Angeleska v State of Victoria and ors (No.5)
[2017] VSC 238
•1 May 2017 (Reasons 5 May 2017)
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2011 06392
| SNEZANA ANGELESKA (known as SLAVESKA) | Plaintiff |
| v | |
| THE STATE OF VICTORIA AND OTHERS | Defendants |
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JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 1 May 2017 |
DATE OF JUDGMENT: | 1 May 2017 (Reasons 5 May 2017) |
CASE MAY BE CITED AS: | Angeleska v State of Victoria & ors (No.5) |
MEDIUM NEUTRAL CITATION: | [2017] VSC 238 |
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JUDICIAL REVIEW AND APPEALS – Appeal from an Associate Judge - Application to appeal decision of an Associate Justice refusing leave to amend statement of claim – Application to appeal order of an Associate Justice in relation to gross costs order for interlocutory costs – Whether Associate Justice failed to take into consideration relevant law and evidence - No error in fact or law – Appeal dismissed – Orders of Associate Justice varied.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | Mr R Gipp | Victorian Government Solicitor’s Office |
HIS HONOUR:
Introduction
These written reasons supplement the viva voce reasons I gave on 1 May 2017 at the conclusion of the hearing.
This is another decision which has its genesis in a claim made by Mr Lupco Slaveski as a result of a series of interactions (or, more properly described, confrontations) with police officers in the period between 2000 and 2007.[1]
[1]Slaveski v Victoria [2010] VSC 441 (‘Slaveski’).
Ms Angeleska is the wife of Mr Slaveski; in 2011 she also issued a writ alleging negligence and wrongdoing on the part of multiple police officers and the State of Victoria. The protracted interlocutory history of this case is most unfortunate – indeed without intervention, it is taking on a Dickensian ‘Bleak House’ perspective: the proceeding has already found its way to the Court of Appeal[2] and to the High Court.[3]
[2][2015] VSCA 140.
[3][2016] HCASL 5.
This judgment concerns an appeal from a ruling of Lansdowne AsJ refusing to permit several amendments to Ms Angeleska’s statement of claim. Her Honour also ordered that Ms Angeleska pay $19,000 in relation to an interlocutory costs award made against her in 2013 – in default of which, the proceeding is stayed.
For the reasons that follow I am satisfied that no error of fact or law has been disclosed in relation to the decision of the Associate Justice. To the contrary, both in detail and conclusion, each determination is palpably correct. Indeed, I am firmly of the view that, given the history of this litigation and consistent with the provisions of the Civil Procedure Act 2010 (Vic) (CPA), the Court must now take steps to either terminate the proceeding or have it heard as soon as is practicable. To that extent, I propose to vary the order made by her Honour and make further orders concerning the disposition of the case.
The applications and the orders of the Associate Justice
I do not propose to set out the background of either Ms Angeleska’s application for leave to amend her statement of claim or the gross costs order made by the Associate Justice. This is comprehensively set out by the Associate Justice at [3] - [19] of her Honour’s reasons.[4]
[4]Angeleska v State of Victoria (No.3) [2016] VSC 568 (‘Angeleska (No.3)’).
Ms Angeleska issued a summons on 3 February 2016 seeking to amend her statement of claim. At the hearing before the Associate Justice the amendments sought to paragraphs [14], [15] and [20] were opposed by the defendants.[5]
[5]These paragraphs are set out at [12] below.
On 5 February 2016, the defendants issued a summons seeking payment of a previous interlocutory order made in the trial division with a gross amount of costs fixed at $19,000.
After hearings on 4 March 2016 and 18 November 2016, the Associate Justice made the following orders:
1.The plaintiff have leave to file and serve a substituted statement of claim by 2 December 2016, which is to be in the form of the proposed further amended statement of claim dated 30 November 2015, with paragraphs 14, 15 and 20 deleted and consequential amendments made to the numbering and content of other paragraphs and the schedule of defendants.
2.By 16 December 2016, and pursuant to r 63.07(2)(c) of the Supreme Court (General Civil Procedure) Rules 2015, the plaintiff pay to the first defendant the defendant’s costs the subject of the costs order made by this Court on 18 November 2013, such costs assessed on a gross sum basis in the amount of $19,000.
