Giles v Jeffrey

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2018 02256

VIRGINIA GILES	Plaintiff
v
DAVID JEFFREY & ORS (according to the attached Schedule)	Defendants

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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 solicitor, represented Casacir in the course of the litigation at VCAT (‘VCAT proceedings’), and the quarry defendants in two proceedings in this Court. Mr Southall QC, a barrister, represented Casacir in an appeal from VCAT to this Court, and represented the quarry defendants in a proceeding brought by them in this Court against Ms Giles for defamation (‘defamation proceeding’), including an ancillary proceeding (‘s 29 application’), and two appeals to the Court of Appeal.
[1]For ease of reading, the reference to ‘quarry defendants’ may be a reference to Messrs Jeffrey and Curnow, not including Casacir, depending upon the context. The distinction is not material for the purposes of the current applications.

The defamation proceeding concerned remarks made by Ms Giles regarding the conduct of the quarry defendants on a website (‘website’). The s 29 application sought compensation from the quarry defendants for losses said to have been suffered by Ms Giles as a consequence of the manner in which the defendants (including the lawyer defendants) conducted the defamation proceeding.

A helpful summary of the disputes between the parties is to be found in a decision of the Court of Appeal in 2016 with respect to the s 29 application,[2] as follows (omitting footnotes):
[2][2016] VSCA 314.

The genesis of the dispute between the parties was the respondents’ proposal to operate a quarry, through their company Casacir Pty Ltd (‘Casacir’), on land adjoining land owned by one of the applicant’s family companies, Shapher Pty Ltd (‘Shapher’), at Neerim North (‘Shapher land’).
In 2008, the applicant and others applied to the Victorian Civil and Administrative Tribunal (‘VCAT’) for review of a decision by the Baw Shire Council (‘Council’) to grant a planning permit for the operation of the proposed quarry (‘first VCAT proceeding’). On 19 January 2009, VCAT dismissed the first VCAT proceeding. In September 2009, another of the applicant’s family companies, Country Endeavours Pty Ltd (‘Country Endeavours’), which operated a farm business on the Shapher land, commenced an enforcement proceeding at VCAT against the Council, Casacir and the respondents alleging contraventions of various conditions in the planning permit (‘second VCAT proceeding’). The first respondent (‘Jeffrey’) gave evidence in the second VCAT proceeding but the second respondent (‘Curnow’) did not do so. On 7 February 2011, VCAT dismissed the second VCAT proceeding.
In June 2011, the applicant established a website with the web address (‘Website’). From August 2011, the Website made adverse statements about Casacir, the respondents and the quarry, including that each of the respondents deliberately lied on oath in the second VCAT proceeding.
On 7 December 2011, the respondents commenced a proceeding in the Trial Division against the applicant alleging, among other causes of action, that the Website contained defamatory statements (‘defamation proceeding’). The applicant was legally represented until 15 March 2013 and after that date she represented herself. Following a seven day trial in which both respondents gave evidence, Pagone J reserved judgment on 18 April 2013.
On 17 May 2013 — six days before Pagone J published his judgment — the applicant filed a summons against the respondents pursuant to s 29 of the CPA (‘s 29 summons’ or ‘s 29 application’) seeking compensation and costs on the basis that the respondents’ conduct of the defamation proceeding involved breaches of some of their overarching obligations under the CPA. The alleged breaches included that the respondents deliberately lied on oath in the defamation proceeding.
On 23 May 2013, Pagone J found that the applicant had defamed the respondents and awarded damages of $12,000 to Jeffrey and $8,000 to Curnow. Pagone J declined to deal with the s 29 summons and the brief hearing that took place when he published his judgment did not afford the parties an opportunity to fully argue costs issues or to deal with the respondents’ entitlement to interest pursuant to s 60(1) of the Supreme Court Act 1986. He made a costs order on the standard basis in favour of the respondents other than in relation to their claim for aggravated damages. The costs order was of an interim nature because it made provision for amendment depending on the outcome of the s 29 application.
The applicant applied for leave to appeal against Pagone J’s interim costs order and the respondents appealed against the quantum of damages. The applicant was represented at the hearing of that application and appeal by counsel who appeared pro bono. On 24 April 2015, this Court upheld the respondents’ appeal and substituted damages awards of $75,000 and $65,000 in favour of Jeffrey and Curnow, respectively. By majority, the Court refused to grant leave to appeal to the applicant. However, the Court referred to the judge hearing the s 29 summons the issues of whether Pagone J’s interim costs order should be amended and whether the respondents were entitled to interest.
On 31 May 2013, the applicant filed a further summons against the respondents pursuant to r 46.04(1) of the Supreme Court (General Civil Procedure) Rules 2005 (‘2005 Rules’) which, in effect, sought to replace Pagone J’s interim costs order with orders that the respondents pay part of her costs of the defamation proceeding (‘costs summons’). She also filed an affidavit in support of that summons. The costs summons and the s 29 summons (collectively ‘Summonses’) and the issues of costs and interest that were referred by the Court of Appeal were heard by McDonald J (‘CPA proceeding’). The applicant represented herself in the CPA proceeding.
On 5 February 2016, McDonald J determined: that Pagone J’s costs order should be amended to require the applicant to pay the respondents’ costs of the defamation proceeding (other than in relation to their claim for aggravated damages) on an indemnity basis; that the applicant should pay the respondents interest; and that no relief should be granted to the applicant pursuant to the Summonses. On 11 March 2016, McDonald J determined that the applicant should pay the respondents’ costs of the CPA proceeding on an indemnity basis. McDonald J’s order dated 11 March 2016 gave effect to these determinations.[3]

[3]Ibid [3]–[11].

The Court of Appeal dismissed the application for leave to appeal against McDonald J’s decision to refuse Ms Giles’ application for compensation in the s 29 application. Three applications by Ms Giles to the High Court for special leave were refused on 12 September 2017.

Further detail regarding the litigation between the parties at VCAT is to be found in a decision of Emerton J[4] (where leave to appeal against a decision of a VCAT member to award costs of an enforcement proceeding against Ms Giles and others was refused), as follows:
[4][2013] VSC 22.

The Tribunal’s reasons for its decision to award costs in favour of the Council and the quarry parties are lengthy. They focus largely on the conduct of Mrs Giles in her prosecution of the enforcement proceeding and a number of other proceedings brought in opposition to the re-opening of the quarry. The Tribunal described the enforcement proceeding as the ‘culmination’ of a series of proceedings brought in the Tribunal by Mrs Giles and/or Country Endeavours arising from Casacir’s project to open the dormant quarry immediately to the north of the Giles land. Despite strong opposition from Mrs Giles and others, the Council granted a permit for the quarry. The Council’s decision was the subject of a (14 day) review by the Tribunal following which the Tribunal confirmed the Council’s decision and ordered that a permit issue. Mrs Giles and Country Endeavours then brought a series of further proceedings in opposition to the quarry.
These ‘other proceedings’ are described in the affidavit of Virginia Anne Giles sworn on 31 January 2012 as follows:
(a)an application under s 89 of the Planning & Environment Act to cancel or amend a permit;
(b)an application under s 89 of the Planning & Environment Act for a stop work order;

(c) an application under s 305A of the Water Act 1989 (Vic);
(d)an application under s 126 of the VCAT Act for an order to extend time within which to commence a proceeding under s 83(1)(b) of the Water Act to review the decision to grant Casacir a licence to construct works on a waterway; and
(e)a claim for damages under ss 15 and 16 of the Water Act and for an injunction pursuant to s 19(3) of the Water Act and s 123 of the VCAT Act.

In relation to this course of events, the Tribunal observed:
It is quite obvious from subsequent history, and subsequent proceedings, that Mrs Giles was bitterly disappointed with the result of her review before the Tribunal. She has not accepted the decision of the Tribunal to grant the permit and she has since instituted a series of proceedings aimed at reversing or frustrating the result. These subsequent proceedings may have had their ostensible purposes but when the whole series is reviewed in detail it emerges that, underlying any ostensible motives there has been this ulterior motive of reversing and frustrating the decision of the Tribunal in the initial case. This strategy has included attempts to recontest issues determined by the Tribunal. It has also included attempts to prevent, frustrate or at least delay Casacir in seeking to act on the permit granted to it.[5]

[5]Ibid [13]–[15].

