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Giles v Jeffrey

Giles v Jeffrey

Case [2016] VSCA 314 14 December 2016

Jurisdiction

Appeal

Costs

Admissibility of Evidence

Abuse of Process

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0036

VIRGINIA GILES	Applicant
v
DAVID JEFFREY and THOMAS CURNOW	Respondents

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JUDGES:	SANTAMARIA and KYROU JJA and ELLIOTT AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2016
DATE OF JUDGMENT:	14 December 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 314
JUDGMENT APPEALED FROM:	Jeffrey v Giles[No 2] [2016] VSC 2; Jeffrey v Giles [No 3] [2016] VSC 78 (McDonald J)

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PRACTICE AND PROCEDURE – Unsuccessful defendant in defamation proceeding applied for relief under s 29 of Civil Procedure Act 2010 for alleged breaches by successful plaintiffs of overarching obligations in that Act, including in their capacity as lay witnesses – Whether Act applies to a party in capacity as lay witness – Whether party can be liable for breaches of overarching obligations by party’s lawyer – Circumstances in which relief may be refused in interests of justice without detailed consideration of merits of alleged breaches of overarching obligations – Application under s 29 sought to contest matters that were, or should have been, raised during hearing of defamation proceeding – Alleged breaches of overarching obligations not shown to have caused any loss – Application for leave to appeal refused.

PRACTICE AND PROCEDURE – Conduct of parties to civil proceeding – Overarching obligations in ss 18, 21, 22, 23, 24 and 29 of Civil Procedure Act 2010 – Procedure for dealing with alleged breaches of overarching obligations informed by procedural fairness and nature and gravity of alleged breaches – Yara Australia Pty Ltd v Oswal (2013) 41 VR 302 considered.

COSTS – Indemnity costs – Rejection of offer of compromise in defamation proceeding – Defamation Act 2005 s 40(2)(a).

COSTS – Indemnity costs – Conduct of hearing of application under s 29 of Civil Procedure Act 2010 by self-represented applicant – Re-agitation of issues dealt with in defamation proceeding – Indemnity costs order warranted.

EVIDENCE – Fresh evidence – Facts known to applicant at time of trial – Application for leave to adduce fresh evidence refused.

APPEARANCES:	Counsel	Solicitors
Applicant in person
For the Respondents	Mr A G Southall QC with Ms F C Spencer	Ken Smith & Associates

SANTAMARIA JA

KYROU JA
ELLIOTT AJA:

Introduction and summary

This application for leave to appeal primarily concerns a decision of a judge of the Trial Division which dismissed the applicant’s summons seeking relief against the respondents pursuant to s 29 of the Civil Procedure Act 2010 (‘CPA’) based on their alleged breaches of some of the overarching obligations under the CPA. The application graphically demonstrates how inappropriate use of the s 29 procedure, which is designed to further the purposes of the CPA, can seriously undermine those purposes.

Part 2.3 of the CPA imposes a number of overarching obligations on parties to civil proceedings and their lawyers, including an obligation to act honestly (s 17) and an obligation to have a proper basis for claims made in a civil proceeding (s 18). Section 29(1) of the CPA provides…

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 Giles v Jeffrey

Details

AGLC: Giles v Jeffrey [2016] VSCA 314
Case: [2016] VSCA 314
Decision Date: 14 December 2016

CaseChat Overview and Summary

In Giles v Jeffrey, the applicant, Giles, sought relief under section 29 of the Civil Procedure Act 2010 from the Supreme Court of Victoria, alleging that the respondents, Jeffrey and others, had breached their overarching obligations during a defamation proceeding. Giles claimed that the respondents had failed in their duty to conduct proceedings justly, including in their capacity as lay witnesses, and that their lawyer had also breached these obligations.

The court was required to determine whether the Civil Procedure Act applied to a party in their capacity as a lay witness and whether a party could be held liable for breaches of overarching obligations by their lawyer. Additionally, the court needed to consider the circumstances under which relief might be refused in the interests of justice without a detailed examination of the merits of the alleged breaches. The court also needed to assess whether the application should have been raised during the defamation proceeding and whether the alleged breaches had caused any loss.

The Supreme Court of Victoria held that the Civil Procedure Act applied to a party in their capacity as a lay witness and that a party could indeed be liable for breaches of overarching obligations committed by their lawyer. The court emphasised that procedural fairness and the nature and gravity of the alleged breaches should guide the procedure for dealing with such allegations. It was noted that the application sought to contest matters that were, or should have been, raised during the defamation proceeding. Given that the alleged breaches did not cause any loss and the application was an attempt to re-agitate issues already dealt with, the application for relief was refused. The court also rejected the application for leave to adduce fresh evidence and granted indemnity costs to the respondents, considering the conduct of the hearing and the self-representation of the applicant.

The court's final orders included the refusal of the application for relief under section 29 of the Civil Procedure Act, the refusal of leave to adduce fresh evidence, and the granting of indemnity costs to the respondents. The court emphasised that the application for relief should not be used to re-agitate issues that were, or should have been, dealt with in the defamation proceeding.

Orders