1 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.

2 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.

3 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:

• 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]

4 In this case the Court is principally concerned with the first element set out by the Full Court in Kostakanellis, namely, whether there is a defence on the merits. In Evans v Bartlam Lord Wright stated that 'The primary consideration is whether (the

5 defendant) has merits to which the court should pay heed; if merits are shown the court will not prima facie desire to let a judgment pass on which there has been no proper adjudication.'[3] This passage was cited by the Full Court in Kostakanellis. A defendant is ordinarily required to file an affidavit of merits which discloses a prima facie defence.[4] The affidavit must set out the defence on which the defendant intends to rely, however the defendant is not required to show that the defence will succeed.[5]

6 The affidavit filed by the appellant (as defendant) in this matter does not provide, on its face, a fully satisfactory defence on the merits. The affidavit is deficient in that whilst it sets out the reasons for delay, the deponent gives little information as to the defence the defendant relies on. The Court was obliged to sift through the exhibits to the affidavit, in particular the Crown opening and submission at the appellant's criminal trial, as well as transcripts from the criminal trial. A Court should not to have to search for a defence. Ultimately, in light of the material available to the Court from the criminal trial as described by Osborn JA, I am satisfied that there is a defence on the merits in this case and accordingly error has been made out. That said, in the circumstances, the conditions attached to the granting of leave are essential in the exercise of the discretion.

7 The background to this appeal is set out in the judgment of Robson AJA and it is unnecessary to repeat it. I respectfully agree with the disposition of the appeal proposed by Robson AJA. I also agree with his reasons with respect to ground 1 of appeal.

8 In respect of ground 2 of appeal,[6] I agree that the appellant's plea of guilty to

affray did not involve an admission that he assaulted the respondent. It is not implicit in the appellant's plea that this was the fact. Nor did the summary of the Crown case, accepted as evidence on the plea hearing, establish that he did so. Moreover there was a series of circumstances in evidence which tended to point the other way. The appellant was armed with a tyre lever. The respondent was assaulted with bottles. DNA of a person other than the appellant was on one of the bottles. There is no DNA evidence implicating the appellant. The respondent was assaulted after he had run some distance away from the position where the affray commenced. As the sentencing judge found, the evidence did not establish the whereabouts of the appellant at the time of the assault.

9 I also agree in respect of ground 3[7] that participation in the affray did not necessarily demonstrate that the appellant was responsible as a joint tortfeasor for the infliction of serious injuries upon the respondent.

10 More particularly, agreement to participate in an affray may be agreement to conduct falling short of participation in a battery with weapons such as bottles. In I v Director of Public Prosecutions,[8] Lord Hutton, in a judgment with which the other Law Lords agreed, said with respect to the elements of an affray:

The offence of affray, both at common law and now under statute, was primarily intended to punish a person or persons who engaged in a face-to-face confrontation where violence was used or threatened and where reasonably firm-minded members of the public would be put in fear. As Lord Bingham of Cornhill CJ said in R v Smith:[9]

It typically involves a group of people who may well be shouting, struggling, threatening, waving weapons, throwing objects, exchanging and threatening blows and so on.

His Lordship later said:[10]

... a person should not be charged with the offence unless he uses or threatens unlawful violence towards another person actually present at the scene and his conduct is such as would cause fear to a notional bystander of reasonable firmness.

11 The relevant principles governing tortious liability for the acts of another were stated by Brennan CJ, Dawson and Toohey JJ in Thompson v Australian Capital Television Pty Ltd:[11]

The difference between joint tortfeasors and several tortfeasors is that the former are responsible for the same tort whereas the latter are responsible only for the same damage. As was said in The 'Koursk',[12] for there to be joint tortfeasors 'there must be a concurrence in the act or acts causing damage, not merely a coincidence of separate acts which by their conjoined effect cause damage'. Principal and agent may be joint tortfeasors where the agent commits a tort on behalf of the principal, as master and servant may be where the servant commits a tort in the course of employment. Persons who breach a joint duty may also be joint tortfeasors. Otherwise, to constitute joint tortfeasors two or more persons must act in concert in committing the tort.[13]

In England, Australia and New Zealand, criteria for the identification of joint tortfeasors are to be found in expressions used in The 'Koursk'.[15] Scrutton LJ (at 155) there spoke of 'two persons who agree on common action, in the course of, and to further which, one of them commits a tort', saying that in such a case there is one tort committed by one of them 'in concert with another'. Sargant LJ (at 159-160) accepted the proposition that persons are joint tortfeasors when their 'respective shares in the commission of the tort are done in furtherance of a common design' so that those who 'aid or counsel, direct, or join' in the commission of the tort are joint tortfeasors.

13 The statement of claim before the County Court judge was pleaded on the basis that the appellant himself battered the respondent and not on some other basis of joint liability.

14 The evidence put forward at the plea hearing did not establish that the respondent was bashed and very seriously injured pursuant to a common design shared by the appellant with the assailants. Indeed if there were evidence of a joint criminal enterprise of this kind presumably the Crown would have proceeded on this basis at trial.

15 Proof of the extent of a criminal joint enterprise may of course involve difficult questions of fact and degree[16] and the same kind of issue may bedevil proof of a joint enterprise for the purpose of a claim in tort.

16 In my view the trial judge fundamentally misdirected himself as to the effect of the plea to affray and its consequences. In turn, the existence of an arguable defence was of primary importance to his considerations.[17]

17 It is true as counsel for the respondent submitted that the defence raised was a negative defence which centred upon absence of proof of a critical element of the plaintiff's case rather than a positive defence which raised evidence directly disputing the plaintiff's case. Nevertheless once it is plain that the appellant had an arguable defence I do not see that the summary judgment could properly be allowed to stand. The fundamental principle must be that justice allows real issues between the parties to be tried subject to procedural considerations directed to achieving finality in litigation and the imposition of conditions avoiding prejudice arising from the prior course of the matter. In the present case because the appellant has proffered an explanation for his procedural default the fundamental principle should prevail subject to the imposition of appropriate conditions.

