Camberfield Pty Ltd v Foustanis - [2003] VSC 313

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6932 of 1999

CAMBERFIELD PTY LTD (ACN 001 045 355)	Plaintiff
v
PARASKEVI FOUSTANIS AND OTHERS	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 AUGUST 2003
DATE OF JUDGMENT:	29 AUGUST 2003
CASE MAY BE CITED AS:	CAMBERFIELD PTY LTD v PARASKEVI FOUSTANIS
MEDIUM NEUTRAL CITATION:	[2003] VSC 313

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Application for summary judgments in favour of defendants – Whether claim is "absolutely hopeless".

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Cawthorn	Valos Black & Associates
For the Eighth Defendant	Mr M. Bevan-John	John Dimitropoulos
For the Ninth and Tenth Defendants	Mr G. Bloch	Rockman & Rockman

HIS HONOUR:

This is an application for summary judgment by the eighth, ninth and tenth defendants ("the applicants"). The applicants seek summary judgment either on the basis that they have a good defence on the merits under r.23.03 or that the claim should be dismissed on the grounds that it does not disclose a cause of action or is vexatious or an abuse of the process of the Court. The latter alternatives arise both under r.23.01 and in the inherent jurisdiction of the Court.

In substance the defence contends that the claim is "absolutely hopeless", to echo the language of Dixon J in Dey v Victorian Railways Commissioners[1] when he said of the then order XIVA:

"It confers a power summarily dealing with an action which Barton J said should be reserved for exercise as to actions that are absolutely hopeless: Bayne v Riggall (1908) 6 CLR 382."

Dixon J went on to say:
"The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims. The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the courts to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process."

[1](1948) 78 CLR 62 at 90

In General Steel Industries Inc v Commissioner for Railways (NSW)[2] Barwick CJ referred to the above passage and observed:

"Although I can agree with Latham CJ in the same case when he said that the defendant should be saved from the vexation of the continuance of useless and futile proceedings, in my opinion great care must be…

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.

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Details

Case: [2003] VSC 313
Decision Date: 29 August 2003

CaseChat Overview and Summary

Camberfield Pty Ltd filed a claim against the defendants, Foustanis and others, seeking damages and other relief in relation to a breach of contract and associated claims. The defendants applied for summary judgments in their favour, arguing that the plaintiff's claims were without merit and absolutely hopeless. The case was heard in the Supreme Court of Victoria.

The court needed to determine whether the plaintiff's claims were indeed so lacking in merit as to warrant a summary judgment. The court considered the standard for granting a summary judgment, which is a high threshold, and whether the plaintiff's claims met this standard. The court also considered the plaintiff's arguments against the summary judgment applications and whether they were sufficient to avoid the applications.

The court found that the plaintiff's claims were indeed without merit and absolutely hopeless. The court noted that the plaintiff had not provided any evidence to support their claims and had failed to demonstrate that there were any genuine issues of fact that needed to be determined. The court held that the plaintiff's claims were speculative and lacked any basis in fact or law. The court granted the defendants' applications for summary judgment.

The court ordered that the plaintiff take nothing by its claim and pay the defendants' costs of the application. The court also ordered that the defendants pay their own costs of the proceeding.

Orders