Lubura v Nezirevic [2013] 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 [2013] 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.

FACTS

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 [30].  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 [31]. 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 [33].

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 »

Liskula Cohen unmasking of blogger is not as big a deal as reported

August 20, 2009

Today’s Sydney Morning Herald is doing the meltdown thing about a plaintiff, Liskula Gentile Cohen,  successfully forcing Google to provide identifiers of a blogger.  The ruling enables  Cohen to  identity the blogger that described her as a skank and an old hag.  Actually the blogger said:

“I would have to say the first-place award for ‘Skankiest in NYC’ would have to go to Liskula Gentile Cohen,” the anonymous blogger wrote.

“How old is this skank? 40 something? She’s a psychotic, lying, whoring, still going to clubs at her age, skank.”

Very blogspeak.  Cohen is planning on suing.  In the Australian context there would be some interesting pleading challenges if one was to run a justification defence.  But the US laws are far more difficult for the plaintiff, particularly if Cohen is regarded as a public figure.  Cohen has apparently already made contact with the blogger by phone.  They know each other.

The Times on line (UK) has run a similar theme to the Australian Press reports with  Vogue model Liskula Cohen wins right to unmask offensive blogger, but it should know better.  It identified Richard Horton, the Night Jack blogger, months ago and fended off his attempt to maintain anonymity publish his details prompting a breathless analysis in June under the banner Analysis: bloggers can no longer be sure on anonymity,  The decision, by Mr Justice Eady, of The Author of a Blog v Times Newspapers Limited refusing an injunction to protect a blogger’s anonymity is hardly ground-breaking law.

There has never been a separate stand alone right to unmask/identify a blogger.

The interlocutory decision of the Manhattan Supreme Court sets no precedent.  The case involves long established principles Read the rest of this entry »