18 The fundamental principle was relevantly stated by Jenkins LJ in the leading case of Grimshaw v Dunbar[18] as follows:

I think that a new trial should seldom, if ever, be refused merely on the ground that the applicant's case appears to be a weak one, and it is, moreover, difficult to see how the tenant's case here could on the face of it be classed as obviously weak in view of the payment into court. Be that as it may, a party to an action is prima facie entitled to have it heard in his presence; he is entitled to dispute his opponent's case and cross-examine his opponent's witnesses, and he is entitled to call his own witnesses and give his own evidence before the court. Prima facie that is his right, and if by some mischance or accident a party is shut out from that right and an order is made in his absence, then common justice demands, so far as it can be given effect to without injustice to other parties, that that litigant who is accidentally absent should be allowed to come to the court and present his case -- no doubt on suitable terms as to costs.[19]

19 In Lau v Citic Australia Commodity Trading Pty Ltd[20] Winneke P referred to considerations bearing on the relative weight of a defence in this context as follows:[21]

It may be that the material demonstrated the defence to be a weak one, but that is not to say that, when all the facts are exposed, it will not turn out to be a good one. As Lord Justice Denning, as he then was, said in Hayman v Rowlands:[22]

The party asking for a new trial ought to show some defence on the merits, but so long as he does so, the strength or weakness of it does not matter.

20 Tadgell JA also made clear that the critical question informing the court's discretion is not whether the court is of the opinion the defence will succeed but simply whether a defence on the merits has been adequately raised:

The learned judge's language unfortunately suggests that he set himself the task of deciding whether the appellant's outlined defences would succeed. For example, when dealing with the third head of the appellant's proposed defence His Honour said 'the evidence in support of this defence gives me cause for concern'; and he concluded, after analysis, by saying 'this defence too is not made out.' It was, with respect, not a question whether the defence was made out. Rather, the primary consideration (as Lord Wright put it in Evans v Bartlam,[23] in a passage quoted and adopted by our Full Court in Kostokanellis v Allen[24] was whether the appellant had merits to which the court

should pay heed.[25]

21 Ormiston JA agreed with the judgments of both the President and Tadgell JA.

22 It follows that the criticisms which counsel for the respondent made of the nature of the defence offered in the present case are not in point.

23 I agree with Robson AJA that the decision must be set aside subject to appropriate conditions.

24 I also agree in the discretionary conditions proposed by Robson AJA. In my view the requirement that the appellant not only pay the costs thrown away as a result of the default judgment but also provide security for costs is justified having regard to all the circumstances of the case.

25 By the leave of this Court,[26] the appellant (a defendant to a County Court proceeding) appeals pursuant to s 74 of the County Court Act 1958 and O 64A of the Supreme Court (General Civil Procedure) Rules 2005 against the decision of his Honour Judge Misso of the County Court dismissing the defendant's application to set aside a default judgment entered against the defendant in favour of the plaintiff in the County Court proceeding on 12 November 2012.[27]

26 Mr Nezirevic, the plaintiff to the County Court proceeding (the respondent to the appeal), was seriously injured in an assault that took place in Dandenong in the early hours of the morning on 8 July 2007. As a consequence of the assault, the respondent lost the sight of one eye and suffered other injuries. In the County Court proceeding, the respondent claimed damages from the appellant, alleging assault

and battery by the appellant and another defendant (who has since been removed as a defendant).

27 The respondent obtained judgment against the appellant in default of the appellant's appearance. On 20 January 2011, the County Court ordered an assessment of damages. On 30 September 2011, the appellant was ordered to pay the respondent damages in the sum of $262,000 plus interest.

28 By a summons filed 2 March 2012, the appellant applied under r 21.07 of the County Court Civil Procedure Rules 2008 to set aside the judgment on the grounds that the appellant had a defence on the merits, that he had an explanation for the default, that he acted promptly since the default judgment came to his notice and that any prejudice to the respondent could be adequately addressed on the appeal. The application was dismissed with costs. As mentioned above, the appellant sought - and was granted - leave to appeal from that decision, and appeals against the dismissal of his application.

29 For the reasons that follow, I would allow the appeal, set aside the judgment, and grant leave to the appellant to appear.

30 On Sunday 8 July 2007, in the early hours of the morning, the respondent and other friends attended at the Red Star bar in Pultney Street, Dandenong, after leaving the Bosnian Sports Centre. They were in various stages of intoxication. Whilst at the Red Star bar, another group of men entered the bar dressed in soccer clothing, some of which bore the logo of a Serbian soccer club.

31 At approximately 3.00 am, some of the these people started to sing Serbian national songs, including Serbian war songs. The two groups left the club and a fight broke out between the two groups. The Serbian group was alleged to be holding glasses and bottles. The respondent says that he ran from the group, but 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. The respondent received emergency hospital treatment later that day, but lost sight in his right eye as a consequence of the assault. Other members of the group were also assaulted.

32 As a result of the alleged involvement by the appellant in the events of that night, the appellant was initially charged with four counts: intentionally causing serious injury, and (as an alternative) recklessly causing serious injury, common assault, and affray. A trial of all four charges was listed on three occasions: on 31 January 2011, 7 November 2011, and 16 November 2011. On this last occasion, the jury was discharged consequent to the announcement of a resolution of the proceeding.

33 As a result, on 25 November 2011, a fresh presentment was filed, with two charges to which the appellant pleaded guilty. The particulars of the offences to which the appellant pleaded guilty were that the appellant at Dandenong on 8 July 2007 assaulted a person unknown to the Director of Public Prosecutions, and that on 8 July 2007 he unlawfully fought and made an affray.

