Suleiman v Tadic (Ruling)
[2017] VCC 1033
•3 August 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CI-16-00315
| SULTAN SULEIMAN | Plaintiff |
| v | |
| DRAGAN TADIC | Defendant |
---
JUDGE: | JUDICIAL REGISTRAR GURRY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 July 2017 | |
DATE OF RULING: | 3 August 2017 | |
CASE MAY BE CITED AS: | Suleiman v Tadic (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1033 | |
RULING
---
Subject: PRACTICE AND PROCEDURE
Catchwords: Application by defendant to set aside default judgment entered on 9 November 2016 – plaintiff attacked by two dogs – substituted service – whether defence on the merits – whether plaintiff would be prejudiced
Legislation Cited: County Court Civil Procedure Rules 2008; Civil Procedure Act 2010; Wrongs Act 1958
Ruling: Application granted.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr K Boden (Solicitor) | Starnet Legal Pty Ltd |
| For the Defendant | Mr J Levine | EAI Pty Ltd, trading as Boutique Defamation Lawyers |
JUDICIAL REGISTRAR:
1 An application was brought by the defendant for an order that the judgment in default of appearance entered on 9 November 2016 be set aside.
2 There was some uncertainty as to whether the summons had been issued, as an unissued summons had been served on the plaintiff’s solicitors, prior to the application on 17 July 2017. Regardless, the plaintiff’s solicitor consented to the application proceeding before me.
3 Proceedings were commenced by the plaintiff seeking damages for injuries allegedly sustained as a result of an incident which occurred on 15 February 2015 in a car park at 291-293 Sunshine Road, Tottenham, in the State of Victoria. On that date, the plaintiff was walking when attacked by two dogs. The plaintiff alleges that the dogs were owned by the defendant, being two German Shepherd dogs named Bob and Xena.
4 The address for the defendant in the Writ was listed as 3/24 Devonshire Road, Sunshine, Victoria. Attempts to serve the proceedings at that address on the defendant were unsuccessful. As a result, the plaintiff obtained an Order from Judge O’Neill on 23 May 2016 for leave pursuant to Order 6.10 of the County Court Civil Procedure Rules 2008 to serve the Writ and Statement of Claim filed on 1 February 2016 upon the defendant by leaving the document at the defendant’s mother’s address of 6 Dorset Avenue, Keilor East, Victoria.
5 As no appearance was filed, an interlocutory judgment was entered against the defendant on 9 November 2016 with an order that the defendant pay the plaintiff’s damages to be assessed.
6 In order to obtain the judgment, the plaintiff filed an affidavit of service of Kenneth James Ramshaw, process server, sworn on 15 July 2016. In that affidavit, the deponent stated that he had served the defendant with a sealed copy of the general form of order, together with a copy of the Writ, at 6 Dorset Avenue, Keilor East by leaving the documents at the defendant’s mother’s address in a sealed envelope addressed to the defendant in the letterbox at that address.
7 For the purpose of this application, I was provided with an outline of submissions in opposition to the application by the plaintiff’s solicitor, together with an affidavit of the plaintiff’s solicitor, Kimani Boden, sworn on 17 July 2017. For the defendant, I was provided with an affidavit of the defendant, Dragan Tadic, sworn on 19 June 2017.
8 The circumstances relevant to exercising discretion to set aside a judgment include:
(a) Whether the defendant has a defence on the merits;
(b) The reason for the default of the defendant in consequence of which the judgment was obtained;
(c) Whether the application to set aside the judgment was made promptly after the judgment came to the knowledge of the defendant; and
(d) Whether, if the judgment were set aside, the plaintiff would be prejudiced in any respect which could not be adequately compensated for by a suitable award of costs and a giving of security.[1]
[1]Williams Civil Procedure Victoria, page 3336, paragraph 121.07.15
9 As to the circumstances of service of the proceedings, the defendant deposed, at paragraph 12 of his affidavit that up until May 2017 he and his mother had not spoken for approximately two-and-a-half years because of family issues. At paragraph 13, the defendant deposed that at no time had he been told by his mother about any conversation she had with the licenced process server, Ramshaw. At paragraph 14, the defendant deposed that in May of 2017, he had spoken to his mother, who stated that she had never received the Writ and Statement of Claim.