Accordingly, in summary, the disputes between the parties have been ventilated in the following proceedings:

(a) the VCAT proceedings, culminating in the proceeding dealing with the costs of the enforcement proceeding, where a VCAT member made an order for costs in favour of Casacir on the basis that the bringing of the enforcement proceeding was vexatious;

(b) an appeal to this Court from the costs order made against Country Endeavours, Shapher, and Mr and Mrs Giles in the enforcement proceeding, where Emerton J refused an application for leave to appeal against the decision of a VCAT member to award costs in favour of Casacir;

(c) the defamation proceeding (including an appeal to the Court of Appeal) in which the quarry defendants were successful in obtaining an award of damages (although their application for aggravated damages was unsuccessful); and

(d) the s 29 application (including an appeal to the Court of Appeal). In the s 29 application, orders were sought by Ms Giles seeking compensation from the quarry defendants. Ms Giles’ application was entirely unsuccessful, and the quarry defendants obtained an order for their costs of the defamation proceeding and the s 29 application on an indemnity basis.

Further, on or about 5 July 2017, Ms Giles made a written complaint to the President of the Victorian Bar regarding, among others, Mr Southall QC. This complaint was referred to the Legal Services Commissioner, who subsequently dismissed the complaint.

On 3 August 2018, Ms Giles was made bankrupt by an order of the Federal Circuit Court on the application of the quarry defendants, after Ms Giles failed to pay a judgment debt of $229,623.29 arising from an order of this Court made on 26 April 2017 (‘bankruptcy proceeding’). The order in the bankruptcy proceeding was made notwithstanding Ms Giles’ assertion that she had a cross claim against the quarry defendants which exceeded the amount of the judgment debt.

The proceeding and the current applications

This proceeding was issued on 19 September 2018, although apparently there had been correspondence between Ms Giles and the court registry for some time regarding the form of her statement of claim. The statement of claim ran to some 35 pages, and made a number of allegations against the defendants under the following headings:

(a) conduct occasioning damage to Giles by way of obstruction of justice;[6]
[6]‘Obstruction of justice’ is not a term known to Australian law, but has been the subject of a great deal of media attention in recent times, particularly concerning events in the United States.

(b) the damage to Giles resulting from the defendants’ obstruction of justice;

(c) damage to Giles by way of obstructing justice through fraud;

(d) damage to Giles by way of obstructing justice through false testimony;

(e) damage to Giles by way of obstructing justice through the suborning of false testimony;

(f) damage to Giles by way of obstructing justice through the abuse of the Court’s processes;

(g) damage to Giles by way of obstructing justice through attempting to pervert the course of justice;

(h) damage to Giles by way of obstructing justice through aggravating the damages; and

(i) obstruction of justice occasioning exemplary damages.

Given that the original statement of claim was superseded by an amended version following the initial hearing of the defendants’ summary judgment application, it is not necessary for present purposes to go into the allegations in the statement of claim in any detail. However, the following extract from the statement of claim provides a flavour of the allegations made against the defendants, which largely flowed through to the amended statement of claim:

Giles suffered severe emotional and financial damage when Jeffrey and Curnow each, on their own behalf and on behalf of CASACIR, criminally attempted to pervert the course of justice.
PARTICULARS
(a)In addition to their other forms of obstruction of justice, Jeffrey and Curnow each damaged Giles by their attempts to pervert the course of justice prior to legal action, inter alia:
(1)by having assured VCAT as absolute fact that there would be no detrimental impacts from their quarry if given a permit, and then once they had their permit and commenced the quarry, they allowed significant detrimental impacts;
(2)by signing, and/or authorising the signing of, the Terms they had absolutely no intention of complying with over the long-term;
(3)by assuring the regulatory authorities that certain things would definitely happen when they knew they would not happen;
(4)by assuring the regulatory authorities that certain things would definitely not happen when they knew they would happen;
(5)by deliberately concealing 2 documents and refusing to discover them;
(6)by giving instructions and/or authorisation to, and/or allowing, specialists and other representatives, including legal representatives (including, but certainly not limited to, Smith and Southall) to deliberately mislead and deceive others.

Giles suffered severe emotional and financial damage when Smith criminally attempted to pervert the course of justice.
PARTICULARS
a)In addition to his other forms of obstruction of justice, Smith damaged Giles by his attempted (sic) to pervert the course of justice prior to legal action, inter alia:
(1)by writing a letter in an attempt to bully and intimidate Giles into removing her entire website from the internet, and which letter contained allegations that were known by Smith to be fraudulent when writing and posting them;
(2)by advising Jeffrey, Curnow and CASACIR on how to take the actions for injurious falsehood and misleading and deceptive conduct that they had no intention of taking to prosecution, in order to further bully and intimidate Giles into the removal of her former website;
(3)by advising Jeffrey and Curnow on how to take action for defamation which claims he knew to be fraudulent;
(4)by refusing to assist the truth of the financial situation perpetrated upon Giles by Jeffrey, Curnow and CASACIR be revealed to the Federal Circuit Cou5rt.

Giles suffered severe emotional and financial damage when Southall criminally attempted to pervert the course of justice.
PARTICULARS
a)In addition to his other forms of obstruction of justice, Southall damaged Giles by his attempted to pervert the course of justice prior to taking legal action, inter alia:
(1)by advising Jeffrey, Curnow and CASACIR on how to take the actions for injurious falsehood and misleading and deceptive conduct that they had no intention of taking to prosecution, in order to further bully and intimidate Giles into the removal of her former website;
(2)by advising Jeffrey and Curnow on hot to take action for defamation which claims he knew to be fraudulent; and
(3)by deciding to deliberately withhold particularisations of claims in breach of the law.

Giles was significantly emotionally and financially damaged by each of Jeffrey and Curnow through their criminal perverting the course of justice.

PARTICULARS
a)In addition to this other forms of obstruction of justice, Jeffrey and Curnow each perverted the course of justice which impacted and damaged Giles financially and emotionally, inter alia:
(1)by approving and authorising and/or swearing on oath, to tell the truth, the whole truth and nothing but the truth, then giving false sworn verbal testimony at VCAT, and by swearing an oath to the truth of the contents of two affidavits filed and used at VCAT, when those affidavits and sworn testimony knowingly contained much in the way of knowingly false evidence;
(2)by providing to VCAT and the courts, various private letters including those marked ‘in confidence’ and/or ‘without prejudice’ without prior discussion or request for, or grant of, permission in breach of privacy, and by the fraudulent use of those letters;
(3)by authorising and approving of Smith ignoring various orders and directions of VCAT and the courts;
(4)by forcefully turning the spotlight onto their fraudulent claims about Giles being vexatious in trying to protect her legislated rights, so that they could try to avoid the consequences of their damaging actions and failures to comply with permit and work plan conditions, with legislation, and with their own undertakings;
(5)by the authorisation and approval of Smith and Southall’s fraudulent misrepresentations as fact of Jeffrey and Curnow’s excellent reputations, ethics and the like;
(6)by way of authorising and approving the defaming, and attempts at shaming and belittling of Giles in submissions and addresses made by Southall;
(7)by way of authorising and approving of Southall’s misuse and misquoting of the VCAT documentation;
(8)by each signing an overarching obligations certification on their own behalf and on behalf of CASACIR in order to convince the court that it could believe as truth contents of the documents Jeffrey and Curnow had personally approved and authorised to be filed and/or served, and that the court could and would believe as fact;
(9)by the submissions and addresses they each approved and authorised and/or which were given in their names;
(10)by taking action for defamation in the full knowledge that the action was fraudulent;
(11)by abusing the court’s processes by adding further fraudulent claims and denials (claims of injurious falsehood and misleading and deceptive conduct) with no intention of taking the claims to prosecution, but with the sole intention of further bullying, harassing and intimidating Giles into the removal of her entire former website from the internet as a matter of urgency, and once accomplished, removing those claims immediately (but still unconscionably using them in a concealed manner);
(12)by authorising the claim that the fraudulent withdrawn (but still retained and used claims and denials of injurious falsehood and misleading and deceptive conduct were true and accurate;
(13)by running up significant unnecessary costs for Giles when (and after) she had a legal team;
(14)by way of authorising and approving the defaming, and attempts at shaming and belittling of Giles in documents, correspondence, submissions and addresses;
(15)by way of authorising and approving the intimidation and harassment of Giles in documents, correspondence, submissions and addresses;
(16)by authorising and approving the deliberate delays in taking action and deliberate and unlawful delays in particularisation of the words complained of so as to try to add credibility to their claim, and by the misuse of those delays throughout the trial in order to gain additional damages;
(17)by authorising and approving of the fraudulent use of the letter of 19 August 2011 throughout the Supreme Court and Court of Appeal, which letter contained many knowingly and deliberate fraudulent claims and denials;
(18)by authorising and approving the fraudulent gross misuse of Giles’ apology in order to gain additional damages;
(19)by concealing documents that were critical to the case, and by authorising and approving of the fraudulent claims made about some of those documents;
(20)by unreasonably rejecting Giles’ offer of compromise, and by authorising and approving the active and deliberate deception in relation to Giles’ offer of compromise in order to gain additional damages when they knew they had later submitted an identical offer, but with significant additional costs incurred and charged;
(21)by fraudulently claiming that Giles had tried to blackmail, intimidate and/or threaten them by way of her website;
(22)by fraudulently claiming that meetings occurred that did not occur, and by fraudulently claiming conversations that did not take place;
(23)by the misuse of the correspondence that was sent the result of a fraudulent offer in 2005 by Jeffrey himself;
(24)by authorising and approving the fraudulent claims that they did not owe for the financial impact on Giles, the impacts resulting from their abuse of process by their fraudulent claims and denials in the injurious falsehood and misleading and deceptive conduct;
(25)by authorising and approving the fraudulent claim that Giles’ former website was false, entirely false, without foundation and baseless without having pleaded it in the Supreme Court and without seeking or obtaining permission from the Court of Appeal to add those claims to the appeal, and in the full knowledge that her former website was in fact true and correct;
(26)by the authorisation and approval of the twisting of facts in relation to the folder of annexures so as to not have to pay for the gross number of entirely and admittedly unnecessary and unwarranted pages;
(27)by their support of the repeated fraudulent allegations that there were only 3 amended statements of claim when they were fully aware of and had authorised 6 amended iterations, with the denials made in order to reduce the likelihood of having to pay for their incompetence;
(28)by the authorisation and approval of repeated claims by Smith and/or Southall that none of the defendants had done anything wrong by actively and deliberately deceiving the court;
(29)authorising and approving Southall fraudulently exaggerating by telling their Honours of the Court of Appeal as fact, that Giles had been taking Jeffrey, Curnow and CASACIR to VCAT since 2008 when he had truthfully told Pagone J as fact, that she had only taken action in August 2009 and 2010;
(30)by taking out bankruptcy procedures against Giles when they each knew that there was no valid reason for having done so, especially knowing that they had already caused her to become insolvent;
(31)by having a further now known ulterior purpose/motive for the previous damaging actions as well as the bankruptcy procedures, namely an intention to make Giles insolvent and to deliberately cause her further damage;
(32)by their instructions to tell the Federal Court that Giles had been taking action for fraud against them for 4 to 5 years when she had not taken any action at all against them for fraud;
(33)by their instructions to tell the Federal Court that they had not been paid the amounts Giles had paid to them and which they knew had been paid to them;
(34)by authorising and approving bills containing and claiming a significant number of improper items;
(35)by commencing taxation of 3 further bills well after taking action for the two others bills at the base of the bankruptcy proceedings, thus making it impossible for them to add the new bills to the bankruptcy; and
(36)by then seeking to have the taxation of those bills adjourned sine die, in order to leave the taxation hanging over Giles for an indefinite time – thereby deliberately causing Giles further damage through additional stress and anxiety.