3.In default of compliance with Order 2, and pursuant to r 63.03(3)(a) of the Supreme Court (General Civil Procedure) Rules 2015, the proceeding against the defendants be stayed until the plaintiff pays the gross sum cost amount ordered in the defendant’s favour.
Orders were also made in relation to Ms Angeleska paying the defendants’ costs of summonses filed on 3 February 2016 and 5 February 2016.
The end result of her Honour’s orders in relation to the amendments to the pleadings is that, if the amended case proceeds to trial, it will involve consideration of four discrete allegations regarding Ms Angeleska’s interaction with police:[6]
[6]Angeleska (No.3) [2016] VSC 568, [10], [11].
(a) on 5 September 2007 involving officer Bateman;
(b) on 2 June 2010 involving officer Busic;
(c) on 1 July 2010 involving officer Busic; and
(d) on 6 March 2013 involving officer Davies.
The refusal to grant leave to amend
The only paragraphs of the proposed amended statement of claim which were in dispute were paragraphs [14], [15] and [20], which read as follows:
14.The fourth, fifth and sixth defendant in the course of their duty and in employment of the first defendant failed to investigate the threatening phone call/s the plaintiff and her Family were receiving and failed to exercise their duty of care owed to the plaintiff.
15.As a result of the said negligence and failure to investigate the complaint, the plaintiff suffered immediate pain and fear that the threat will not be stopped and will be carried out, and suffered damage and loss and personal injuries.
PARTICULARS
The first complaint was made orally and in writing on or about 26 September 2008, and a copy of the CD Recording was sent to the above defendants. A further complaint and a copy of the recording was again sent to the fourth and sixth defendant in March 2009 via registered post and numerous conversations took place from September 2008 until March 2009.
The defendants failed to take reasonable care of the plaintiff and failed to investigate the threats made to the plaintiff and her family. As a result the plaintiff apprehended imminent harmful and/or offensive contact, and consequently suffered injury, loss and damage.
….20.The first Defendant neglected to help the plaintiff and her husband, and the plaintiff suffered panic attack, and feared that she will be killed.
The defendants referred to in [14] and [15] are Luke Cornelius, Andrew Gutske and Greg Mason - each a member of the Victorian police force at the relevant times. The first defendant, referred to in [20], is the State of Victoria.
In relation to paragraphs [14] and [15], her Honour concluded that there was no basis for an asserted duty of care in the pleaded circumstances. Having reviewed[7] in considerable detail a series of decisions of single judges and the Court of Appeal in this State and in other States,[8] and in the United Kingdom,[9] her Honour concluded:
Gesah and Taha are, however, examples of the application of the principles as stated by Kyrou J and reiterated by Beach J before trial. Those decisions endorse the legal principles which Kyrou J applied, in particular that in the absence of exceptional circumstances a police officer is not under a duty owed to an individual to investigate a complaint by that individual of criminal action against him or her. In each of those cases, Beach J held that summary judgment for the defendant police officers should be given in relation to claims of alleged failure to investigate because no such duty was shown on the pleaded facts. In Taha, he did allow the plaintiff to re-plead as it was possible that her case could be brought within the line of authority relating to the existence of a duty to take reasonable care in execution of a particular operation. Gesah and Taha lend powerful support to the defendants’ case that, if proposed paragraphs 14 and 15 were allowed to be pleaded, the claim would necessarily fail on a summary judgment application because it has no real prospect of success, and so leave should not be granted.
In my view, on the basis of the principles identified in Slaveski, Gesah and Taha, leave should not be given for the inclusion of proposed paragraphs 14 and 15. I accept the submission of the defendants in their Further Submissions that there is nothing pleaded in those paragraphs or elsewhere to show any exceptional circumstance that may take the plaintiff’s claim out of the ordinary rule that police officers are not under a duty to investigate a particular allegation of criminal conduct.
Indeed, the pleaded case is seriously lacking in relevant facts. The date of the call is identified, but not its contents. Nothing is pleaded as to whether the caller, or his or her whereabouts, could have been identified. The plaintiff does not plead what she contends these defendants could have and should have done, but did not, in response to her complaint. ‘Numerous conversations’ are said to have occurred, but their content, if relevant, the dates on which they occurred and between whom they occurred are not pleaded. The defendants are identified, but no facts are pleaded to show, if this is the plaintiff’s case, that those police officers as members of the Ethical Standards Division were under a duty to investigate that may not have applied to other police officers. In short, there are no facts pleaded which could show exceptional circumstances by reason of which a duty on these defendants to investigate this call in respect of this plaintiff might have existed.[10]
[7]Ibid [35]-[58].
