Lubura v Nezirevic  VSCA 215 (4 September 2013): Application to set aside judgment obtained in default of appearance, Supreme Court (General Civil Procedure) Rules 2005 O 64 & County Court Civil Procedure Rules 2008 O 64A.
September 24, 2013
A standard brief for very junior barristers starting out has been to make application to set aside a judgment obtained in default of defence or appearance. The gold standard case setting out the principles was, and to a large extent is, Kostakenellis v Allen. Now the Court of Appeal in Lubura v Nezirevic  VSCA 215 has considered the first element of the test for setting aside judgments, whether the applicant has a defence on the merits. While it is a unanimous decision each of Warren CJ, Osborn JA and Robson AJA each had separate reasons.
The facts are most comprehensively set out in Robson AJA’s reasons.
Early in the morning of Sunday 8 July 2007 the respondent and other friends attended at the Red Star bar in Pultney Street, Dandenong . A fight broke out between two groups, one of which contained the respondent and the other containing the appeallent, both in the bar and outside on the street subsequently. The respondent was surrounded and assaulted by at least two males with bottles, receiving injuries including bruising and laceration to his ear and head, as well as a ruptured globe to his right eye. He lost sight in his right eye as a consequence of the assault. Other members of the group were also assaulted . The appellant was initially charged with four counts: intentionally causing serious injury, and (as an alternative) recklessly causing serious injury, common assault, and affray. On 25 November 2011, a fresh presentment was filed, with two charges to which the appellant pleaded guilty; assault of a person unknown to the Director of Public Prosecutions and affray .
On or about 30 August 2010 the Appellant received the writ in the civil proceeding brought by the respondent. The appellant says Read the rest of this entry »