By their obstruction of justice and their perverting the course of justice, inter alia, as outlined above, Jeffrey and Curnow gained significant damages, interest and costs totalling almost one million dollars gained in total, in having succeeded in intimidating Giles into the removal of her entire former website, in having Giles sell the Shapher land and thereby no longer be in a position to stop their quarry, and had Giles declared officially bankrupt and insolvent, with a trustee appointed to manage her affairs – thus causing Giles significant financially and emotionally [sic] damage.

In her prayer for relief, Ms Giles sought damages in the sum of at least $900,000 from each of Messrs Jeffrey and Curnow, at least $800,000 from Casacir, and at least $600,000 from each of the lawyer defendants, along with ‘significant aggravated and exemplary damages’. She also sought orders that the defendants make a public apology to her.

By agreement between the parties, the defendants have not yet filed their defences. On 20 December 2018, the lawyer defendants filed a summons seeking orders that the proceeding be dismissed or stayed pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) on the grounds that it is scandalous, frivolous or vexatious, and/or an abuse of the process of the Court. Further, the lawyer defendants seek that the proceeding be dismissed pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘CPA’), on the basis that the proceeding has no real prospect of success.

On 16 January 2019, the quarry defendants filed a summons seeking substantially the same relief as the lawyer defendants, as well as the following relief:

(a) further, or alternatively, the proceeding be dismissed on the grounds that it constitutes a collateral abuse of process as the claims made in the statement of claim are foreclosed by the factual findings of the Court in Supreme Court proceeding S CI 2011 066545 (being the defamation proceeding and the s 29 application); and

(b) alternatively, the statement of claim be struck out in whole or in part pursuant to r 23.02 of the Rules, on the grounds that it does not disclose any cause of action.

The defendants’ applications were listed for hearing on 11 February 2019. While all defendants sought summary dismissal of the proceeding, the lawyer defendants’ primary submission was that the statement of claim disclosed no cause of action known to the law. The quarry defendants supported this submission, but also relied upon their contention that the proceeding was an abuse of process, on the basis that the allegations in the statement of claim had been dealt with in the VCAT proceedings, the appeal from VCAT’s decision regarding the costs of the enforcement proceeding, the defamation proceeding and the s 29 application, and Ms Giles has exhausted all avenues of appeal in those proceedings.

During the course of the hearing on 11 February 2019, after the conclusion of oral submissions, and, following a discussion I had with Ms Giles regarding the necessary facts required to be pleaded to support a cause of action in (by way of example) negligence, the parties agreed that Ms Giles should be given leave to file and serve a further statement of claim to attempt to address the deficiencies identified by the defendants in their submissions. Subsequently, on or about 13 March 2019, Ms Giles filed an amended statement of claim, along with a document titled ‘Succinct summary identifying the legal causes of action relied upon against each defendant’. Subsequently, following the filing of further submissions by each of the parties, the parties agreed that no further hearing was required, and the parties were content for the defendants’ applications (which continued to be pressed) to be determined on the basis of the parties’ written submissions and the oral submissions made at the hearing on 11 February 2019.

The amended statement of claim

The amended statement of claim is a lengthy document, running to one hundred pages, along with a ten page annexure detailing the damage Ms Giles alleges she has suffered by reason of the conduct of the defendants. While the structure and the language of the amended statement of claim differs somewhat from the original statement of claim, Ms Giles relies upon largely the same factual allegations made against the defendants as in the original statement of claim, along the lines of those extracted in paragraph 11 above. The amended statement of claim is summarised below, using the headings utilised by Ms Giles.

A. Introduction

In this section, Ms Giles sets out, largely, but not wholly uncontroversially, the background to the current proceeding.

B. Intentionally and/or recklessly causing emotional distress

Paragraph 20 of the Amended Statement of Claim[7] provides as follows:
[7]The paragraph references in these reasons refer to the ‘clean copy’ of the Amended Statement of Claim provided to the Court.

The defendants conducted themselves in such a manner as to cause Giles to suffer severe emotional distress as a result.
Particulars
a)the defendants acted intentionally and/or recklessly by abuse of process and/or attempting to pervert the course of justice, acting negligently and taking out malicious prosecution and/or perverting the course of justice against Giles;

b)        the defendants’ conduct in doing so was extreme and outrageous;
c)        Giles was vulnerable and the defendant knew it;
d)        there was a pattern of conduct, not just an isolated incident;
e)        the defendants owed Giles a duty of care and breached that duty;
f)the defendants were in positions of power and used it to their extreme advantage; and
g)the defendants’ acts were the cause of Giles’ distress.

C. Abuse of process and/or attempting to pervert the course of justice

The allegations under this heading can be summarised as follows:

(a) the defendants, in bringing and prosecuting claims for injurious falsehood and misleading and deceptive conduct, brought false and baseless claims for an ulterior purpose;

(b) the claims were brought for the purpose of bullying and intimidating Giles into removing the website and to assist the quarry defendants to gain access to Giles’ assets and force her off the property;

(c) Messrs Jeffrey and Curnow had lied under oath at VCAT, and Casacir had no intention of complying with, among other things, the conditions of the planning permit, the relevant legislation, and the performance standards of its work permit;

(d) the quarry defendants misused a letter dated 19 August 2011 to demand an apology and demand that Ms Giles remove the website; and

(e) the quarry defendants abused the Court’s processes by their conduct at community meetings, their threats to her regarding water issues, by blocking public roads, by taking photographs of her, and threatening her on the radio.

D. Fraud

Ms Giles alleged that the quarry defendants and Mr Smith caused her ‘significant emotional and financial damage by willingly, knowingly and deliberately committing fraud by having signed … a binding terms of settlement agreement … with which [the lay defendants] had absolutely no intention of complying [sic] in the longer term’.