34 On 30 November 2011, upon the appellant's plea of guilt, the appellant was sentenced by her Honour Judge Kennedy of the County Court. Her Honour found the offences proven, but in the exercise of her discretion determined not to record a conviction. Her Honour imposed a fine of $2,000 without conviction in respect of each offence, totalling $4,000. The fine was stayed for a period of twelve months.

35 In the appellant's affidavit in support of his application to set aside judgment, the appellant deposed that on or about 30 August 2010, he received the writ in the civil proceeding brought against him by the respondent. The appellant says that he did not respond to the writ as he had already engaged Mr Theo Magazis (in September 2009) to act on his behalf in the County Court criminal proceeding, and he considered that Mr Magazis would already have a copy of the writ. The appellant deposes that he did not realize at the time of receiving the writ that it was for another proceeding, and not the criminal proceeding in which he was already represented by Mr Magazis.

36 The appellant deposed that on 9 August 2011, he received a letter from Patrick Robinson and Co solicitors enclosing the respondent's statement of claim and a copy of the affidavit of the respondent sworn on 8 August 2011. The appellant deposed that he did not respond to the letter from Patrick Robinson for the same reasons that he gave for not responding to the writ.

37 The appellant deposed that on or about 19 December 2011, he was served with a letter from the Sheriff's Office, enclosing a warrant and a copy of an affidavit sworn by the appellant on 15 December 2011 that related to the judgment debt of $262,680.09 obtained by the respondent against the appellant. The appellant deposed that on or about 19 December 2011, he was further served with a letter from the Sheriff's Office enclosing a warrant and an affidavit sworn by the respondent that related to the award of interest of $34,288.19 against the appellant in favour of the respondent.

38 The appellant deposed that on 9 January 2012, in response to receiving the warrants, he had a telephone conversation with Mr Magazis regarding the warrants, in which Mr Magazis informed him that the warrants were based on a separate civil proceeding relating to damages suffered by Mr Nezirevic as a result of the alleged assault charges brought against him in the criminal proceeding. The appellant deposed that Mr Magazis advised him that this was not his area of law and that he should seek advice from civil litigation lawyers regarding the separate civil proceeding and warrants.

39 The appellant deposed that on 10 January 2012, he conferred with David Baker of Baker Jones Lawyers in relation to the civil proceeding, and subsequently instructed Mr Baker to make the application to set aside the judgment and that he be granted leave to appear and file a defence to the proceeding.

40 The appellant issued a summons dated 2 March 2012 to set aside the judgment that came on before his Honour Judge Misso on 13 April 2012. On 23 April 2012, his Honour dismissed the application, giving written reasons for his ruling. On the application, the plaintiff was represented by counsel, who also appeared for him as counsel for the respondent in this appeal. After referring to the history of the matter, his Honour correctly identified that r 21.07 of the County Court Civil Procedure Rules 2008 provided a discretion to the Court to set aside a judgment entered in accordance with O 21.

41 The learned judge correctly identified the matters that he must evaluate in an application to set aside a judgment that has been regularly entered, as set out in Kostokanellis v Allen[28] as follows:

(a) whether the defendant had a defence on the merits;

(b) the reasons for the default on behalf of the defendant in failing to take any step to defend the plaintiff's proceeding resulting in the entry of judgment;

(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 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.

42 After considering the affidavit of the appellant and carefully comparing the criminal proceeding documents and the civil proceeding documents, his Honour held that the only conclusion that was reasonably open was that the appellant deliberately ignored the documents he was served with until visited by the Sheriff armed with a warrant of seizure and sale.

43 The learned judge also considered the evidence as to the merits of the appellant's defence. It is convenient to set out in some detail the material relied on by the appellant which was before his Honour.

44 The appellant deposed in his affidavit in support of his application that in or about August 2009, he received a presentment which also included particulars of the offence from the Director of Public Prosecutions, stating that the Crown - on behalf of the complainant (the respondent Mr Nezirevic) - had charged him on four counts being:

(2) Causing serious injury intentionally to Mr Nezirevic;

(3) Causing serious injury recklessly to Mr Nezirevic;

45 The appellant deposed that on or about 17 November 2010, his solicitor Mr Magazis received a letter from the Office of Public Prosecutions, dated 17 November 2010, which enclosed a copy of the presentment filed in the County Court and a copy of the summary of the Crown's opening in the contested criminal proceeding.

46 The Crown opening provided as follows (referring to the respondent as 'the complainant' and the appellant as 'the accused man'):

1. On Sunday, 8 July 2007 at approximately 12.30am, the complainant: Fajco Nezirevic and other friends attended at the Red Star bar in Pultney Street Dandenong.

2. Before attending these premises the complainant and his companions had been at different locations in the Springvale Noble Park area where they consumed alcohol in a social setting.

The men were variously affected by alcohol, although the complainant indicates that when he left the Bosnian Sports Centre earlier he had food and coffee and that he did not consider himself to be significantly intoxicated.

He considered that his friend: Mesic was intoxicated.

3. Upon entering the premises they went to the bar and were drinking coffee and beer.

During this time, a group of males entered the bar dressed in soccer clothing, some of which bore the logo of a Serbian soccer club.

At approximately 3.00am some of these people started to sing Serbian national songs which concerned the complainant who suggested to his friends that they leave the premises before any trouble commenced.

The complainant's understanding of the songs being sung was that they were Serbian war songs.

4. The complainant said farewell to the owner of the premises: Mr Nebojsa and commenced to leave the premises via the exit at the top of the stairs.

The complainant was struck from behind without notice or cause with some object by the accused who had earlier been singing in the bar. (Count one: common assault).

5. The CCTV video footage obtained from the club shows the complainant being struck by the accused man in the vicinity of the stairs, after which the victim leaves the premises and goes to a vehicle parked in Pultney Street.