[8]E.g. Slaveski [2010] VSC 441; Taha v Shaq Industries Pty Ltd [2012] VSC 30; Gesah v Ross [2013] VSC 165; Victoria v Richards (2010) 27 VR 343; New South Wales v Spearpoint [2009] NSWCA 233.
[9]Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225.
[10]Angeleska (No.3) [2016] VSC 568, [59] - [61].
Then, in relation to the allegation of the breach of duty contained in proposed paragraph [20], her Honour concluded:
There are two difficulties with the claim as pleaded in proposed paragraph 20. The first is that the plaintiff seeks to bring the claim directly against the State of Victoria. The defendants submit that the State cannot be liable directly in tort. They rely on Richards v State of Victoria, a decision of the Full Court of the Supreme Court, for that proposition. That case was an appeal against a jury verdict that found a teacher had been negligent in failing to take steps to prevent a fight amongst pupils which left a pupil with serious injuries. The State of Victoria was not sued as being directly liable, but as being vicariously liable for the acts of its employee, the teacher. The Court, however, made passing reference to direct liability noting that:
(i) in proceedings in tort under the Crown Proceedings Act 1958, this Court has already held that the liability of the Crown is vicarious only, in the sense that liability does not arise unless it is shown that there has been a breach by a servant of the Crown of a duty owed by that servant to the plaintiff: Hall v Whatmore [1961] VR 225.
This principle is reflected in s 23(1)(b) of the Crown Proceedings Act 1958 which provides for the Crown to be vicariously liable for the torts of its servants or agents or an independent contractor in like manner as a subject is liable for the torts of his or her servant, agent or independent contractor.
The plaintiff does not dispute that this is the case, but says that she does not know the name of the person who answered her 000 call, or the police officer who later rang back. In court she said that it is those persons against whom she wishes to bring the claim on the basis that they, or one of them, did not provide appropriate assistance. In her affidavit in support she requests that the defendants supply her with the name of the police officer who rang back some time later.
If the plaintiff wishes to pursue a claim against either the person who first answered her call or the police officer who later returned the call, or both, the first step is to identify those persons by means available to her (such as, potentially, freedom of information request or pre-action discovery). However, for the same reasons as set out above in relation to the claim sought to be brought by proposed paragraphs 14 and 15, it is doubtful that either of the persons involved in answering and then following up the call, even if identified, would have had in law a relevant duty owed to the plaintiff to provide assistance in any particular way, which if breached could result in liability.
I will refuse leave to include proposed paragraph 20.[11]
[11]Ibid [65] – [69].
Ms Angeleska argued a number of points in relation to alleged errors of the Associate Justice. None are sustainable. There was no denial of procedural fairness: her Honour’s reasons indicate that she gave full consideration to the arguments raised by Ms Angeleska. Jurisdictional error does not arise in an appeal such as this. Finally, I am not satisfied that her Honour conflated any part of Mr Slaveski’s claim with that of Ms Angeleska’s. It is clear that the purpose of her Honour’s reference to the decision in Slaveski was to consider the principles stated by Kyrou J and their application to Ms Angeleska’s claim.
In the result, the only issue is whether there was an error (legal, factual or discretionary) by her Honour in determining that the relevant parts of the putative statement of claim did not disclose a viable cause of action[12] and therefore granting the amendment was futile. There is no such error. I agree entirely with her Honour’s conclusion and reasoning (which I have set out) on each of the proposed amendments. It is clearly correct and requires no further analysis other than its adoption.
[12]See Weber v Deakin University [2016] VSC 147, [15] - [25]; Wilson v Building Commission of Victoria [2015] VSC 629.
This part of the appeal should be dismissed.
The gross costs order in relation to interlocutory costs
If her Honour’s orders stand then the proceeding is stayed until Ms Angeleska pays an amount of $19,000, as a gross costs order in favour of the defendants in relation to a previous interlocutory application.[13]
[13]Angeleska (No.3) [2016] VSC 568, [77] - [80].