This allegation concerns a settlement agreement entered into between Casacir on the one hand, and Shapher and Country Endeavours on the other hand on 30 August 2010 concerning a proceeding brought in VCAT by Country Endeavours and Shapher alleging that Casacir had undertaken unauthorised works which were said to have interfered with the flow of water to the property (‘settlement agreement’).

E. Negligence

Paragraph 39 of the Statement of Claim provides as follows:

In breach of care and breach of duty, and in the full knowledge of the foreseeable risk to Giles, each of the defendants exhibited their negligence against Giles. The defendants’ conduct falls well below the standard of behaviour generally expected in society and also established in law. The defendants each owed a duty of care to the judiciary and to Giles, inter alia, to ensure that justice was accomplished.

Ms Giles alleged that the quarry defendants owed the judiciary a duty of care under the CPA and the Crimes Act 1958 (Vic) (‘Crimes Act’), and the lawyer defendants owed the judiciary a duty of care under the CPA, the Crimes Act, and the legislation and regulations governing the conduct of legal practitioners (‘professional conduct legislation’).

Ms Giles contended that the quarry defendants owed her a duty of care by reason of their obligations under the CPA, Casacir’s work authority and planning permit, various planning and environmental legislation, assertions made by them to regulatory authorities, and their pleading in the defamation proceeding to the effect that ‘they did not have an arrogant disregard for the people who lived in the area of the quarry’.

Under this heading, Ms Giles also alleged that the defendants ‘conducted a tortious conspiracy to give and/or suborn false evidence’, referring to the evidence given by Mr Jeffrey in the VCAT proceedings, at the trial of the defamation proceeding and in the bankruptcy proceeding, and the evidence given by Mr Curnow at the trial of the defamation proceeding and in the bankruptcy proceeding. Further, she alleged that the defendants deliberately delayed filing and serving their writ and statement of claim, and delayed providing proper particulars in the defamation proceeding, and delayed in notifying her of what they claimed to be the defamatory words on the website.

Paragraph 45 of the amended statement of claim provides as follows:

At all relevant times, the defendants caused Giles significant personal injury and damage by their negligence when they commenced action against Giles for defamation.
Particulars
a)The defendants unreasonably initiated the proceedings when, but for Giles previous legal representatives refusing to allow her any defences, there were no prospects of success. If Giles had been allowed to defend on truth and justification, the defendants would not have proceeded with their claims.
b)the defendants’ claims in relation injurious falsehood and misleading and deceptive conduct were identical to those of their defamation claims, and therefore the truth or otherwise of their “explanations” in paragraphs 20 and 29 equally relate to their claims of defamation – proving that the defendants knew full well that, in addition to those of injurious falsehood and misleading and deceptive conduct, their defamation claims were also fraudulent, and the defendants negligent for having commenced and run the claims.

Ms Giles also repeated her allegations that the quarry defendants unreasonably brought claims for injurious falsehood and misleading and deceptive conduct in the defamation proceeding, when those claims were baseless and were made for an ulterior purpose. She also repeated her allegations that the quarry defendants had lied under oath in the VCAT proceedings, had lied at community meetings, and had breached the conditions of the planning permit and other obligations imposed upon them with respect to the operation of the quarry.

Ms Giles alleged that the quarry defendants acted negligently in refusing to accept an offer of compromise made by her in the defamation proceeding, and the lawyer defendants deliberately deceived Pagone J by not disclosing the existence of this offer.

Other allegations made by Ms Giles under the heading ‘Negligence’ include:

(a) the defendants misused and misquoted information and documents;

(b) the defendants misconstrued facts regarding her offers to sell the property to the quarry defendants;

(c) the defendants, by way of fraudulent misrepresentations and negligent misstatements, convinced judges of this Court that Ms Giles was in error;

(d) the defendants claimed that Ms Giles was vexatious, when all she was seeking to do was to have the quarry defendants comply with their planning permit and work authority, relevant legislation, and their own undertakings with respect to the operations of the quarry;

(e) the defendants have ‘defamed, shamed and belittled’ Ms Giles in documents, correspondence, submissions and addresses;

(f) the defendants fraudulently and grossly misused Ms Giles’ apology at the trial of the defamation proceeding to obtain additional damages;

(g) the defendants made the fraudulent claim that Ms Giles’ former website was false;

(h) the defendants falsified the length of time they had been involved in the VCAT proceedings;

(i) the quarry defendants initiated the bankruptcy proceeding in the full knowledge that there was no valid reason for doing so;

(j) the defendants repeatedly undermined the provisions of the CPA;

(k) Mr Smith swore a false affidavit on 12 June 2015 (in the context of the s 29 application);

(l) Mr Southall QC ‘made submissions outside points of law, and determined to win at any cost’ in the hearing of the appeal from the VCAT decision concerning the costs of the enforcement proceeding;

(m) the defendants continued to introduce irrelevant matters at the trial of the defamation proceeding, and actively misled Pagone J;

(n) the defendants fraudulently claimed that Mr Southall QC conducted himself properly during the trial of the defamation proceeding;

(o) the defendants misled and deceived the Court of Appeal; and

(p) the defendants conducted themselves in a negligent manner in relation to costs.

F. Malicious prosecution and/or Perverting the Course of Justice

Ms Giles alleged that the defendants were liable for malicious prosecution and/or perverting the course of justice in bringing the quarry defendants’ claims in the defamation proceeding, knowing that the claims were untrue. In particular, they falsely claimed that Ms Giles had defamed Messrs Jeffrey and Curnow in revealing that they had lied under oath at VCAT, had lied to and deceived the community at community meetings, and had interpreted VCAT orders and directions the way they wished.

Further, Ms Giles claimed that the defendants were liable for malicious prosecution and/or perverting the course of justice in commencing action against her for injurious falsehood and misleading and deceptive conduct when those claims had no prospects of success, and had been brought for ‘ulterior, anterior and entirely dishonest and deceptive motives’, and claimed aggravated damages against Ms Giles in the defamation proceeding when there was no case to answer.

The remainder of the amended statement of claim concerns Ms Giles’ claims that, by reason of the conduct of the defendant, she is entitled to aggravated and/or exemplary damages. Strictly speaking, it is not necessary for me to consider these allegations, as the defendants’ applications concern whether Ms Giles has any viable cause of action against the defendants, or any of them. However, I have summarised these allegations below for completeness. The allegations under these headings illustrate the intensity of the grievances held by Ms Giles with respect to the conduct of the defendants.

G.Damage to Giles by way of obstructing justice through aggravating the damage

Paragraph 77 of the amended statement of claim provides as follows:

The defendants have profoundly aggravated, and continue to prolifically aggravate, the emotional and financial damage and personal injury done to Giles.
Particulars
a) none of the defendants have apologised for their conduct;
b)the defendants have actively, repeatedly and fraudulently denied that Giles has been impacted or prejudiced by their conduct;
c)the defendants are entirely unrepentant, have shown no remorse, and have continually refused to apologise for any of their conduct;

d) the defendants have lied to Giles and to others lied about Giles; and
e) the defendants have defamed, bullied and intimidated Giles;
f)the defendants have carried on their obstructions of justice abuse of process and/or an attempt to pervert the course of justice, fraud, negligence and malicious prosecution and/or perverting the course of justice through various means and thereby continued their damage to Giles;
g)the defendants refused early mediation to try to resolve this issues prior to Giles commencing action;

h)        jointly and severally, the conduct of the defendants caused Giles:
i)        humiliation and embarrassment,
ii)        pain and anguish,
iii)       distress,
iv)       loss and damage,
v)        injury to credit and reputation,
vi)       injury to self-confidence,
vii)      wounded pride,
viii)     loss of faith in herself and others,

and, in addition, Giles has been brought into continued public ridicule and contempt by the defendants.

Further, Ms Giles alleged that the conduct of the defendants (particularised in extensive detail in the amended statement of claim) is proof of:
(i)         malefides (sic) and lack of good faith;
(ii)       the admitted existence of collateral and/or anterior and/or ulterior purposes and/or motives;
(iii)      unjustified and unreasonable conduct; and
(iv)      fraud.
Paragraphs 79 to 82 of the amended statement of claim provide as follows:

The defendants have consistently shown their malevolence, malice and spite in the manner which they committed the injuries and damage to Giles’ proper feelings of dignity and pride. They defamed, discredited, insulted, humiliated and embarrassed Giles.
The various defendants twisted evidence, ignored the truth, repeatedly gave false testimony, authorised and approved of or gave fraudulent misrepresentations and negligent misstatements as absolute and unassailable truth, and persisted in trying to justify and assert the truth of their fraudulent claims during the various hearings.
The defendants had reasons and motives for their gross deceit, namely to do whatever it took to win the cases, to gain as much of Giles’ assets as possible, to have Giles’ former website removed from the internet in its entirety and to have Giles forced off her land.
The defendants have such a lack of care that they are forcing Giles to go through a further trial, particularly in the face of their repeated denials and unrepentant attitudes in spite of the truth.

