Gabriel v Woodland

[2013] VCC 207

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted

AT MELBOURNE

COMMERCIAL LIST
GENERAL DIVISION

Case No. CI-12-06010

GEOFFREY GABRIEL	Plaintiff
v.
FAY WOODLAND & OTHERS	Defendants

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JUDGE:	His Honour Judge Anderson
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2013
DATE OF JUDGMENT:	14 March 2013 (revised 15 March 2013)
CASE MAY BE CITED AS:	Gabriel v. Woodland & Ors
MEDIUM NEUTRAL CITATION:	[2013] VCC 207

REASONS FOR JUDGMENT

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Catchwords:            Practice and procedure – Security for costs – Whether plaintiff’s address “not stated correctly” – Rule 62.02(d) County Court (Civil Procedure) Rules 2008 (Vic).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D.H. Denton SC with Ms C.F. Gobbo	Voitin Lawyers
For the Defendant	Mr T. Wodak	Tisher Liner FC Law

HIS HONOUR:

1The defendants, by summons filed 27 Feb 2013, seek an order that the plaintiff provide security for the defendants’ costs of the proceeding. The plaintiff is an individual and therefore the circumstances in which security would ordinarily be ordered are limited. The defendants rely upon two bases:

a.the defendants allege that the plaintiff has not correctly stated his address as required by Rule 62.02(d);

b.further and alternatively, the defendants allege that there are special circumstances which would justify the making of an order for provision of security under the inherent powers of the Court. These being:

i.there is a prospect that the plaintiff will be bankrupted before the action is determined;

ii.there is evidence that the plaintiff has attempted to evade the service of process upon him;

iii.the action should be regarded as one issued with the intention of being harassing and vexatious because the Statement of Claim includes  scandalous, vexatious and irrelevant material.

2In relation to the address of the plaintiff, the plaintiff’s address was stated as 198 Kerford Road, Albert Park. Kerford is spelt Kerferd. Apparently, there are two duplex flats at number 198, and a third dwelling over the garage of one of the flats and which has separate access from an adjacent street.

3The affidavit material suggests that there is no separate mailbox and the plaintiff receives mail through a post office box. On the other hand, the plaintiff’s former solicitor has sworn that mail that he has sent to the plaintiff at 198 Kerford Road, Albert Park has not been returned to him. The plaintiff also provided to his solicitor a letter received from Victoria Police addressed to him at 198 Kerford Road, Albert Park.

4I consider that there is no basis for suggesting that the address stated by the plaintiff was intended to deceive or was provided in circumstances which would justify an order for the provision of security for the defendants’ costs, whether on its own, or in conjunction with other matters.

5There is apparently a Bankruptcy Notice dated 22 January 2013 which a creditor is attempting to serve upon the plaintiff. The creditor’s solicitors are having difficulties attempting to serve the plaintiff with the Bankruptcy Notice. The Bankruptcy Notice relies upon a judgment entered 5 November 2010. There is further material that the plaintiff has had experience with previous matters relating to the Bankruptcy Act extending back over about 13 years.

6The matters in dispute between the parties in the litigation concern an alleged agreement said to have been made in about April 2011 between the plaintiff and the first defendant relating to the refurbishment, development and operation of a childcare facility in Melbourne. The agreement is largely based upon conversations alleged to have occurred between the plaintiff and the first defendant between 2008 and April 2011. The business arrangements, as set out in the Statement of Claim, were discussed over a lengthy period and were relatively complex.

7I consider that the unsuccessful attempts to serve the defendant and the unsatisfied judgment entered on 5 November 2010 provide little basis for displacing the ordinary rule that an impecunious plaintiff should not be prevented from pursuing a claim which is otherwise appropriately made.

8The defendants allege that there are allegations in the Statement of Claim which are scandalous, vexatious and irrelevant. These include suggestions that the first defendant’s son has hacked into the plaintiff’s email account and deleted certain records and that an interim intervention order was obtained by the first defendant against the plaintiff to prevent him from attending at the childcare centre, and which made it difficult for him to be involved in the business.

9The defendants have pleaded to the paragraphs which are said to be scandalous, vexatious and irrelevant in their Defence filed on 8 February 2013. The suggestion that those paragraphs were inappropriate was not raised in the Defence. The Statement of Claim was drawn by counsel, who signed the pleading. Mr Wodak, defendants’ counsel, has submitted that the price of bringing such allegations to trial should be the provision of appropriate security for the defendants’ costs.

10If there were some basis for the allegations in the Statement of Claim being struck out, that is a matter which could have been pursued as part of the present application. That has not been done. Accordingly, I consider that no special circumstances have been shown by the defendants which would justify the making of an order for the provision of security for the defendants’ costs of the proceeding.

11The defendants’ application by summons filed 27 February 2013 will be dismissed.

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Certificate

I certify that these 3 pages are a true copy of the reasons for decision of His Honour Judge Anderson delivered on 14 March 2013 and revised on 15 March 2013.

Dated: 15 March 2013

Catherine Kusiak    

Associate to His Honour Judge Anderson