6. The complainant's next memory of what occurred is of being outside the club in the street where he saw one of his friends being attacked by a tall skinny male who was forcing his head into a car door.

The complainant was unable to assist him because at that time a group of people including the accused man approached him carrying bottles in their hands.

7. The complainant ran from the group but was chased by them and struck by them with the bottles several times and kicked while he was on the ground before returning to the club. Various threats were uttered during this incident to the victim who lost consciousness as a result of the attack.

(Counts two and three: intentionally and recklessly causing serious injury, pleaded as alternatives.

Given the number of people involved in the incident outside the club, the prosecution also alleges that the same constituted an affray in the circumstances of what occurred: count four).

8. The complainant was later removed from the scene to hospital.

He received bruising and laceration to his ear and head as well as a ruptured globe to his right eye and received emergency hospital treatment later that day.

The Prosecution alleges that the injuries received are 'serious injuries' as defined.

9. The attack upon the complainant was observed by other people including a motorist: Mr Trifunov who drove to the Dandenong police station and reported the matter.

10. The complainant was able to identify the accused man as being the person who assaulted him in the club as well as the person who stabbed him in the eye with a broken bottle during the incident outside the club.

11. The accused man was later interviewed by the police on 18 September 2007 and admitted being involved in the assault of the complainant inside the club.

He admitted that he was present in the club and was one of the people singing Serbian songs but denied being involved in any incident outside the club.

47 The appellant deposed that during the period 7 November through 9 November and 16 November to 24 November, he attended the County Court of Victoria for the trial of the criminal proceeding before her Honour Judge Kennedy.

48 The appellant deposed that on 18 November 2011, during the course of the trial in the criminal proceeding, the complainant was cross-examined by counsel. The appellant deposed that during the cross-examination and after viewing the CCTV footage produced as evidence in the court, the complainant conceded that the appellant did not assault him.

49 The appellant deposed that on 21 November 2011, after this concession made by the complainant, the Crown withdrew the charges of intentionally causing serious injury and recklessly causing serious injury to Mr Nezirevic.

50 The appellant deposed that he was advised by counsel and he pleaded to a charge of common law assault of an unknown male (not Mr Nezirevic) and affray on the basis that he was not involved in any assault upon the complainant.

51 On 24 November 2011, the appellant's solicitor, Mr Magazis, received a facsimile letter from the Office of Public Prosecutions dated 24 November 2010 which enclosed a copy of the new presentment filed in the County Court on 21 November 2011, and a copy of the Crown plea opening dated 24 November 2011.

52 The particulars of offence now alleged against the appellant were that the 'Director of Public Prosecutions present[ed] that [the appellant] at Dandenong in [Victoria] on the 8th day of July 2007 assaulted a person to the said Director unknown ... [and] Count 2: the Director of Public Prosecutions further presented that [the appellant] at Dandenong in [Victoria] on the 8th day of July 2007 unlawfully fought and made an affray.'

53 The written opening of the Crown on the plea was similar to the previous opening, up to the point where the previous opening referred to the Serbian war songs being sung. The new opening on the plea thereafter provided as follows:

11. While leaving the club the accused and his friends were followed by a group of males including the accused man who in the course of an apparent altercation as seen on CCTV footage obtained from the club to strike an unknown male.

The accused man when interviewed told Police that he had struck the complainant: Fajko Nezerevich with a single blow because of insulting behaviour. His notice of defence asserts an assault upon an unidentified male.

Security footage shows Nezerevich leaving the building with security and the accused man remaining at the stair area on the first floor of the building.

12. There is no video footage of events occurring outside the club.

13. Nezerevich and his friends left the club and went to the adjacent Pultney Street where their car was parked when they were approached by a number of males holding glasses and bottles whom they recognised as being people who had earlier been singing nationalist songs in the club.

14. Nezerevich ran from the group but was surrounded and assaulted by at least 2 males with bottles receiving injuries including bruising and laceration to his ear and head as well as a ruptured globe to his right eye and received emergency hospital treatment later that day.

Other members of his group were also assaulted. One of them: Brkic had got a wheel brace out of his car when the youths approached for protection:

15. The attack upon the complainant was observed by other people including a motorist: Mr Trifunov who drove to the Dandenong police station and reported the matter.

16. The accused man admitted that he was present in the club and was one of the people singing Serbian songs but denied being involved in any incident outside the club.

The accused man told Police initially that he didn't think that he had gone downstairs but then that if he had he returned after 10 to 20 seconds:

The accused stated that he did not get involved in any fighting outside the club and that he went home:

He thought he and his friends had been singing nationalist songs in the club:

17. Subsequent DNA analysis of remains of a bottle neck at the scene excludes the accused as a contributor of any source material but does not exclude Mladen Djuric as a co-contributor together with the complainant whose blood was on the bottle.

Djuric was not positively identified by any witness and the prosecution of him was authorised although a brief of evidence was submitted regarding him.

18. The accused man by his plea admits to being outside the club and being one of the group who was present when the various incidents occurred.

It is not possible on the evidence to be specific as to his whereabouts with respect to the assault on Nezerevich although he was positively identified by the complainant as his assailant:

The identification was linked to an assault in the club at the stairwell area which has been subject to substantial testing in cross-examination.

The learned trial judge will recall the evidence and answers given in this respect and the prosecution does not say that proof of identification to the required criminal standard could result in consequence.

19. The submissions of the Directors of Public Prosecutions is that a non-custodial sentence is not precluded in this matter.

54 The appellant deposed that on 25 November 2011, he attended at the County Court of Victoria for the scheduled plea hearing and he received a fine. He exhibited the reasons for sentence of her Honour Judge Kennedy dated 25 November 2011.

