Supreme Court New South Wales Medium Neutral Citation: Prodanovich v Mukherjee [2013] NSWSC 1833 Hearing dates: 9 December 2013 Decision date: 09 December 2013 Jurisdiction: Common Law Before: Davies J Decision: 1. The Judgment in favour of the Second Defendant of 29 October 2013 is set aside. 2. The Plaintiff should pay the First Defendant's costs of the motion. Catchwords: JUDGMENTS - setting aside - judgment irregularly entered - consent judgment for second defendant - first defendant not consulted - judgment set aside Legislation Cited: Legal Profession Act 2004 Cases Cited: James Hardie & Co v Seltsam Pty Ltd (1998) 196 CLR 53 Category: Interlocutory applications Parties: Dragoljub Prodanovich (Plaintiff) Gopal Mukherjee (First Defendant) Dharmesh Shah (Second Defendant) Ozzie Health Pty Ltd (Third Defendant) Representation: Counsel: K Oldfield (Plaintiff) K Burke (First Defendant) L Hazelton (Second Defendant) Solicitors: Andriano & Associates (Plaintiff) TressCox Lawyers (First Defendant) Norton Rose Fulbright Australia (Second Defendant) File Number(s): 2013/31952 Judgment 1The Plaintiff commenced proceedings on 20 February 2013. They were claims for damages for negligence against two doctors and a company that provides medical services. 2On 29 October 2013, a judgment was entered, by consent, between the Plaintiff and the Second Defendant. The First Defendant, although his solicitors had filed a Notice of Appearance for him, was not consulted about the entry of judgment. 3The High Court in James Hardie & Co v Seltsam Pty Ltd (1998) 196 CLR 53, made clear at [62] and [63], that another party to the proceedings was entitled to be notified and, if necessary, heard on any application for a judgment that would preclude that party from pursuing the Defendant against whom judgment was to be entered in their favour. 4The Second Defendant does not oppose the judgment being set aside and, in fact, consents to that course. 5The Plaintiff acknowledges that he made an error in this regard and does not oppose the judgment being set aside. The Plaintiff says that it is not in a position to consent to the judgment being set aside because, as an affidavit from the solicitor makes clear, the legal advisers for the Plaintiff formed the view, after the proceedings commenced, that they did not have reasonable prospects of success against the Second Defendant. 6The lawyers felt, therefore, that they were precluded by s 345 Legal Profession Act 2004 from being able to consent to the judgment being set aside, because that would be maintaining the proceedings in the face of their opinion that there would were no reasonable prospects of success. That may be thought to be a very narrow and, in some respect, unsatisfactory reading of Legal Profession Act, if it was to prevent a consent to set aside a judgment that was irregularly entered. 7In saying that I am not being critical of the solicitors for the Plaintiff, but only suggesting that a wider view of that section is probably more appropriate. There is, therefore, no doubt that the judgment ought to be set aside and the only issue that has seriously engaged me is the issue of costs. 8Initially the First Defendant sought in his Motion that costs be costs in the cause. But by a letter of 13 November 2013, it notified that if the Plaintiff did not consent to the setting aside of the judgment, the First Defendant would seek costs of the Motion. 9In an affidavit filed on 28 November, the solicitor for the Plaintiff said in paragraph 22: At no time since 19 July, 2013, have I resiled from my view that the Plaintiff does not have reasonable prospects of success against the second Defendant in these proceedings. As a result I am not able to consent on behalf of the Plaintiff to the verdict in favour of the second Defendant being set aside. 10There is no correspondence suggesting that the Plaintiff's lawyers felt unable to do so by reason of the provisions of the Legal Profession Act. But even if paragraph 22 could be understood in that way, the lawyers were always in the position of being able to say that they did not oppose the order being made. In that way they put the First Defendant to the costs of bringing the Motion. 11I think in the circumstances the judgment and the error was brought by about the Plaintiff in the first instance and the Plaintiff should, therefore, pay the costs of the Motion. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2013