Further, in relation to Ms Giles’ claim for exemplary damages, paragraph 84 of the amended statement of claim provides as follows:

The defendants have caused Giles profound emotional and financial damage through having obstructed justice, inter alia, by the above means, evidencing endemic, systemic and continuing contumelious disregard for Giles’ rights and the law. A serious award of exemplary damages must be used as an example to show Jeffrey, Curnow, CASACIR, Smith, Southall, and others, that they cannot conduct themselves in that manner get away with it, let alone be rewarded for it.
PARTICULARS
a)The extraordinary obstruction of justice by, and/or authorised and/or approved by, Jeffrey, Curnow, CASACIR, Smith and Southall, reveals:
(1)an unequivocal disregard for the significant emotional and/or financial damage done to Giles;
(2)an unqualified and continuous contumelious disregard for Giles’ rights to fair proceedings;
(3)an unqualified and continuous contumelious disregard for Giles’ rights to be treated properly and with resect (sic); and
(4)an unqualified and continuous contumelious disregard for Giles’ rights, including human rights; and

(5) an entitlement to Giles for significant exemplary damages:
i.so as to punish each of Jeffrey, Curnow, CASACIR, Smith and Southall, and
ii.to deter them and others from that type of continued behaviour.

b)The court should also use the award to show the level of its disapproval at the conduct of Jeffrey, Curnow, CASACIR, Smith and Southall.

The annexure to the amended statement of claim details the damage and personal injury said to have been caused by the defendants’ negligence and malicious prosecution. The defendants’ conduct is said to have caused:

(a) damage to Ms Giles’ credit and reputation;

(b) damage to Ms Giles’ emotions, including:

1.humiliation and embarrassment;
2.pain and anguish;
3.distress;
4.injury to self-confidence;
5.wounded pride;
6.loss of faith in herself;
7.stress;
8.fear;
9.anxiety;
10.depression;
11.loss of faith and trust in others;
12.shame about the things said about her;
13.panic attacks, and
14.post traumatic stress disorder.

(c) injury to Ms Giles’ health and wellbeing, including type 2 diabetes, breast cancer, hair loss, sleep loss, and weight gain; and

(d) damage to Ms Giles’ financial position. Ms Giles alleges that the quarry defendants caused her to suffer severe financial loss by:

(v) depriving her of her ‘pre-existing legislated rights and benefits’;

(vi) causing the loss of productivity of her land; and

(vii) forcing her to sell her land at a loss of $365,000.[8]

[8]I assume, but cannot be certain, that the reference to ‘her land’ is a reference to the property.

Further, Ms Giles alleged that the quarry defendants caused Ms Giles to spend in excess of $318,741.79 in the VCAT proceedings, $111,700.34 on legal fees in the defamation proceeding, and the defendants also forced her to pay damages and legal costs arising out of the enforcement proceeding, the defamation proceeding, the s 29 application, and associated appeals. She alleged that the defendants caused her further financial loss, including:

(viii) loss of income and superannuation of $658,944;

(ix) the operations of the quarry caused Country Endeavours to lose $43,950 in its beef raising business and $264,000 in its agroforestry business;

(x) Country Endeavours lost the opportunity to run a bed and breakfast business;

(xi) Ms Giles had to spend her inheritance from her mother upon the defendants’ costs, in the sum of $97,000; and

(xii) Ms Giles had to borrow in excess of $500,000 from her husband, which she still owes.

Ms Giles alleged that the defendants caused her personal injury and additional damage to her lifestyle, as she and her husband have lost the ability to retire to the property, and she has had to sell another property.

The relevant test

Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) provide as follows:

Where a proceeding generally or any claim in a proceeding—
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of the process of the Court—
the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

Rule 23.02 of the Rules provides as follows:

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading—
(a) does not disclose a cause of action or defence;
(b) is scandalous, frivolous or vexatious;
(c)may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court—

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

In addition, the defendants rely upon s 63 of the Civil Procedure Act 2010 (‘CPA’), which provides as follows:

Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

The test under s 63 of the CPA is governed by the statement of the Court of Appeal in the oft-cited decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[9] as follows:

(a)the test for summary judgment under section 63 of the CPA is whether the respondent to the application for summary judgment has a ‘real’ as opposed to ‘fanciful’ chance of success;
(b)the test is to be applied by reference to its own language and without paraphrase or comparison with the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail test’ essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.[10]

[9][2013] 42 VR 27.

[10]Ibid [35].

Further, Neave JA (who otherwise concurred with the statements made by the majority above) stated as follows:

… I am concerned that undue emphasis on the caution with which a Court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s.63 have little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s.1(2)(e) of the Civil Procedure Act, and with the requirement that the Court give effect to the over-arching purposing of [the CPA], imposed by s.8.[11]

[11]Ibid [41].

Section 64 of the CPA provides as follows:

Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.

Therefore, the Court retains a residual discretion not to award summary judgment. The occasions where the Court has allowed a proceeding to continue notwithstanding that the proceeding has no prospects of success would be rare.

In contrast with r 23.01 of the Rules and s 63 of the CPA, r 23.02 of the Rules is concerned with the sufficiency of a pleading rather than the viability of a claim.

Submissions

In their written outline of submissions filed on 7 February 2019, the lawyer defendants submitted that the statement of claim was ‘manifestly bad’ in that no identifiable cause of action is pleaded, it is replete with allegations of criminality and misconduct, and it is confusing. The lawyer defendants also submitted that summary judgment should be granted, as there is no viable claim which could be mounted against the lawyer defendants.

The lawyer defendants submitted that, insofar as Ms Giles alleges that the lawyer defendants ‘criminally attempted to pervert the course of justice’ in connection with the evidence given and submissions made in the defamation proceeding, no claim could be made against the lawyer defendants based upon giving or procuring false evidence because of the immunity which applies to witnesses and others in connection with court proceedings. Further, no claim based upon the tort of abuse of process could be maintained against the lawyer defendants, as they were not parties to any of the relevant proceedings.

The lawyer defendants’ written outline of submissions also referred to other impediments to Ms Giles bringing her claims in this proceeding, including her bankruptcy, the fact that in some cases Ms Giles would not be the proper plaintiff, the passage of time since some of the events complained of, and the principles of issue estoppel, Anshun[12] estoppel, and abuse of process which would preclude Ms Giles from relitigating matters which had been determined in previous proceedings.
[12]Port of Melbourne Authority v Anshun (1981) 147 CLR 589, (‘Anshun’).

At the hearing of the defendants’ applications, counsel for the lawyer defendants submitted that there was no utility in allowing any of Ms Giles’ claims to proceed. Counsel also emphasised the fundamental principle of the finality of litigation, referring to the ‘propensity of the plaintiff to use the legal process to level accusations of the most serious kind’. Counsel referred to the following statement of the Court of Appeal decision with respect to the s 29 application:

Some of the applicant’s allegations reflect a misunderstanding of the judicial process, the role of pleadings and other common court documents, the role of counsel and the dynamic nature of a court room. Other allegations fasten on a narrow literal meaning of words used by the respondents and their lawyers and ignore the nuances of language. Yet other allegations treat any future departure from a past stated position as evidence of dishonesty without any allowance for the fact that changes in position sometimes arise in response to altered circumstances. The applicant’s allegations also make no allowance for the fact that, as discussed at [183] below, parties and their lawyers from time to time make mistakes which do not bespeak dishonesty or a breach of an overarching obligation.[13]

[13][2016] VSCA 314 [161].

Counsel for the lawyer defendants submitted that, while the question of the finality of litigation is important in the context of these applications, the Court should not be required to trawl through everything that has taken place before in order to cross‑reference what is raised in this proceeding and assess whether the matter has been dealt with in the previous proceedings. Accordingly, the lawyer defendants’ primary submission was that Ms Giles has no viable cause of action against them. That said, counsel for the lawyer defendants submitted that Ms Giles’ allegations also amount to a collateral attack upon the findings in the defamation proceeding and the s 29 application.

In their written outline of submissions filed on 8 February 2019, the quarry defendants joined with the lawyer defendants’ criticisms of the statement of claim, noting that:

A fundamental problem with the statement of claim is that it focuses exclusively on questions of causation and loss without properly identifying a course of action giving Ms Giles a right to damages.