For the following reasons I am satisfied that no error has been demonstrated in her Honour’s orders on this issue.
I set out the relevant parts of the Supreme Court (General Civil Procedure) Rules2015 (Vic) (the Rules) which governed this application:
Rule 63.03(3) – Time for costs order and payment
(3)Where the Court makes an interlocutory order for costs, the Court may then or thereafter order that if the party liable to pay the costs fails to do so—
(a)if that party is the plaintiff, the proceeding shall be stayed or dismissed;
(b)if that party is a defendant, the defendant’s defence shall be struck out.
Rule 63.07 - Taxed or other costs provision
(1)Subject to this Order, where by or under these Rules or any order of the Court costs are to be paid to a party, that party shall be entitled to taxed costs.
(2)Where the Court orders that costs be paid to a party, the Court may then or thereafter order that as to the whole or any part of the costs specified in the order, instead of taxed costs, that party shall be entitled to—
(a) a portion specified in the order of taxed costs;
(b) taxed costs from or up to a stage of the proceeding specified in the order;
(c) a gross sum specified in the order instead of taxed costs;
(d) a sum in respect of costs to be determined in such manner as the Court directs.
In Angeleska (No.3), her Honour conducted a thorough analysis of:
(a) her power to make a gross costs order and, if persuaded to do so, the amount to be fixed;
(b) whether it could be the subject of an order for immediate payment; and
(c) whether the proceeding should be stayed until payment of the costs order.
A gross costs order avoids the need for a taxation of relevant claims for costs. Her Honour was satisfied that it was, subject to one qualification, appropriate to make a gross costs order in the sum of $19,000 in respect of the costs order of 18 November 2013. Her Honour examined the evidence as to the quantum of the costs and the need for immediate payment and concluded:
After taking all these matters into account, on balance, I consider that if an order for immediate taxation of the interlocutory costs would be appropriate, then the gross costs order that the defendants seek is an appropriate alternative. As noted above, I will allow further submissions on the appropriateness or otherwise of an order allowing taxation of the interlocutory costs after delivery of these reasons and prior to making orders.[14]
[14]Ibid [128].
There was no error in this conclusion.
I pause here to note that the sum of $19,000 was significantly less than the amount which it was likely that a bill of costs would have sustained at taxation.
Her Honour then, again after a comprehensive analysis, held that it was appropriate to order immediate payment of the $19,000:
Given the complexity of the proceeding to date, with the attendant cost and delay for the parties, and burden on the Court, I consider that if it is appropriate for the plaintiff to be required to meet her past costs liability now, it should be as the price of continuing with her proceeding at all. For these reasons, I think the more appropriate avenue would be a stay. I now turn to that issue.[15]
[15]Ibid [146].
There was no error in this conclusion.
Her Honour then considered whether to order a stay of the proceeding pending payment of that amount. After examining a number of relevant decisions she concluded:
Nevertheless, I do not think that it would be unjust to the plaintiff to both set the sum of costs by a gross costs order and require payment prior to the proceeding continuing in the one application, without an interval of time being afforded for payment to judge her attitude to payment. This is for two reasons. First, the plaintiff has been aware at least from 4 December 2015 of the amount of costs sought, and has on the evidence before me made no attempt to pay them, or put forward any proposal for part or instalment payment. Time for her to absorb the amount she is required to pay is not necessary. Secondly, is in the nature of a stay that it affords time for payment, if that is what she is willing and able to do.
For all these reasons, I consider that, if a gross costs order for the past interlocutory costs should be made notwithstanding the presumption that interlocutory costs are not taxable prior to the end of the proceeding, then the plaintiff should be required to pay those costs before the proceeding continues.[16]
[16]Ibid [165] – [166].
Subsequent to her Honour’s decision, the Court of Appeal delivered its reasons in Rozenblit v Vainer,[17] in which it examined the circumstances in which an order should be made under r 63.03(3). In that case, an Associate Justice had made an order staying a proceeding and ordering that the costs be taxed immediately. The question that arose was the engagement of the rule in the context of the CPA. Whelan and McLeish JJA said as follows:
The above analysis is consistent with the other relevant development since Gao v Zhang was decided: the enactment of the CPA. As is well-known, the Court is required, when exercising its powers under the Rules, to seek to give effect to the overarching purpose of the CPA, being ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute’. The grant of a stay represents the extreme case where the dispute is not to be resolved at all pending the meeting of a costs order. Consistently with the approach in Gao v Zhang, that circumstance can only arise when there is no other fair and practical way of ensuring justice between the parties.[18]
[17][2017] VSCA 52.