55 In her Honour's reasons for judgment, her Honour Judge Kennedy said as follows.

(8) On Sunday 8 July 2007 at approximately 12.30am, Nezirevic and other friends attended at the Red Star Bar in Pultney Street, Dandenong. They were variously affected by alcohol and continued to drink at the Red Star.

(9) When subsequently leaving the club at 3.00am, Fajko Nezirevic and his friends were followed by a group of males which included yourself. In the course of an apparent altercation you are seen on CCTV footage obtained from the club to strike an unknown male.

(10) Fajko Nezirevic and his friends then left the club and went to the adjacent Pultney Street where their car was parked. They were then approached by a number of males holding glasses and bottles whom they recognised as being people who had earlier been singing nationalist songs in the club. Mr Nezirevic ran from the group but 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 received emergency hospital treatment later that day and lost the sight of his right eye in consequence. Other members of the group were also assaulted. One of them, Minsur Brkic, had got a wheel brace out of his car for protection when the youths approached.

(11) The attack upon Mr Nezirevic was observed by other people including a motorist Mr Trifunov who drove to the Dandenong Police Station and reported the matter.

(12) By your plea you admit to being outside the club and being one of the group who was present when the various incidents occurred. You also admit to taking a tyre lever from your car and thereby being part of the group involved in the general activity outside the club.

(13) Your act of striking and of participating in an affray are to be denunciated and would generally warrant serious sanctions on general deterrence principles.

(14) There are, however, a number of factors which reduce your moral culpability in this particular case.

(15) In terms of the assault:

• The CCTV footage suggests no premeditation; rather that you were trying to appease two young aggressors who appeared to be showing considerable antipathy to Mr Nezirevic;

• Although your identified victim appears to fall back, he also appears to regain a standing position very promptly;

• There appears to have been no injury suffered as a result of your offending.

(16) In relation to the affray, the evidence does not establish that you were the perpetrator of the serious assault on Mr Nezirevic. It is not even possible to be specific as to your whereabouts with respect to this assault.

56 It is apparent from this evidence that the concession by the respondent that the appellant did not assault him related to the incident inside the bar, and does not relate to the incident outside the bar where the respondent was attacked and severely injured.

The trial judge's decision on the defence on the merits

57 His Honour Judge Misso said (in his reasons of 23 April 2013) that the appellant alleged that he was not the person who actually assaulted the respondent.[29] His Honour said that that was the appellant's defence, but that defence ignored the appellant's plea of guilty to affray and the findings of the sentencing judge, Judge Kennedy.[30] The appellant did not exhibit or tender during the hearing before Judge Misso his notice of defence.

58 His Honour said that there were two stages to the conduct of the appellant identified by her Honour (viz, inside the bar and in the street outside the bar). His Honour said that during the second stage the appellant was a member of a group of men who confronted the respondent in a car park outside the bar. His Honour said that appellant admitted being armed with a tyre lever. His Honour said that the appellant was a member of a group who were armed with glasses and bottles who surrounded the respondent. The learned judge said that the respondent was assaulted by a least two members of that group.

59 His Honour said that the appellant had admitted his involvement in the assault on the respondent by his affidavit. His Honour said that the only defence the appellant raised was that the respondent conceded during the trial that the appellant was not the person who actually struck him.

60 His Honour said that the appellant 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 respondent. His Honour said that on his reading of the sentencing remarks that was quite plainly wrong. His Honour said that Judge Kennedy observed that, in relation to the affray, the evidence did not establish that the appellant was the perpetrator of the assault on the respondent. His Honour said, however, that it was clear from the whole of the sentencing remarks that the affray encompassed a number of events including the assault upon the respondent.

61 His Honour correctly set out the elements of an affray. His Honour said that 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:

(a) That there was a fight or an unlawful use of violence or force;

(b) The accused was involved in the fight or use of violence or force, for example, brandishing an offensive weapon; and

(c) 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.

62 His Honour said that the appellant's plea amounted to an acceptance that his conduct satisfied each of the above elements. His Honour then returned to the sentencing remarks of Judge Kennedy.

63 His Honour said that the appellant'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.

64 His Honour held that it was trite tort law that the appellant was a joint tortfeasor with the members of the group who surrounded the respondent and assaulted him.

65 His Honour held that, in short, the appellant participated in the commission of the tort and acted in the furtherance of the common design, being an assault on the respondent. His Honour said that the law imposes upon the appellant the same liability for the respondent's injuries regardless of whether he struck the blows which resulted in those injuries. His Honour referred to Fleming's The Law of Torts.[31]

66 After referring to ss 91 and 92 of the Evidence Act 2008, his Honour said that the respondent would be able to adduce evidence of the fact that the appellant pleaded guilty to affray. His Honour said that it must follow that the respondent could adduce evidence of the basis of the plea of guilty; the admissions made by the appellant 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.

67 His Honour concluded that it seemed to him that the appellant had no defence to the respondent's civil proceeding. His Honour said that the appellant had admitted his involvement in the affray in his affidavit, by pleading guilty to affray, and the degree of his involvement as recorded by Judge Kennedy in her sentencing remarks.

68 His Honour said that it must follow that the appellant had admitted being a joint tortfeasor with the persons who actually struck the blows which resulted in the respondent's injuries. His Honour found that the appellant was, therefore, as liable as if he had struck those blows.

69 His Honour referred to the statement of claim that pleaded that the appellant battled (sic, battered) and assaulted the respondent. His Honour acknowledged that the statement of claim did not plead that the battery and assault were occasioned by members of the group including the appellant and that he was a joint tortfeasor. His Honour said, however, that the evidence he had reviewed made it abundantly clear that the appellant was a joint tortfeasor and could not, as a matter of law, now deny that fact. His Honour said that he thought that no purpose was served by setting aside the judgement based upon the pleadings when a simple amendment to the pleadings would expose the appellant to the same result.

