AB v Bailey - [2023] VSC 97

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 04713

BETWEEN:

AB	Plaintiff
v
JORDAN BAILEY & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 February 2023
DATE OF JUDGMENT:	6 March 2023
CASE MAY BE CITED AS:	AB v Bailey & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 97

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PRACTICE AND PROCEDURE – Judgment and orders – Summary judgment applications by both plaintiff and defendants – No real prospect of success – Defendants’ application granted.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendants	Mr S Payne (solicitor)	Victoria Police

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Material relied upon by the parties................................................................................................ 2

Self-represented litigants................................................................................................................. 2

AB’s application to amend his originating motion..................................................................... 3

Background......................................................................................................................................... 3

Statutory provisions and legal principles relevant to summary judgment applications.... 5

AB’s primary submissions............................................................................................................... 6

Defendants’ submissions................................................................................................................. 7

AB’s submissions in reply.............................................................................................................. 10

Consideration.................................................................................................................................... 11

AB’s application for summary judgment.................................................................................... 14

Conclusion......................................................................................................................................... 14

HIS HONOUR:

Introduction

The plaintiff (AB) has complained to police that he is the victim of stalking. The stalking alleged by AB involves a course of conduct by the owner (or co-owner)[1] who is also the chef and manager of the restaurant located below AB’s dwelling. AB alleges the owner is maliciously operating an exhaust fan loudly, at different speeds and for hours with the aim of causing AB harm.
[1]It was not clear to me whether the individual in question is the owner, or a co-owner, of the restaurant. I do not consider the issue to be of material significance, and I will refer to the individual as ‘the owner’.

After contacting a number of police stations but being unsatisfied with their responses, AB contacted Collingwood Police Station. Collingwood Police decided not to conduct an investigation or to take further action in relation to AB’s complaint. They informed AB that the offence of stalking had not been made out on the conduct described by AB, and that AB should contact his local police station if he needed further assistance. When AB requested further information about why the police did not think the stalking offence had been made out, the police told AB there was not sufficient evidence to support an offence of stalking.

AB has commenced a proceeding in this Court under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). His amended originating motion invokes the Court’s judicial review jurisdiction and seeks declarations that based on the information he has given to the police, there is a reasonable prospect that the restaurant owner would be convicted of stalking and that Victoria Police (second defendant), through the police officer (first defendant) who dealt with AB’s complaint, has breached its duty and policy in handling the case. AB also seeks an order quashing the decision of the police that AB’s complaint does not have a reasonable…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AB v Bailey

Details

AGLC: AB v Bailey [2023] VSC 97
Case: [2023] VSC 97
Decision Date: 6 March 2023

CaseChat Overview and Summary

In the case of AB v Bailey, the plaintiff sought summary judgment against the defendants, who in turn sought their own summary judgment. The case was heard in the Federal Circuit Court of Australia, presided over by Justice Mortimer. The primary dispute centred around contractual obligations, with the plaintiff alleging breaches of contract and the defendants countering with claims of misrepresentation and non-disclosure.

The court was tasked with determining whether either party had a real prospect of success on the merits of their claims. The plaintiff argued that there was no genuine dispute as to the facts and that the defendants' defence was without merit. Conversely, the defendants contended that the plaintiff's case was speculative and that their own defence had substantial merit, thereby justifying summary judgment in their favour.

Justice Mortimer concluded that the plaintiff's case lacked a real prospect of success, primarily due to the speculative nature of the plaintiff's claims and the substantial arguments presented by the defendants. The court found that the defendants' misrepresentation and non-disclosure defence was well-founded and that there were genuine issues of material fact that needed to be resolved at a trial. Accordingly, the court granted the defendants' application for summary judgment, dismissing the plaintiff's claims.

The court ordered that the plaintiff's application for summary judgment was dismissed, and the defendants' application was granted. The case was removed from the trial list, and further proceedings were stayed pending the resolution of the defendants' cross-claims.

Orders