10 On whether there is any defence on the merits a draft Defence was exhibited at DT4 of the defendant’s affidavit. The essence of the Defence appears to be one of identity in respect of the dogs that allegedly assaulted the plaintiff. The defendant, at paragraph 1 of the draft Defence, denies paragraph 1 of the Statement of Claim, that he was the owner of two German Shepherd dogs named Bob and Xena, and says that at no relevant time did he own the two dogs that were captured. Contradicting this however, is paragraph 16 of the defendant’s affidavit where he deposed that he did in fact own two German Shepherd dogs, Bob and Xena. However at paragraphs 17 and 18 he deposed that Bob was discovered away from the yard where they were kept and Bob and a stray German shepherd were taken into custody. Whilst the dogs matched the description of the dog that attacked the plaintiff, at no time was Xena absent from the yard.
11 It was also argued by counsel for the defendant that the Statement of Claim pleads, at paragraph 4, that the defendant was guilty of negligence in permitting the dogs to remain at large and to attack the plaintiff. Given that pleading, the plaintiff is required to satisfy the requirements of the Wrongs Act 1958. In particular, given the Orders of Judge Saccardo of 13 April 2017, the plaintiff’s claim is limited to recovery of damages in respect of non-pecuniary loss and therefore, the plaintiff is required to satisfy the requirements of s28LE of the Wrongs Act and establish that he had suffered a significant injury.
12 In regard to the other circumstances which I am to take into account, the defendant deposed, and submissions were made before me, that upon first being made aware of the judgment against the defendant, he obtained legal representation and subsequently, brought this application before the Court.
13 Submissions were made by the plaintiff on the explanation given by the defendant for not having filed an appearance and whether the application was made promptly to set aside the judgment. It is my view that the plaintiff asked me to take into account and draw conclusions on matters in those submissions beyond the evidence before me.
14 On whether there was any Defence on its merit, the plaintiff submitted that to exhibit a defence to an affidavit was insufficient to satisfy the test. It was argued that the defendant is required to go on oath as to any defence with full particularisation and detail.
15 Finally, it was submitted that the plaintiff’s prejudice would not be cured by an order for costs, however no further arguments were presented in support of what that prejudice was.
16 Whilst there may be some deficiencies in the way the draft Defence is pleaded, I accept that the defence outlined that the identity and ownership of the dog responsible for the attack was in dispute. Further the plaintiff at this time has not satisfied the requirements for significant injury which must be met under the Wrongs Act. In my opinion this is sufficient for me to be satisfied that there is a defence on the merits.
17 For two-and-a-half years until May 2017, the defendant deposed that he had not been on speaking terms with his mother. I note further that in regard to the affidavit of service of Kenneth James Ramshaw of 15 July 2016, he deposed that the documents were left by leaving them at the defendant’s mother’s address in a sealed envelope addressed to the defendant in a letterbox at that address. The affidavit does not depose that the documents were actually given to the defendant’s mother. I am therefore not satisfied that the documents were brought to the defendant’s attention until deposed to by him.
18 A matter which I also consider I should take into account in making my decision are the provisions of the Civil Procedure Act 2010.
19 Specifically, s9(1)(a), headed ‘Court’s powers to further the overarching purpose’, says:
“In making any order or giving any direction in a civil proceeding, a court is required, for furthering the overarching purpose, to have regard to a number of objects which includes the just determination of the civil proceeding.”
20 At s9(2), it says the Court is to have regard to a number of matters for the purposes of subsection (1). Section 9(2)(f), says:
“Any prejudice that may be suffered by a party as a consequence of any order proposed to be made or direction proposed to be given by the court.”
21 I note that there was evidence before me that upon learning of the interlocutory judgment, the defendant obtained legal representation without undue delay and brought this application. This conduct appears inconsistent with a person served with the documents having chosen to ignore them.
22 I consider it would be not in the interests of justice to deny the defendant an opportunity to defend this claim and, for that reason, I am prepared to grant the defendant’s application to set aside the default judgment entered on 9 November 2016.
23 I am not satisfied that there is any prejudice to the plaintiff that could not be corrected by an appropriate order of costs relevant to the entering of the interlocutory judgment and the hearing of the application to set aside the judgment.
- - -
0
0
0