70 His Honour therefore dismissed the summons with costs.

71 Although the notice of appeal refers to six grounds, counsel for the appellant relied on three grounds.

72 Ground 1: The learned judge erred in law in rejecting the appellant's explanation for his default in filing a notice of appearance because (his Honour held) the only conclusion reasonably open was that the appellant deliberately ignored the various court documents he was served with until the Sheriff attended with the warrant of seizure and sale.

73 In his Honour's reasons for judgment, his Honour Judge Misso said as follows:

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.

74 The appellant submits this conclusion was erroneous in logic and law. The appellant says that his affidavit explained his inactivity after he was served with the County Court documents. In substance, the appellant says that he did not respond to the writ as he had already engaged a solicitor to act for him in the criminal proceeding and considered that the solicitor would already have a copy of the writ. He deposed that he did not realise that it was for another, separate, proceeding.

75 The appellant says that this evidence was given under oath and was not tested by the respondent or by the learned judge in cross-examination.

76 The appellant concedes that an experienced legal eye would immediately detect and apprehend the difference between the criminal proceeding and the civil proceeding, but that the learned trial judge should not have excluded the reasonable possibility that a plasterer from Noble Park with a non-English speaking background may well not have understood the difference.

77 The appellant contends that it is an error of law on the part of the learned judge to conclude that in these circumstances the only explanation open was a decision on the part of the appellant to deliberately ignore the various court documents served upon him.

78 The appellant says that another possible and plausible explanation for the default was simple error or oversight, and that the Court should be slow to conclude a deliberate or contumelious disregard of Court documents and orders.

79 The respondent points to three occasions where the evidence demonstrated that the appellant had received notice of the claim:

(b) service of the order of her Honour Judge Davis, dated 20 January 2011, on 1 February 2011;

(c) service of the plaintiff's affidavit and statement of claim on 9 August 2011.

80 The respondent contends that the learned judge's conclusions were well reasoned and available to his Honour on the evidence.

81 His Honour set out that the documents sent to Mr Lubura regarding the civil action were markedly different to the presentment in the criminal proceedings. Further his Honour also noted that the appellant had instructed a firm to represent him in the criminal proceedings, yet he chose not to show the civil documentation to them once he had received it. While I accept there is evidence to suggest the appellant ignored the documents relating to the civil proceeding, I cannot agree with his Honour that it was the only option reasonably open to him. The appellant's submission provides sufficient information to allow this Court to find that it was open to view the inactivity as a mistake or oversight as opposed to deliberate inactivity.

82 The respondent contends that, as the appeal is from an interlocutory order and that the order is a discretionary one, there is a strong presumption in favour of the correctness of the decision appealed from.[32] The respondent also relies on the well established principles applicable to the review of a discretionary decision established in House v The King,[33] where the High Court of Australia held that for an appellate court to interfere in a discretionary decision:

It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so.[34]

In this case, the appellant contends that the error is the false finding by the learned judge that the only conclusion that was reasonably open was that the appellant deliberately ignored the civil proceeding court documents. For the reasons explained, that was not the only conclusion that was reasonably open. In that sense, the trial judge took into account an irrelevant consideration and erred in law.

84 Ground 2: The learned judge erred in law in holding that the appellant's plea of guilty in the criminal proceeding to the charges of assault of a person unknown and affray necessarily amounted to an admission of the tort of assault and battery of the plaintiff, which was the subject of the plaintiff's civil claim.

85 The appellant's admission of the assault count was to the assault of an unknown person. That does not amount to an admission of an assault of the respondent. Further, the sentencing remarks of her Honour Judge Kennedy make plain that the admission was not an admission to an assault or battery of the respondent.

86 The appellant submits that the plea of guilty to affray in the criminal proceeding is not determinative of the question of whether or not the appellant has a defence on the merits to the civil proceeding, where it is alleged the appellant battered and assaulted the respondent. The plea of guilty was to unlawful fighting and to affray.

87 In response, the respondent criticises the appellant's affidavit. The respondent says that the appellant claims that he has a defence on the merits but has failed to reconcile his pleas of guilt to the count that he 'unlawfully fought and made an affray' to his claim that he has a defence on the merits. The respondent says that the appellant has not expressly denied assaulting or battering the respondent during the affray. Further, the appellant has not explained what it is he did which constituted the affray and how he is able to reconcile that with a defence on the merits.

88 There is substance in these criticisms. They may go to the Court's discretion in deciding whether or not to allow the application to set aside the judgment or the terms on which such application is permitted. They are not relevant, however, to assessing whether any error is disclosed in the learned judge's observation that a plea of guilty to the unlawful fighting and affray constituted an admission of assault and battery of the respondent.

89 The elements of the offence of affray are participation in unlawful fighting or violence of a kind calculated to cause any person of reasonable firmness of mind which might have witnessed the scene to be terrified.[35]

90 As indicated above, the learned sentencing judge found that the CCTV footage suggested no premeditation of the assault to which the appellant pleaded guilty; rather, that the appellant was trying to appease two young aggressors who appeared to be showing considerable antipathy to Mr Nezirevic; that although the victim of the appellant's assault appeared to fall back, he also appeared to regain a standing position promptly; and that there appeared to have been no injury suffered as a result of the appellant's offending.

91 Her Honour said that in relation to the affray, the evidence did not establish that the appellant was the perpetrator of the serious assault on Mr Nezirevic. Her Honour said that it was not even possible to be specific as to the appellant's whereabouts with respect to this assault.

92 In those circumstances, it follows that - without more - it is not possible to say that the offence of affray that the appellant pleaded guilty to included carrying out the battery and assault pleaded by the respondent in his civil claim. For these reasons, the learned judge acted upon a wrong principle or took into account an irrelevant consideration. Accordingly, his Honour erred in law in the exercise of his discretion.