Counsel for the quarry defendants observed that numerous of the allegations in the statement of claim concerned alleged crimes, rather than civil causes of action. Further, the statement of claim focuses largely on questions of causation and loss, and does not disclose any cause of action. Further, the quarry defendants submitted that the findings of McDonald J in the s 29 application conclusively answer Ms Giles’ claims that in bringing the defamation proceeding, the quarry defendants were motivated by malice, that the defamation proceeding was an abuse of process. Those claims constitute a collateral attack on the findings in the s 29 application, and are themselves an abuse of process, as McDonald J rejected Ms Giles’ submissions that the commencement of the defamation proceeding was an abuse of process. Counsel for the quarry defendants also relied upon the principle of witness immunity in support of his submissions that the quarry defendants are immune from suit with respect to the allegations that they lied in their evidence to this Court.

In the written outline of submissions provided to the Court on 11 February 2019, Ms Giles relied upon her ‘show cause’ affidavit sworn on 5 February 2019. In this affidavit, Ms Giles alleged that the solicitors for the quarry defendants and the lawyer defendants in this proceeding made fraudulent and ‘falsely sworn’ allegations in support of their summary judgment applications, and alleged the defendants have tried to mislead and deceive the Court in the course of the current applications.

Ms Giles also relied upon an email sent by the court registry which assured her that the statement of claim complied with the Rules. She submitted that she found the quarry defendants’ assertion that fraud must be pleaded with particularity to be hypocritical given their failure to provide proper particulars in the defamation proceeding.

Ms Giles submitted that her claims in this proceeding do not seek to overturn or revisit any of the previous proceedings: rather, this proceeding is concerned with the loss and damage that the defendants’ conduct has caused her, noting that a bankrupt is entitled to bring claims for personal injury. She rejected the assertion that the proceeding is ‘scandalous, frivolous or vexatious’, relying upon the ordinary dictionary meaning of those words.

Ms Giles rejected the suggestion that her allegations against the defendants had been determined by McDonald J in the s 29 application and the subsequent appeal, stating as follows:
Although referring to this case in his orders dated 11 March 2016 as having been a “trial”, McDonald J (inter alia):
(1) did not only allowed half a day for submissions,
(2)did not treat that case with seriousness by failing to question the accused,
(3)did not question me in any depth on any of my allegations, and
(4)did not say Mr Jeffrey and Mr Curnow did not lie under oath,
(5)claimed that Pagone J did not find anything wrong with what the defendants did.
that case clearly has no relevance other than by the way the defendants each conducted themselves by jointly and severally deliberately and determinedly causing me significant damage and personal injury.
The defendants admitted that my application before their Honours of the Court of Appeal in 2016 was my appeal against McDonald J’s orders. In addition:
i)The defendants won that case, partly due to Mr Southall’s insistence that their Honours not look closely at the fact that he and Mr Smith had misled the court, or the fact that Mr Jeffrey and Mr Curnow had each lied under oath;
ii)that case clearly had no relevance other than by the way the defendants each conducted themselves by jointly and severally deliberately and determinedly causing me significant damage and personal injury.
Ms Giles submitted that the defendants, in their affidavits and submissions, have proved that their conduct has driven her into bankruptcy. She submitted that only a full hearing on the merits (before a judge and jury) is appropriate.

Finally, Ms Giles submitted as follows:

16)The defendants have serially and provably damaged, injured and wronged me. For the court to refuse my application would be against natural justice and would further damage and injure me. Further, by seeking a summary dismissal, the defendants have proved that they are entirely unconcerned that they have caused me significant and on-going damage, personal injury and other wrongs.
17)There has never been any time or place where the issues of my damage or personal injuries have been brought before the court, heard or determined, let alone the extent of the damage or personal injury, and/or compensation granted or refused.
18)The defendants’ application for a summary judgment is a scandalous, frivolous, vexatious, and mean-spirited application. Their application is also an abuse of the court’s processes because they know the truth to be entirely different to that claimed.
19)In spite of being fully aware of the truth, on many occasions each of the defendants continued to blame me for matters for which they were themselves responsible; and they did so in order to try to make me look bad and a liar before the court, when it was them who were lying.
20)Mr Jeffrey and Mr Curnow each testified under sworn oath that they believed it was fine and acceptable to them to take action on their own behalf and on behalf of CASACIR, including by using the services of Mr Smith and Mr Southall, in order to protect their rights. In direct contrast however, they all consistently claim that I am vexatious for trying to protect my legislated rights that pre-existed the arrival of Mr Jeffrey, Mr Curnow and CASACIR.
21)The defendants’ conduct not only damaged me and caused me significant injury, much of it broke the law and each of the defendants could be subject to heavy fines and/or up to 15 years jail for some of the offences if the court sees fit.
22)Once the defendants had created and addressed the false issues contained in their documents to this attempt at summary dismissal, it ran the risk of, as it was designed to, rob me of a fair trial on the merits of my case (sic). To allow the defendant’s application to stand would affect (sic) a substantial wrong and a gross miscarriage of justice.
23)Their argument for summary dismissal is demonstrably absurd, non-factual, and a blatant attempt to further divert the course of justice by blatant deceit. The non-factual nature and falsity is an example of the defendants’ willingness to present lies as fact.
24)My action is an attempt to stand up for myself and take back my voice after being bullied and intimidated, damaged and suffering great personal injury.
25)The defendants are not merely grossly mis-stating things, they are purposefully injecting fraudulent information into the situation in order to change and distort the perspective the court has of the true facts.
26)Being duped by the defendants has contaminated my entire sense of self. It has thrown me off-kilter and made me question everything and everyone.
27)The defendants have worked hard to invent their own reality, and if the court to accepts their false claims without sanction, it ultimately endorses the fact that they have and do make false allegations without proof, and they will, yet again, have greatly succeeded.
28)They have tried to convince the court that I’m delusional when all along they set me up.
29)Rather than my claim having no chance of success, I claim that it is this claim against me that is manifestly hopeless, and I submit that to not to set aside the defendants’ applications for a summary dismissal would be to reward behaviour that is contrary to the public interest, and natural justice.

In the course of the hearing of the defendants’ applications, Ms Giles submitted that she could prove that the quarry defendants’ conduct in entering into the settlement agreement was fraudulent, handing up a copy of the settlement agreement, and photographs said to show the interference of the quarry operations with the supply of water to the property. She repeated her submissions that she was not seeking to relitigate anything: rather, she was seeking to focus upon the defendants’ conduct and its impact upon her.

As noted above, following the service of Ms Giles’ amended statement of claim, both the quarry defendants and the lawyer defendants continued to press the applications in their respective summonses. In their supplementary written submissions filed on 25 March 2019, the quarry defendants:

(a) relied upon their previous written and oral submissions, and adopted the submissions of the lawyer defendants;

(b) submitted that there were no known causes of action of ‘intentionally and/or recklessly causing emotional distress’ or attempting to pervert the course of justice known to the law;

(c) referred to the following statement of the High Court in Williams v Spautz:[14]
[14](1992) 174 CLR 509.

Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers.[15]

and submitted that the allegation that the defamation proceeding was motivated by malice or other improper purpose was comprehensively rebutted by McDonald J (and the Court of Appeal) in the s 29 application; and

(d) there are no facts pleaded which would give rise to an arguable duty of care.

[15]Ibid, 523.

In their supplementary written outline of submissions, the lawyer defendants submitted as follows:

[the amended statement of claim] suffers from the same pleading defects as the original statement of claim, and these defects are only magnified and made worse by the added length and prolixity of the [amended statement of claim]. The [amended statement of claim] contains a forest of assertions and allegations as to serious misconduct, and it does not plead the elements of any cause of action or the details that would be required to properly inform the defendants as to the case to be met. It is a manifestly bad pleading which cannot be allowed to stand. No fair trial could ever proceed on the basis of it.

