JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATES OF HEARING:	11 February 2019, further written submissions received on 25 March 2019 and 15 April 2019
DATE OF JUDGMENT:	17 September 2019
CASE MAY BE CITED AS:	Giles v Jeffrey & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 562

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PRACTICE AND PROCEDURE – Plaintiff sues former opponents in multiple proceedings and their lawyers – Summary judgment sought by the defendants pursuant to Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 and s 63 of the Civil Procedure Act 2010 (Vic) – Whether the plaintiff’s claim has any real prospect of success– Summary judgment granted on the basis that the plaintiff has no standing to bring claims for financial loss by reason of her bankruptcy, would not be able to establish a duty of care to avoid personal injury and financial loss on the part of the defendants, would not be able to make good a claim for malicious prosecution because the plaintiff was unsuccessful in the relevant proceedings, and her remaining claims have no prospects of success because the defendants are immune from suit by reason of witness immunity or advocates’ immunity – Attempt to relitigate issues determined in previous proceedings an abuse of process – No grounds for exercising discretion under s 64 of the Civil Procedure Act 2010 (Vic).

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the First to Third Defendants	Mr P Fary	Meltzer Green
For the Fourth and Fifth Defendants	Mr J S Graham	DLA Piper Australia

HER HONOUR:

Introduction and background

In 2002, Shapher Pty Ltd (‘Shapher’), a company controlled by the plaintiff, Ms Giles, and her husband, purchased 43.15 hectares of rural land in Neerim North (‘property’). Shapher is the trustee of the couple’s self-managed superannuation fund. The property was leased to Country Endeavours Pty Ltd (‘Country Endeavours’), a company also controlled by Ms Giles and her husband. Country Endeavours planned to conduct a mixed agricultural/accommodation business on the property, and ultimately, Mr and Mrs Giles intended to retire there.

These plans were disrupted by the purchase in May 2006 of an adjacent property by Casacir Pty Ltd (‘Casacir’), the third defendant in this proceeding. Casacir was granted a work authority and planning permit to develop and operate a quarry operation on the neighbouring property in or about 2009, but only after strenuous opposition from Ms Giles and others, and protracted litigation at the Victorian Civil and Administrative Tribunal (‘VCAT’). The first and second defendants in this proceeding, Mr David Jeffrey and Mr Thomas Curnow, are both directors and shareholders of Casacir. The fourth and fifth defendants (‘lawyer defendants’), Mr Ken Smith and Mr Anthony Southall QC, are legal practitioners who have represented Casacir and Messrs Jeffrey and Curnow (‘quarry defendants’)[1] over time. Mr Smith, a…

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 [2019] VSC 562
Case: [2019] VSC 562
Decision Date: 17 September 2019

CaseChat Overview and Summary

In Giles v Jeffrey, the plaintiff, a former litigant, sought to sue her former opponents in multiple proceedings and their respective lawyers. The defendants applied for summary judgment under Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 and section 63 of the Civil Procedure Act 2010 (Vic). The court had to decide whether the plaintiff’s claims had any real prospect of success.

The court examined the plaintiff’s claims for financial loss by reason of her bankruptcy, a duty of care to avoid personal injury and financial loss, malicious prosecution, and other claims. The court found that the plaintiff had no standing to bring claims for financial loss by reason of her bankruptcy. The court also found that the plaintiff could not establish a duty of care to avoid personal injury and financial loss on the part of the defendants, and could not make good a claim for malicious prosecution because the plaintiff was unsuccessful in the relevant proceedings. The remaining claims had no prospects of success because the defendants were immune from suit by reason of witness immunity or advocates’ immunity. The court also found that the plaintiff’s attempt to relitigate issues determined in previous proceedings was an abuse of process.

The court granted the defendants’ application for summary judgment and found that there were no grounds for exercising the discretion under section 64 of the Civil Procedure Act 2010 (Vic). The court ordered the plaintiff to pay the defendants’ costs.

Orders