[18]Ibid [62].
After surveying the authorities their Honours concluded as follows:
In summary, then, the power to order a stay under r 63.03(3) is to be exercised according to the following principles:
(a)a stay for failure to satisfy an order for costs in an interlocutory matter may only be ordered if it is the only fair and practical way of facilitating the just, efficient, timely and cost-effective resolution of the proceeding;
(b)justice between the parties requires regard to be had to the interests of the party in whose favour the costs were ordered to be paid;
(c)the parties’ conduct of the proceeding to date, and in particular the reasons for which costs were ordered to be taxed immediately, are relevant to the exercise of the power;
(d)a stay should not be ordered unless the conduct of the party in default warrants the condemnation inherent in such an order;
(e)the power is not to be used simply as a means of enforcing payment of the costs in question unless there are grounds for concluding that the party in default is recalcitrant and is capable of remedying the default.[19]
[19]Ibid [67].
Returning to this case, her Honour’s reasons demonstrate that she was alive to these principles.[20] Her Honour examined carefully the conduct of Ms Angeleska[21] and the consequences of such an order, and took the view that, in effect, there was a tactical purpose behind Mrs Angeleska’s interlocutory applications – namely, to try and negotiate a settlement of her liability for costs in Mr Slaveski’s case.[22] Her Honour was also concerned that the defendants had been significantly prejudiced by this conduct in terms of cost, strain and inconvenience.[23]
[20]Angeleska (No.3) [2016] VSC 568, [147]-[150], [152]-[168].
[21]Ibid [102]-[114].
[22]Ibid [153].
[23]Ibid [154]-[166].
Her Honour expressly considered that the case may result in the proceeding coming to an end.[24] However, her Honour held that aspects ‘of the plaintiff’s conduct fall for condemnation, to the extent of justifying such a draconian order’.[25] Critically, she also held:
However, where the reason for occasioning unnecessary cost and delay to the other party in one proceeding is to secure the release of an obligation owed to that party in another proceeding, the conduct verges on abuse of process. That is my view of the plaintiff’s conduct in refusing to withdraw the contested paragraphs. It is a serious reason for the exercise of the power to grant a stay, and conduct that justifies the defendants seeking that the plaintiff pay at least some of her existing cost liability to them in this proceeding, before being permitted to continue it. [26]
[24]Ibid [151].
[25]Ibid [153].
[26]Ibid [153].
Her Honour also considered the history of the case:
Thus, viewed overall, the defendants have been required to expend cost on three occasions to arrive at a statement of claim that is arguable. These costs have included the costs of analysis of pleadings drawn by an unrepresented person and ensuring the plaintiff, as an unrepresented party, fully understands the objections taken. If the proceeding continues, the defendants will be required to expend further cost to defend the remaining claims, which may also be inflated by the fact that the plaintiff is not represented. The time taken to arrive at this point, coupled with the delay in commencement of the proceeding, means that if the trial takes place at the earliest possible time, early next year, almost ten years will have elapsed from the earliest surviving claim. [27]
[27]Ibid [156].
Accordingly it was appropriate to order a stay of the proceeding requiring payment of $19,000.
The reservation I referred to at [23] and expressed by her Honour, was whether she should only make a gross costs order, if satisfied that it was appropriate to make an order for immediate taxation:
As set out earlier, unless persuaded otherwise by further submission, I do not think it appropriate to make a gross costs order unless it would also have been appropriate to order immediate taxation. Had that course been taken, there would have been a further interval of time within which the amount of the costs would be fixed on taxation. No such interval of time is proposed in relation to a gross costs order.
Conclusion
For these reasons, if on further submission I consider that it would have been appropriate to allow taxation of the interlocutory costs I ordered in November 2013 prior to the finalisation of the proceeding, I will accede to the defendants’ application that those costs be fixed by the gross costs order that they seek, rather than taxed, and will stay the proceeding until those costs are paid. [28]
[28]Ibid [164] – [167].
