicted of affray - evidence discloses that the first defendant was a joint tortfeasor - no defence disclosed
LEGISLATION: County Court Civil Procedure Rules 2008, rule 21.07 and Evidence Act 2008, s.92(2)
CASES CITED: Kostakanellis v Allen [1974] VR 596
RULING: the first defendant’s summons is dismissed
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr R Stanley | Patrick Robinson & Co |
| For the Defendant | Mr J Ostermeyer | Baker Jones, Lawyers |
HIS HONOUR:
Introduction
1 By a summons filed 2 March 2012 the first defendant has applied to have an interlocutory judgement entered in favour of the plaintiff, and orders made after an assessment of damages, set aside.
2 Mr Stanley of counsel appeared for the plaintiff/respondent and Mr Ostermeyer, solicitor appeared for the first defendant/applicant.
3 On 21 October 2011 Judge Kings undertook an assessment of the plaintiff's damages. The damages were assessed at $262,000.[1] Interest was fixed at $33,916.44.[2] An order for costs was also made in favour of the plaintiff.
[1]The order was made on 30 September 2011
[2]The order made 30 September 2011 reserve the question of the calculation of interest. The order for interest was made by a separate order on 21 October 2011, at that time the will of the cost was made
The Evidence
4 Mr Ostermeyer tendered an affidavit of the first defendant together with eight exhibits.[3] Mr Stanley tendered an affidavit of service of Fiona Margaret Morgan sworn to February 2011.[4]
[3]Exhibit 1
[4]Exhibit A
5 Additionally, Mr Stanley referred me to the reasons for sentence of Judge Kennedy dated 30 November 2011 which followed the hearing of a plea made by the first defendant in relation to his plea of guilty to one count of common assault and one count of affray. The charges related to events which occurred on 2 July 2007 which resulted in the plaintiff being assaulted. Mr Ostermeyer did not object to me receiving the reasons for sentence.
The Plaintiff's Cause of Action
6 The following is a summary of the relevant steps taken by the plaintiff and the first defendant leading up to the filing of the summons:
· The plaintiff filed a writ on 7 July 2010 with a general endorsement that the defendants had assaulted him. There was no issue that the first defendant was served with the writ.
· The first defendant did not file an appearance or a defence.
· Interlocutory judgement was entered against the first defendant on 12 November 2010.
· On 20 January 2011 Judge Davis ordered that the trial assessment of damages be listed for 17 August 2011, and that the plaintiff serve a copy of the order on the first defendant by 11 February 2011.
· The affidavit of service sworn by Fiona Margaret Morgan on 2 February 2011 proves that the first defendant was served with Judge Davis's order on 1 February 2011.[5]
[5]Exhibit A
· The plaintiff prepared a statement of claim[6] and swore an affidavit on 8 August 2011.[7] The statement of claim pleaded that the defendant's battled and assaulted the plaintiff on 7 July 2007. The affidavit deposed to the occurrence of the assault; the injuries suffered by the plaintiff; and the consequences to him of the injuries.
[6]Exhibit 1, exhibit "SL-6"
[7]Exhibit 1, exhibit "SL-6"
· The statement of claim and the plaintiff's affidavit were served on the first defendant. The solicitor for the plaintiff prepared a letter dated 9 August 2011 referring to both the statement of claim and the affidavit. The letter refers to both documents being served by a process server.[8]
[8]Exhibit 1, exhibit "SL-6"
· The assessment of the plaintiff’s damages was undertaken on 21 October 2011. It is not clear from the file why the trial assessment of damages was listed for 17 August 2011, but undertaken on 21 October 2011.
· The plaintiff swore two affidavits on 15 December 2011- the first is relevant to the trial assessment of damages, and the second is relevant to interest on the damages. The affidavits were provided to the Sheriff’s Office in support of a warrant of seizure and sale.[9]
· The plaintiff filed the summons on 2 March 2012. He swore an affidavit in support of the summons on 1 March 2012. The summons came on for hearing before me on 13 April 2012.