94 Ground 3: The learned judge erred in law in finding that the appellant's plea in the criminal proceeding amounted to an admission that the appellant participated, as a joint-tortfeasor, in the commission of the tort of assault on the respondent. The appellant's plea of guilty was to the assault of another person and to affray.

95 As discussed above, the learned judge held that by reason of the plea of guilty in the criminal proceeding 'it must follow that he has admitted being a joint tortfeasor with a person who actually struck the blows which resulted in the plaintiffs injury. He is therefore liable as if he had struck the blows.'[36]

96 The appellant submits that the learned judge therefore wrongly reasoned that it was futile to set aside the judgment, as the statement of claim could be simply amended to allege liability as a joint tortfeasor against the appellant.

97 The appellant submits that the plea of guilty in the criminal proceeding amounts only to a formal confession of the existence of the elements of the offence.[37] That may well be correct, but in the circumstances of this case it must carry with it the admission that the appellant was guilty of unlawful fighting in the street outside the bar. The Crown opening on the plea said that 'The accused man by his plea admits to being outside the club and being one of the group who was present when the various incidents occurred.' (My emphasis.)

98 Relevantly, in order to impute to the appellant liability as a joint tortfeasor, it would be necessary to establish that he was acting in a concerted action to a common end in the assault and battery of the respondent.[38]

99 The learned sentencing judge said that the evidence did not establish that the appellant was the perpetrator of the serious assault on Mr Nezirevic, and that it was not even possible to be specific as to the appellant's whereabouts with respect to this assault on Mr Nezirevic.

100 In my opinion, these observations make it clear that the plea of guilty to the affray did not necessarily amount to an admission by the appellant of the elements necessary for the appellant to be found a joint tortfeasor with those who did assault and batter the respondent. To establish joint tortfeasor liability, it would be necessary to establish that the appellant was acting in a concerted action to a common end. A plea of guilty to affray does not carry with it an admission that the appellant was acting in concert with the other people in the affray to a common end to assault and batter the respondent.

101 For these reasons, I find that the learned judge in the exercise of his discretion acted upon a wrong principle or took into account an irrelevant consideration. Accordingly, his Honour erred in law in the exercise of his discretion.

103 The other grounds were not pressed, or were covered by the grounds already dealt with.

Conclusion on application to set aside order dismissing the summons

104 For the reasons given, the order dismissing the summons should be set aside. In these circumstances, the Court may remit the matter to the County Court, or, if it elects to do so, decide the application for itself. In my opinion, it is appropriate for the Court to exercise the discretion provided under the Rules.

105 For the reasons discussed, I accept that the appellant has provided a satisfactory explanation of his failure to enter an appearance and to take steps to set aside the judgment, and that he has acted promptly since the judgment was brought to his notice.

106 The next question is whether the appellant has a defence on the merits[39] to the respondent's claim.

107 The writ names the respondent as the first defendant and Nebojsa Malenic as the second defendant. The Court was informed at the hearing of the appeal that the claim against Mr Malenic (who may have been the owner of the bar) has not been pursued, but that the plaintiff still maintains that there was a second assailant.

108 The statement of claim alleges that '[o]n or about 7 July 2007, the first and second named defendants battled [sic, battered] and assaulted the plaintiff in and outside the Red Star Bar & Restaurant at the corner of Foster and Pultrey [sic, Pultney] Street Dandenong.'[40] The statement of claim further alleges that '[a]s a result of the said battering and assault, the plaintiff has suffered injury.'

109 The particulars refer to total loss of sight of the right eye; concussion; rupture of the right ear; scarring and facial disfigurement; aggravation and acceleration of previous injuries to the neck, right shoulder and back; aggravation and acceleration of prior psychiatric condition; post traumatic stress disorder; depression; anxiety; insomnia; and pain and suffering.

110 The respondent (the plaintiff) alleges that as a result of the said assault and battery, the plaintiff has suffered injury, loss and damage. The statement of claim does not specify which injury or injuries were incurred as a result of the battery and assault inside the bar and which were incurred as a result of the battery and assault outside the bar. The distinction between the alleged battery and assault inside and outside the bar is important because of the undisputed defence on the merits to the alleged assault and battery inside the bar.

111 The statement of claim was served on 9 August 2011, before the concession was made by the respondent under cross-examination that the appellant had not assaulted the respondent in the bar as alleged by the complainant and the Crown (and by inference that the assault the respondent complained of was by some other person).

112 I accept, therefore, that the appellant has disclosed a defence on the merits to the alleged battery and assault inside the bar. The respondent has admitted that - contrary to his initial allegation - it was not the appellant who struck him in the bar. On the face of the statement of claim, it is not possible to identify which of the alleged injuries this part of the claim relates to.

113 The appellant has not expressly said what his defence to the alleged battery and assault outside the bar in Pultney Street is. He has pleaded guilty to affray which relates to the incident outside the bar in Pultney Street. He has, however, relied on the findings of the learned sentencing judge that the evidence before her did not establish that he was the perpetrator of the serious assault on Mr Nezirevic (the assault outside the bar) and that it was not even possible to be specific as to his whereabouts with respect to that assault (these matters were conceded by the Crown in its written opening).

114 The case against the appellant is also further complicated by the allegation that two people were involved in the battery and assault, but the case against the named second defendant, Mr Malenic, is not being pursued, although the respondent alleges there was another assailant.

115 In summary, the appellant has disclosed a defence on the merits to the alleged assault and battery inside the bar. As to the alleged assault and battery in the street outside the bar, the appellant has not been as forthcoming as perhaps he should. Nevertheless, the plaintiff has conflated in the statement of claim the incidents in and outside the bar, and not distinguished between the injuries suffered inside the bar and those outside in the street. For the reasons mentioned earlier, the sentencing observations do suggest a defence on the merits to the assault and battery alleged to have taken place in the street.