Having invited and received further submissions, her Honour, in Angeleska v State of Victoria (No.4) considered that the provisions of the CPA trumped any apparent inconsistency in the Rules and permitted her to make the order she had foreshadowed and that it was appropriate to do so.[29] Her Honour reasoned as follows:
[29][2016] VSC 720 (‘Angeleska (No.4)’).
My analysis of the interaction between the Supreme Court Act, the Rules and s 65C of the CPA is as follows.
Pursuant to s 8(1) of the CPA, the Court must seek to give effect to the overarching purpose whenever it makes a costs order. Section 8(2) of the CPA provides that that obligation overrides any other Act, other than the Charter. Section 24 of the Supreme Court Act also provides that the discretion it confers to order costs is subject to any other Act. It follows that the determining principle in the making of any costs order, including a gross costs order in respect of interlocutory costs, is not the content of the Rules, and their interrelationship, but the overarching purpose of the CPA. To that extent, the CPA overrides the costs provisions in the Supreme Court Act and the Rules if the exercise of a costs power under that Act or the Rules would be inconsistent with the CPA.
…
Accordingly, on reflection and on consideration of the Defendants’ Further Submissions I consider that they are correct. It is not necessary that the conditions for an order that interlocutory costs be taxed immediately be found before a gross costs order can be made in respect of those costs, because the determining principle is whether the order will further the overarching purpose of the CPA, having regard to the mandatory and relevant optional factors for consideration enumerated in s 9. That conclusion departs from the preliminary view I expressed in the Reasons. To the extent the interpretation that I adopted in my preliminary view might have been suggested by the Rules, that interpretation is overtaken by the CPA.[30]
[30]Angeleska (No 4) [2016] VSC 720, [17]-[18], [20].
Her Honour then, having determined that she had the power to make a gross costs order in relation to interlocutory costs prior to the conclusion of the proceeding, held that it was appropriate to make such an order in the circumstances of this case:
The factor listed as s 9(1)(b) requires the Court to consider the public interest in the early settlement of disputes by agreement between the parties. The plaintiff has emphasised throughout the determination of these applications that she is keen to settle the costs issues between her and the defendants. However, I found that her conduct in that regard verged on abuse of process, because in her endeavour to secure her release from a substantial costs obligation owed to the defendants and imposed on her as litigation guardian in her husband’s proceeding she occasioned unnecessary cost and delay to the defendants in this proceeding. For this reason, I consider that it is just to grant the application for a gross costs order, the factor I am required to consider by s 9(1)(a). I also concluded in the Reasons in my consideration of the stay aspect of the defendants’ application that it was just to order a stay, given this aspect of the plaintiff’s conduct.
I also considered in the Reasons relevant optional factors stipulated in s 9(2) as follows. I considered the factors listed in paragraphs (b), (c), and (e) principally in relation to the plaintiff’s failure to accept the defendants’ legitimate objections to paragraphs 14, 15 and 20 of her Proposed Further Amended Statement of Claim. In my view, this failure was a breach by her of the overarching obligations imposed by ss 22, 23 and 25 of the CPA. This failure related in turn to my consideration of the defendants’ application for a gross costs order. I also took into account the extent to which the plaintiff was responsible for delay in the proceeding, the factor identified in paragraph (d). I took into account the prejudice the plaintiff would suffer if the gross costs order was made, in particular the absence of expert evidence and that the assessment provided by a taxation would not occur, and also took into account the potential prejudice to her if the stay was granted, and she was unable to pay the costs. Prejudice is the factor identified in paragraph (f). Finally, I took into account that the plaintiff is not legally represented, the factor in paragraph (h).
The combination of these findings means that the making of a gross costs order would further the overarching purpose of the CPA, and indeed to refuse it would not.[31]
[31]Ibid [28] – [30].