[9]Exhibit 1, exhibit "SL-7"
The Relevant Legal Principles
7 Rule 21.07 of the County Court Civil Procedure Rules 2008 provides a discretion in the Court to set aside a judgement entered in accordance with Order 21.
8 Mr Ostermeyer did not point to any irregularity in the manner in which the interlocutory judgement was entered in favour of the plaintiff nor any irregularity or unfairness in any of the subsequent steps taken by the plaintiff resulting in the trial assessment of damages.
9 The considerations which I must evaluate in an application to set aside a judgement which has been regularly entered can be summarised as follows:
· Whether the first defendant has a defence on the merits;
· The reasons for the default on the part of the first defendant in failing to take any step to defend the plaintiff's proceeding resulting in the entry of judgement;
· Whether the application to set aside the judgement was made promptly after the judgement came to the knowledge of the first defendant;
· Whether, if the judgement 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 judgement set aside.[10]
[10]Kostakanellis v Allen [1974] VR 596
The Facts
10 One reason advanced by the first defendant for his default in failing to take any step to defend the plaintiff's proceeding is his alleged misunderstanding that the documents which were served on him relevant to the plaintiff's proceeding were in connection with his prosecution for the alleged commission of a number of offences on 8 July 2007.
11 The Director of Public Prosecutions presented the plaintiff before the County Court on four counts - assault; intentionally cause serious injury; recklessly cause serious injury, and affray.
12 The first defendant exhibited the presentment;[11] a letter from the Office of Public Prosecutions dated 17 November 2010 to Mr Magazis, solicitor ( the solicitor he engaged to represent him in the County Court criminal proceeding);[12] a copy of the Crown opening;[13] a second presentment prepared when the first defendant pleaded guilty to common assault and affray together with a crown plea opening,[14] and a record of orders made in the criminal jurisdiction in the County Court recording the outcome of the plea hearing before Judge Kennedy.[15]
[11]Exhibit 1, exhibit "SL-1"
[12]Exhibit 1, exhibit "SL-2"
[13]Exhibit 1, exhibit "SL-2"
[14]Exhibit 1, exhibit "SL-3"
[15]Exhibit 1, exhibit "SL-4"
13 I have made a careful comparison between the criminal proceeding documents and the civil proceeding documents for the purpose of assessing the first defendant’s allegation that he misunderstood that the documents were in connection with separate and distinct proceedings. The writ is quite obviously markedly different and distinct from a presentment. A simple comparison makes that so obviously clear. It is difficult to understand how the first defendant misunderstood what it was. The order made by judge Davis does not refer to a criminal proceeding. It is difficult to understand how the first defendant misunderstood the order and the listing of the trial assessment of damages. Subsequently, the first defendant was served with a copy of judge Davis's order, a statement of claim and an affidavit of the plaintiff which makes it abundantly clear that the plaintiff was alleging that the first defendant had battled and assaulted him resulting in the plaintiff suffering injury.
14 I do not accept the first defendant’s explanation. Furthermore, it must be considered in the light of the fact that the first defendant had engaged a firm solicitors to act for him in a criminal proceeding. He could have taken the civil proceeding documents to those solicitors, but he chose not to. In the circumstances I think the only conclusion that is reasonably open is that the first defendant deliberately ignored the documents he was served with until the Sheriff paid him a visit armed with a warrant of seizure and sale.
15 The first defendant also alleges that he was not the person who actually assaulted the plaintiff. He says that is his defence, however, that ignores his plea of guilty to affray and the findings of the sentencing judge, Judge Kennedy. There were two stages to the conduct of the first defendant identified by her Honour. During the second stage the first defendant was a member of a group of men who confronted the plaintiff in a car park outside a bar. The first defendant admitted being armed with a tyre lever. He was a member of a group who were armed with glasses and bottles who surrounded the plaintiff. The plaintiff was assaulted by a least two members of that group.