116 Even if the appellant has not shown a defence on the merits to the alleged assault and battery in the street outside the bar, the judgment cannot stand in any event as no distinction is drawn in the statement of claim between the injuries allegedly suffered as a result of the assault and battery in the street outside the bar and those allegedly suffered as a result of the prior assault in the bar. Moreover, the judgment amount is for all the injuries pleaded.

117 For these reasons, in my opinion, there is a real likelihood that it would be unjust to the appellant to allow the judgment to stand.[41] Valid criticisms were made by the respondent of the appellant's affidavit. It is true that the appellant does not squarely address all the unanswered questions that arise out of the Crown's openings and the learned sentencing judge's reasons. Nevertheless, for the reasons I have set out, in my view the appellant's circumstances are sufficient to have the judgment set aside and for him to be given leave to defend the proceeding.

118 Accordingly, I would allow the appeal, set aside the order below dismissing the application, and subject to the stay referred to below, order that the judgment be set aside and that the appellant have leave to enter an appearance and file a defence to the claim.

119 In the event of judgment being set aside the Court must consider awarding costs and providing for the giving of security that would adequately cover the prejudice to the respondent in having the judgment set aside.[42]

120 In my opinion it would be appropriate that the appellant pay the costs of and incidental to the application to set aside judgment entered in default of appearance and the costs thrown away by reason of judgment being entered including the costs of assessing the respondent's damages and the respondent's attempted enforcement of the judgment, such costs to be taxed on an indemnity basis in the absence of agreement.

121 On the issue of the provision of security, I would order that the appellant provide security of $20,000, in a form satisfactory to the registrar of the County Court, for the costs of the respondent in the proceedings in respect of the costs referred to in para 120 and in the event that any further costs are awarded in favour of the respondent as against the appellant.

122 To further avoid prejudice to the respondent, I would order that there be a stay on the order to set aside judgment until the security for costs is posted to the satisfaction of the registrar of the County Court.

123 In the event that the appellant does not post such security within 30 days of this order, unless the time is extended within 30 days by further order of the County Court, the order for setting aside judgment shall be vacated.

[1] [1974] VicRp 71; [1974] VR 596.

[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:

1. 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;
2. 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;

[4] See Rosing v Ben Shemesh [1960] VicRp 28; [1960] VR 173; Daly v Silley [1960] VicRp 57; [1960] VR 353.

[5] See Barnard v Kellett (1891) 7 WN (NSW) 100; Rosing v Ben Shemesh.

[6] Ground 2 of the notice of appeal is as follows:

The learned judge erred in law in holding that the appellant's plea of guilty in the criminal proceeding to the charges of assault of a person unknown and affray necessarily amounted to an admission of the tort of assault and battery of the plaintiff, which was the subject of the plaintiff's civil claim.

[7] Ground 3 of the notice of appeal is as follows:

The learned judge erred in law in finding that the appellant's plea in the criminal proceeding amounted to an admission that the appellant participated, as a joint-tortfeasor, in the commission of the tort of assault on the respondent. The appellant's plea of guilty was to the assault of another person and to affray.

[8] [2001] UKHL 10; [2002] 1 AC 285; [2001] 2 All ER 583; [2001] 2 Cr App R 216 (HL).

[9] [2007] EWHC 1836; [1997] 1 Cr App R 14, 17.

[11] [1996] HCA 38; (1996) 186 CLR 574, 580-1; applied in Baxter v Obacelo Pty Ltd [2001] HCA 66; (2001) 205 CLR 635, 646 [18] (Gleeson CJ, Callinan J).

[12] [1924] P 140, 159-60.

[13] Thompson v Australian Capital Television Pty Ltd [1996] HCA 38; (1996) 186 CLR 574, 580-1 (emphasis added).

[15] [1925] P 140.

[16] Gilbert v The Queen (2000) 201 CLR 414; Gillard v The Queen [2003] HCA 64; (2003) 219 CLR 1.

[17] Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596; Lau v Citic Australia Commodity Trading Pty Ltd [1999] VSCA 34.

[18] [1953] 1 QB 408, 416 (quoted with approval by the Full Court in Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596, 604).

[20] [1999] VSCA 34.

[21] Ibid [8] (citation in original).

[22] [1957] 1 WLR 317, 319.

[23] [1937] AC 473, 489.

[24] [1974] VicRp 71; [1974] VR 596, 603.

[25] Lau v Citic Australia Commodity Trading Pty Ltd [1999] VSCA 34, [16] (citations in original).

[26] Order of 4 July 2012 made by Nettle and Mandie JJA.

[27] See Nezirevic v Lubura [2012] VCC 408 (Judge Misso) (Reasons).

[28] [1974] VicRp 71; [1974] VR 596.

[31] (10th ed, 2011) 300-305, particularly 304.

[32] Australian Coal and Shale Employees Federation v The Commonwealth [1953] HCA 25; (1953) 94 CLR 621, 627 (Kitto J).

[33] [1936] HCA 40; (1936) 55 CLR 499.

[34] Ibid 505 (Dixon, Evatt and McTiernan JJ).

[35] Attorney General's Reference (No 3 of 1983) [1985] 1 All ER 501.

[37] See R v D'Orta-Ekenaike [1998] 2 VR 140, 146-147 (Winneke P; Brooking JA and Vincent AJA agreeing).

[38] C Sapideen and P Vines (eds), Fleming's The Law of Torts (10th ed, 2011) [11.20].

[39] As to the meaning of 'defence on the merits', see Bundock Bros v Bergl & Co (1987) 8 QLJ 106 (Griffith CJ, Cooper and Real JJ agreeing).

[41] Adopting the words of Jordan CJ in Vacuum Oil Pty Co Ltd v Stockdale (1942) SR (NSW) 239, 243-244 (cited with approval in Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596, 605).

[42] Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596.