Her Honour then explained her reasons for making an order for immediate payment, rather than awaiting the end of the proceeding, and taxation:
Three particular factors have been identified as reasons why the demands of justice may require departure from the usual rule that interlocutory costs are to be taxed only at the end of the proceeding- unsatisfactory conduct of the party liable to pay the costs; the likely delay before the completion of the proceeding; and that the interlocutory application concerns or concerned a separate or discrete issue. In my view, all three here apply. I discussed the conduct of the plaintiff in the proceeding at length in the Reasons. I concluded that, contrary to the submission of the defendants, the plaintiff was not responsible for substantial components of the very lengthy delay in the proceeding to date, but nevertheless she was responsible for some undue delay and consequent cost in the period since the judgment on appeal and the current applications. I also found that the plaintiff had a substantial motive for future delay.
I did not discuss the third factor identified above in the Reasons, as it was not then relevant. The defendants submit that it applies because (with my emphasis):
The summons resulting in an order for costs on 18 November 2013 involved the dismissal of separate and distinct claims. The causes of action that remain to be determined have no relationship with any of the claims that have been dismissed.
I think the final sentence puts the position too high. It is true that many of the plaintiff’s proposed claims did not survive the combined effect of my earlier judgment and the judgment of the Court of Appeal on appeal. However, some did survive. I concluded in the Reasons that four of the earlier claims survived my judgment and that of the Court of Appeal, although only one survived without re-pleading. The plaintiff has now added further claims, with the consent of the defendants. All of the plaintiff’s past and current claims in this proceeding do or did relate to alleged unlawful conduct by the police towards her, that began with police action directed towards her husband. For that reasons, I do not think it is accurate to say that the surviving claims have ‘no’ relationship with the dismissed claims. However, the survival of only one of the original 17 of the plaintiff’s claims does mean that what remains of the proceeding is at least formulated differently and in some instances different in substance to the proceeding before my earlier judgment. To this extent, the earlier costs largely relate to discrete and concluded issues.[32]
[32]Ibid [32] – [34].
Ms Angeleska argued that her Honour did not give her a proper opportunity to make submissions on the question that she had reserved and determined in Angeleska (No.4). I accept that her Honour did not recall the parties to court, but there had been a full discussion of the issue at the hearing, as is reflected by her Honour’s reasons in Angeleska (No.3). Her Honour sought, and was provided with, further written submissions by both sides. Ms Angeleska, did not identify any relevant matter that she was prevented from placing before the Associate Justice. There was no denial of procedural fairness.
In my view, her Honour was correct in both her application of the CPA and in determining that this was a case in which it was appropriate to make a gross costs award in relation to an interlocutory order.
The conduct of Ms Angeleska and the prosecution of her case was, as her Honour ultimately determined, inconsistent with the aims of the CPA. It was entirely within her Honour’s discretion to make the orders that she did and no error has been shown in the exercise of that discretion.
The end result of both rulings, is that her Honour was satisfied that it was appropriate to:
(a) make a gross costs order in the sum of $19,000;
(b) make an order for immediate payment; and
(c) stay the proceeding until payment of the costs award was made.
Subject to my observations at [44]–[54] below – each of these findings was not only open to her Honour, but patently correct in the circumstances.
Further steps in this proceeding
At the commencement of the hearing I indicated that in the event that the appeal was unsuccessful I would contemplate varying the orders so that Ms Angeleska had the opportunity to either pay the gross award of costs and proceed to trial or alternatively, that her claim be dismissed. Ms Angeleska opposed the making of a summary dismissal order on the same basis that she opposed the making of the stay order.
In my view (and allowing for the fact that this interlocutory dispute may well find its way up the appellate chain), it is necessary at a trial level to bring this case to a conclusion – be it by trial of Ms Angeleska’s pleaded case or by summary dismissal in the event of her failure to pay the sum of $19,000 in relation to interlocutory costs.
Section 7(1) of the CPA requires the Court to facilitate ‘the just, efficient, timely and costs-effective resolution of the real issues in dispute’ in a civil proceeding. In making such orders the Court has regard to a number of objects set out in s 9(1) – which include:
(a) the just determination of the civil proceeding;
(b)the public interest in the early settlement of disputes by agreement between parties;
(c) the efficient conduct of the business of the court;
(d) the efficient use of judicial and administrative resources;
(e)minimising any delay between the commencement of a civil proceeding and its listing for trial beyond that reasonably required for any interlocutory steps that are necessary for—
(i)the fair and just determination of the real issues in dispute; and
(ii) the preparation of the case for trial;
(f) the timely determination of the civil proceeding;
(g) dealing with a civil proceeding in a manner proportionate to—
(i) the complexity or importance of the issues in dispute; and
(ii) the amount in dispute.