The submissions of the lawyer defendants then went on to analyse the viability of any potential causes of action discernible from the matters referred to in the amended statement of claim, and concluded as follows:

Ms Giles has no real prospect of success on any claim against [the lawyer defendants] or the other defendants: no viable cause of action has been articulated by Ms Giles in [the amended statement of claim] (or the Summary Document or the Further Summary Document) and no viable cause of action can be divined from the various matters about which she complains.
Instead of pleading a cause of action which Ms Giles could maintain against the defendants, [the amended statement of claim] presents as a catalogue of Ms Giles’ various ongoing grievances about the manner in which previous litigation between Ms Giles (and her associated parties) and the first to third defendants was conducted. In substance, Ms Giles invites the Court to revisit the outcomes which were decided adversely to her in the previous litigation, in an endeavour by Ms Giles to seek redress and exact retribution for the wrongs that she perceives were thereby done to her. Ms Giles does this having either exhausted or chosen not to pursue her available appeal avenues in relation to those matters in the previous litigation, having been declared bankrupt and remaining so, and having been admonished for her conduct in the previous litigation by successive judicial officers.
Ms Giles should not be permitted to persist with this proceeding, and the defendants and the Court should not be vexed with it, coming as it does on the back of unfortunate and protracted litigation in which Ms Giles was unsuccessful and she refuses to accept the result. Ms Giles has had ample opportunity to articulate the legal claims she would seek to advance, but she has failed to plead or even identify a viable cause of action which could be maintained against any of the defendants.
In the circumstances, it would be unfair and oppressive to the defendants, burdensome to the Court, and inimical to the overarching obligations under the CPA and the due administration of justice to allow Ms Giles to persist with this proceeding any longer. The Court should now give summary judgment for [the lawyer defendants] and the other defendants pursuant to s 63 of the CPA.

In response, Ms Giles filed and served further written submission on 15 April 2019 (running to some forty pages), along with a document headed ‘Succinct summary identifying the legal causes of action relied upon against each defendant’. In this document, Ms Giles summarises which defendants are said to be liable in respect of the causes of action pleaded by her. While there is some variation between the conduct of each of the defendants said to have caused Ms Giles loss and damage, it is reasonably clear that each of the defendants is said to have been liable for the conduct of the other defendants, by advising, authorising, or instructing the other defendants to engage in the conduct sought to be impugned by Ms Giles.

In her submissions, Ms Giles commented upon the various potential causes of action returned to in the amended statement of claim.

Ms Giles submitted that ‘intentionally and/or recklessly causing emotional distress’ is a valid cause of action, and is indeed her overarching cause of action. Her claims in that regard have not been the subject of any findings in any court proceedings. In any event, if it is not a recognised cause of action, it is open to the Court to entertain the claim ‘given that every cause of action had to commence with a new proceeding at some stage’.

Much the same submissions were made with respect to Ms Giles’ allegations that the defendants had attempted to pervert the course of justice. In relation to her claims that the defendants had engaged in an abuse of process, Ms Giles submitted that the defendants had brought their claims for injurious falsehood and misleading and deceptive conduct for collateral purposes, being to force Ms Giles to take down her website, and to make her bankrupt and force her from the property.

Ms Giles submitted that fraud is a valid cause of action, and that she has provided clear and detailed particulars of the fraud, being the entry of the quarry defendants (with the assistance of Mr Smith) into the settlement agreement. She submitted that the photographs of the property and the effect of the quarry operations upon the water supply to the property handed up at the hearing on 11 February 2019 constitute sufficient evidence of the quarry defendants’ fraudulent conduct.

Ms Giles submitted that the defendants’ contention that she could not bring an action based upon the settlement agreement as she was not a party to the settlement agreement should be rejected: the quarry defendants and Mr Smith fought hard to join her as a party to the enforcement proceeding, and she was the person who actually signed the settlement agreement. Further, this claim does not involve re-litigating what occurred at the enforcement proceeding, because the terms of settlement brought that proceeding to an end.

In relation to the cause of action in negligence, Ms Giles submitted that there have been no findings in relation to negligence, as there has been no proceeding in which these claims have been pursued against the defendants. Insofar as the defendants’ conduct involved committing or suborning perjury, Ms Giles submitted that she is not suing them for their actual conduct, but for the consequences of their illegal conduct. In relation to the question of whether the defendants owed Ms Giles a duty of care, she submitted that they:

...certainly had and have various duties with the paramount duty to the court, with the outworkings of that duty being a duty to Giles – it is impossible to have a duty to the court to be honest and ensure that justice is done, without that being a subsequent duty to Giles to ensure that she receives justice.

Ms Giles also relied upon the obligations imposed upon the defendants by the CPA, the obligations imposed upon the lawyer defendants by professional conduct legislation, and the duty of care imposed upon the quarry defendants by their own assurances and undertakings, their work plan, and planning permit, and other legislation, including the planning scheme.

In relation to the claim of malicious prosecution and/or perverting the course of justice, Ms Giles submitted that the defamation proceeding was brought in the full knowledge that the action (including the claims for injurious falsehood and misleading and deceptive conduct) had no basis in fact, and was brought with the intention of causing harm to her and her related parties. She submitted as follows:

The fourth and fifth defendants claim that the injurious falsehood and misleading and deceptive conduct claims were discontinued by consent – yet, in disregard for the Rules, they did not overtly remove them as demanded by the orders of Beach J (as he was then) until 21 March 2013, as admitted by Southall, and did not remove them at all in reality but covertly retained them without pleading them, causing Giles’ additional distress, anxiety and depression. The fact that they were not overtly tried does not detract from the fact that they should not have commenced, and they should not have commenced because they had no basis but were used for ulterior motives. The claims for aggravated damages, while not succeeding, were claimed by the plaintiffs to still have been valid and that they should have and would have succeeded, and still caused Giles losses, damage, and personal injury. Mislead by the defendants, McDonald J was in error when he claimed that Pagone J had not said that there was no factual basis for the aggravated damages. These matters are raised by the defendants to obfuscate the issues and try to confuse Giles and the court, as is their habit.

While this issue is not of particular relevance to the defendants’ summary judgment application, Ms Giles’ submissions also canvassed at some length why she should be entitled to aggravated and/or exemplary damages.

In relation to the question of whether Ms Giles’ claims against the lawyer defendants are precluded by the principle of advocates’ immunity, Ms Giles submitted, in summary, as follows:

(a) advocates’ immunity only provides a defence where the lawyers are defending actions brought by their own clients;

(b) the quarry defendants have given evidence that they have taken the advice of the lawyer defendants;

(c) lawyers have a legally binding duty to be honest, truthful and sincere; and

(d) it would be unfair if the lawyer defendants could be shielded from responsibility for their conduct by reason of the principle of advocates’ immunity.

Ms Giles referred to the decision of the Court of Appeal in Yara Australia Pty Ltd & ors v Oswal[16] and Baulch v Lyndoch Warrnambool,[17] and various publications concerning the principles of advocates’ immunity, the obligations of legal practitioners under the CPA, and the interaction between the principles of advocates’ immunity and s 29 of the CPA. She observed that:

Australia has a history to [sic] taking its stand in law from the United Kingdom, and the UK has abolished the advocates’ immunity.

[16](2013) 41 VR 302.

[17][2010] VSCA 30.

Ms Giles’ submissions commented upon the other issues raised by the defendants in their submissions, as follows:

(a) the annexure to the amended statement of claim is not intended to disclose a cause of action: rather, it provides full particulars of damage and personal injury;

(b) the proceeding is not seeking to relitigate the issues in any previous proceeding: rather, it is the conduct of the defendants in those proceedings which has caused her damage and personal injury;

(c) there is no valid reason why the proceeding has no real prospect of success: there are seven causes of action, some of which have been suggested by the defendants;

(d) adequate particulars have been provided: what the defendants actually seek is the evidence she will rely upon at trial;

(e) Ms Giles submitted as follows:

The reality is that the defendants do not want to have to face what they have done and are trying anything they can to get out of having to do so. The defendants are trying to put up any barriers they can to having the court hear and make a determination in the interests of justice and fairness, against them for what they have done. Their claims prove beyond any doubt that the defendants have absolutely no care or concerns about what they have done to Giles, particularly given that they had each deliberately personally and collaboratively abused the court’s processes, particularly (but certainly not limited to) during the first year of their case in order to bully and intimate her for ulterior purposes, causing her to suffer greatly.

The categories of abuse of process are not closed.
Those categories include the following circumstances:
(a)where the court’s processes are invoked for an illegitimate or collateral purpose;
(b)where the use of the court’s procedures would be unjustifiably oppressive to a party; and
(c)where the use of the court’s procedures would bring the administration of justice into disrepute.

The category in (a) above has also been described as where the predominant purpose of bringing the proceeding is improper.
The question of whether the purpose of bringing a proceeding is improper must be assessed in the context of statements in the authorities that the legitimate purpose for bringing a proceeding is the protection or vindication of particular legal rights or immunities.
The question of what constitutes an improper purpose was recently considered by the Privy Council in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd. Lord Wilson JSC approved of a statement by Isaacs J in Varawa v Howard Smith Co Ltd that a purpose is improper if it is ‘entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate’. His Lordship stated that a purpose of achieving victory in the proceeding ‘with all such consequences as may flow from it’ is not improper. Lord Sumption JSC described an improper purpose as a ‘purpose of obtaining some wholly extraneous benefit other than the relief sought and not reasonably flowing from or connected with the relief sought.’
There is a distinction between bringing proceedings to a successful conclusion, so as to take advantage of an entitlement or benefit which the law gives the litigant in that event, and bringing proceedings when the purpose is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.