16 The first defendant has admitted his involvement in the assault on the plaintiff in his affidavit. The only difference he has raised is that the plaintiff conceded during the trial that the first defendant was not the person who actually struck him.[16] However, he then said that he was advised to plead to the counts of common assault and affray on the basis that he was not involved in an assault on the plaintiff. On my reading of the sentencing remarks that is quite plainly wrong. Judge Kennedy observed that in relation to the affray that the evidence did not establish that the first defendant was the perpetrator of the assault on the plaintiff, but it is clear from the whole of the sentencing remarks that the affray encompassed a number of events including the assault upon the plaintiff.
[16]Exhibit 1, paragraph 6
A Defence
17 An affray occurs when there is a fight or violence which frightens others. It is based upon violent conduct which is capable of putting other persons in fear. In order to satisfy the elements of affray the prosecution must establish:
· That there was a fight or an unlawful use of violence or force;
· The accused was involved in the fight or use of violence or force, for example, brandishing an offensive weapon;
· The fighting or use of violence or force was such that a bystander of reasonable firmness and courage might reasonably be expected to be terrified.
18 The first defendant’s plea amounted to an acceptance that his conduct satisfied each of the above elements. I return to the sentencing remarks of Judge Kennedy which I have summarised in paragraph 15 above. The first defendant’s plea amounted to him accepting that he was part of a fight or unlawful use of violence or force which involved brandishing an offensive weapon, and having the effect upon bystanders referred to in the last of the three elements of the offence of affray.
19 It is trite tort law that the first defendant is a joint tortfeasor with the members of the group who surrounded the plaintiff and assaulted him. In short, he participated in the commission of the tort and acted in the furtherance of the common design, that being, an assault on the plaintiff. The law imposes upon him the same liability for the plaintiff's injuries regardless of whether he struck the blows which resulted in those injuries.[17]
[17]"Fleming’s The Law of Torts", 10th Ed. (Lawbook Co.) at 300-305, particularly at 304
20 Section 91 of the Evidence Act 2008 excludes the evidence of a judgement and convictions to prove the existence of a fact that was an issue in another proceeding. Section 92 contains a number of exceptions to that rule, and in particular, subsection (2) provides as follows:
"In a civil proceeding, section 91(1) does not prevent the admission or use of evidence that a party, or a person through or under whom a party claims, has been convicted of an offence…"
21 Therefore, the plaintiff can adduce evidence of the fact that the first defendant pleaded guilty to affray. It must follow that the plaintiff can adduce evidence of the basis of the plea of guilty; the admissions made by the first defendant of his involvement in the affray; and the findings made by the sentencing judge regarding the degree of the first defendant's involvement in the affray.
22 It seems to me that the plaintiff has no defence to the plaintiff's proceeding. He has admitted his involvement in the affray in his affidavit. He admitted his involvement in the affray by pleading guilty to affray. He admitted the degree of his involvement as recorded by Judge Kennedy in her sentencing remarks. It must follow that he has admitted being a joint tortfeasor with the persons who actually struck the blows which resulted in the plaintiff's injuries. He is, therefore, as liable as if he had struck those blows.
23 The statement of claim pleads that the first defendant battled and assaulted the plaintiff. It does not plead that the battery and assault were occasioned by members of the group including the plaintiff and that he was a joint tortfeasor, however, the evidence I have reviewed makes it abundantly clear that he was a joint tortfeasor and cannot, as a matter of law, now deny that fact. I think that no purpose is served by setting aside the judgement based upon the pleadings when a simple amendment to the pleadings would expose the first defendant to the same result. In any event Mr Ostermeyer did not choose to argue otherwise.[18]
[18]Nor was that point taken in the first defendant written submissions
24 I reserved the position of Mr Stanley and Mr Ostermeyer to make written submissions on the effect of section 92(2) of the Evidence Act 2008. I have read the submissions and consider them to be of little assistance.
Conclusion
25 For the reasons set out above I will dismiss the summons. I will order that the first defendant pay the plaintiff's costs of the summons to be assessed by the Costs Court, in default of agreement.
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