Rule 77.06.9 reads as follows:
Powers of Judge of the Court hearing appeal
(1)On an appeal referred to in Rule 77.06, a Judge of the Court shall have all the powers of the Court constituted by an Associate Judge.
(2)The Judge of the Court shall have power to—
(a)receive further evidence upon questions of fact, whether by oral examination in court, by affidavit, or by deposition taken before an examiner;
(b)draw inferences of fact;
(c)give any judgment and make any order which ought to have been given or made; and
(d)make any further or other order as the case may require.
(3)The powers of a Judge of the Court under this Rule may be exercised notwithstanding—
(a)that no notice of appeal has been given in respect of any particular part of the judgment or order of the Associate Judge which is the subject of the appeal or by any particular party to the proceeding before the Associate Judge; or
(b)that any ground for allowing the appeal or for affirming or varying the judgment or order of the Associate Judge is not specified in the notice of appeal.
Sub rule (2) enables this Court to make an order which I consider ought to have been made by the Associate Justice.
An order made under r 63.03 must take into account the objects set out in s 9 of the CPA. Sub rule (3)(a) enables a court to either stay or dismiss a proceeding. Of course, it was within the Associate Justice’s power to make an order staying the proceeding – as it was for her to contemplate dismissal of the proceeding – if she had been asked to do so.
With respect to the Associate Justice, I do not think that an order staying this proceeding sufficiently recognises the dictates of the CPA. I make this observation noting that this was the order sought by the defendants. However if that order stands then Ms Angeleska can, at some indeterminate point of time in the future, pay the $19,000 and reactivate the claim. That is unjust to the defendants – insofar as the sword of Damocles hangs over their collective heads for an indefinite period. A number of the defendants are serving police officers and should have these allegations dealt with as soon as practicable.
The reasons given by the Associate Justice in relation to Ms Angeleska’s conduct of the case and her motivation for its continuation support the making of such an order. I am conscious, as was the Associate Justice in relation to the stay, that such an order, if made on terms, has the potential to terminate the litigation. Notwithstanding this, I am satisfied that the interests of justice require the making of the order.
In my view, the order for a stay in the circumstances of this case is inconsistent with the modern approach to litigation.
The appropriate order should be that Ms Angeleska’s proceeding be summarily dismissed in the event that she fails to pay the gross costs award of $19,000 in relation to interlocutory costs.
It would be unfair to Ms Angeleska to make a simple substitution of summary judgment for a stay and deny her the opportunity to pay the costs order. Rather, Ms Angeleska should have a period of three months in which to make the payment. If she fails to do so, then her claim will be dismissed.
In the event that Ms Angeleska makes such payment within time, it is critical that the case be fixed for trial and no more time is wasted on interlocutory processes. The case will be listed for trial on 30 January 2018. Upon Ms Angeleska tendering proof of the payment of the sum of $19,000, a directions hearing will be conducted on 8 September 2017, by which time each party should be prepared to exchange a list of documents. There will be no orders as to the provision of witness statements and if any medical or expert opinions are sought to be relied upon under either Order 33 or Order 44, there must be strict compliance with the Rules.
Orders
I will order that:
1) The appeal be dismissed.
2) Pursuant to r 77.06.9(2)(b) and (c) of the Rules, orders (2) and (3) of Associate Justice Lansdowne of 18 November 2016 be amended to read as follows:
(2) By 7 August 2017, and pursuant to r 63.07(2)(c) of the Rules, the plaintiff pay to the first defendant the defendants’ costs the subject of the costs order made by this Court on 18 November 2013, such costs assessed on a gross sum costs basis in the amount of $19,000.
(3) In default of compliance with Order 2, and pursuant to r 63.03(3)(a) of the Rules, the proceeding against the defendants be dismissed.
3) In the event that the plaintiff complies with amended order (2):
(i) The proceeding is fixed for trial on Tuesday, 30 January 2018;
(ii) By Friday, 1 September 2017, each party file a list of discoverable documents;
(iii) A further directions hearing be listed on Friday, 8 September 2017.
4) The plaintiff pay the defendants’ costs of this appeal.
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