While the current application is not an application of the kind considered by the Court of Appeal in Treasury Wines,[64] the principles above are relevant to determining whether Ms Giles has a viable claim that the quarry defendants, in bringing the defamation proceeding, had engaged in an abuse of process.
[64]Ibid.

Ms Giles claimed that the defendants engaged in an abuse of process and/or attempted to pervert the course of justice when they commenced the defamation proceeding, as they sought to use, and did use, court procedures ‘for a purpose unrelated to the objectives for which they had purportedly taken action’. She said the purpose of these claims was to bully and intimidate Giles into removing the entirety of the website, and to assist the quarry defendants to gain access to her assets to force Giles and her related parties from the property and the area, because the quarry defendants knew they had the power to stop the quarry over the water issues.

As can be seen from the above, a person alleging that a plaintiff in a proceeding is engaging in an abuse of process because that action has been brought for an illegitimate or collateral purpose has a high bar to clear. In the current case, Ms Giles would have to establish that the purpose of the quarry defendants (or at least the predominant purpose)[65] in bringing the defamation proceeding was to shut down the website and/or to drive her from the neighbourhood, as opposed to seeking redress for words that were found by Pagone J to be defamatory, and ‘ought never to have been made’.[66] Further, a plaintiff in an action for abuse of process is required to prove not only an improper purpose, but also deployment of the relevant litigation in furtherance of the improper purpose, distinct from the pursuit of the proceeding itself in the ordinary way.[67]
[65]Williams v Spautz (1992) 174 CLR 509, 529.
[66][2013] VSC 268 [58].
[67]Maxwell-Smith v S & E Hall Pty Ltd (2014) 86 NSWLR 481 [54].

The difficulty with Ms Giles’ allegations that the question of the quarry defendants’ motivation in bringing the defamation was squarely addressed by McDonald J in the s 29 application. The relevant section of his Honour’s reasons are reproduced below:

Mrs Giles contends that the plaintiffs were dishonest as to the real reasons for bringing their claim against her. Mrs Giles contends that the real reason was to have the entire website, removed from the internet, as opposed to removing the particular words which were the subject of the plaintiffs’ claims in defamation. Mrs Giles contends that the failure of the plaintiffs to honestly disclose the real reason for bringing the claim against her was a breach of their overarching obligation under the Act to be honest and truthful.
Mrs Giles’ website was the vehicle by which she published seriously defamatory statements in respect of the plaintiffs. If the plaintiffs wanted to have the website shut down that is hardly surprising. Mrs Giles closed the website. It was not done as a result of any court order. Mrs Giles could, if she had been minded to do so, simply have removed from the website the defamatory statements.
Mrs Giles alleges a breach of the overarching obligations by reason of the plaintiffs’ failure to disclose their intention of closing the website. Exhibit D5 includes candid statements on behalf of the plaintiffs disclosing their desire to have the website shut down. In his opening submission before Pagone J, Mr Southall referred to correspondence from the plaintiffs’ solicitor to Mrs Giles on 19 August 2011. That correspondence sought the removal of the website as a matter of urgency. Mr Jeffrey gave evidence in chief to the effect that his purpose in instructing Mr Smith, his solicitor, to send a letter to Mrs Giles was ‘for the purpose of trying to stop the website’. Plainly, there was no attempt on the part of the plaintiffs to conceal their desire to have the website removed. Mrs Giles’ contention that the plaintiffs were dishonest by failing to disclose their intention to have the website removed is misconceived.
Mrs Giles also complains that:
In spite of the entirety of the website not having been pleaded, the plaintiffs repeatedly refer to the entire website being on the internet for over a year and that it was the entire website that caused the plaintiffs’ problems and concern…

It is difficult to understand what point Mrs Giles seeks to advance. Plainly, the website was on the internet for over a year. What is equally clear is that the claim for defamation is confined to particular defamatory statements which were published by Mrs Giles via the website.
Mrs Giles summarises her position on this issue as follows (citations omitted):
The plaintiffs admitted that the principal purpose of the action was the removal of the entire website (in spite of having admitted that it was not defamatory). I contend they have tried to use this to get yet further unwanted financial benefit for themselves, and to try to drag me down further than they already had. Truth appears to be a very capricious matter to them. The removal of the words they specified as having found offensive (although true) was a ruse by which they ultimately obtained their real objective - the removal of the entire website.
The plaintiffs presented to the Court a statement of claim that purports to limit the case to defamation, relating to a very limited scope a small number of words on a very large website. However, they subsequently admitted in testimony and submissions that the removal of the entire website was the real purpose of the action.
The small number of publications were, in fact, innocuous, and the action was not about them at all. In addition I have proved that it was the entire website that the plaintiffs wanted pulled down and that this purported action in relation to defamation was the means by which they tried to accomplish their ultimate goal and hidden agenda and by which means they sought to penalise me for revealing who they were and what they were doing, or not doing, as the case may be.

A number of observations may be made regarding the matters set out above. First, as with much of the material filed in support of her application, Mrs Giles has used the affidavits which she has filed in support of her application as a vehicle to repeat disparaging statements against the plaintiffs. Second, her statement that the publications on the website ‘were in fact, innocuous’ discloses her failure to accept the findings of the Court of Appeal that the publications on the website constituted a serious defamation of the plaintiffs. Third, Mrs Giles fails to establish how any conduct on the part of the plaintiffs was in any way false and misleading.[68]

[68][2016] VSC 2 [20]-[25].

The findings of McDonald J above were subject to a direct challenge in Ms Giles’ application for leave to appeal. In its reasons[69] the Court of Appeal referred to one of Ms Giles’ proposed grounds of appeal as being that McDonald J failed to give any or sufficient weight to, among other things:

the [quarry defendants’] dishonest conduct and false testimony, including in relation to their reasons for taking action against [Ms Giles].[70]

[69][2016] VSCA 314.

[70]Ibid [77].

The Court of Appeal upheld the findings of McDonald J with respect to this ground, stating as follows:

McDonald J’s substantive judgment indicates that he carefully considered the applicant’s contentions that the respondents had lied and had breached their overarching obligations in the defamation proceeding. He found that the respondents had not deliberately lied on oath about any matter and that they had not breached any of their overarching obligations. Having reviewed the evidence relied upon by the applicant in support of her contentions, we are of the view that McDonald J made the correct decision.[71]

[71]Ibid [154].

Accordingly, Ms Giles’ attempt to re‑agitate the issue of the motivation of the quarry defendants in bringing the defamation proceeding by alleging that they had engaged in an abuse of process is itself an abuse of process.

However, Ms Giles’ allegation that one of the quarry defendants’ motivation in bringing the quarry proceeding was, in effect, to ruin her financially and to force her from her property, has not been directly raised in any proceeding before, save perhaps in the bankruptcy proceeding. In my view, it was unreasonable of her not to do so. While the amended statement of claim and the other evidence filed on behalf of Ms Giles in the current application does not disclose when Shapher sold the property, a transfer of land document exhibited to an affidavit sworn by the solicitor for the lawyer defendants suggests the property was sold in March 2014, over a year before the hearing of the s 29 application, such that she would have known that the conduct she sought to lay at the feet of the quarry defendants had caused her loss (noting that the compensation claimable under s 29 of the CPA is not limited to compensation for legal costs.) Further, it must also have been apparent to Ms Giles at the time of the hearing of the s 29 application that she was going to be required to pay substantial sums to the quarry defendants on account of damages and costs, the hearing of the s 29 application having post-dated the decision of the Court of Appeal with respect to the defamation proceeding, which substantially increased the damages payable to Messrs Curnow and Jeffrey. If Ms Giles had genuinely held the view that the bringing of the defamation proceeding was an abuse of process because the quarry defendants wanted to ruin her financially and to force her from the property, then that allegation should have been made in the defamation proceeding and/or the s 29 application.

Ms Giles, in contending that the defamation proceeding was brought for a collateral purpose, appears to be conflating the consequences of her disputation with the quarry defendants and the motives of the quarry defendants: that is, because the litigation has ruined her financially and she had to sell the property, that must have been what the quarry defendants intended to occur. With respect, that approach is consistent with the flavour of the entirety of the allegations made by Ms Giles against the defendants in this proceeding.

Finally, for completeness, both Deputy Registrar Ryan and the Judge Burchardt of the Federal Circuit Court held that the service of a bankruptcy notice by Messrs Jeffrey and Curnow on 2 December 2017 was not an abuse of process,[72] and they had legitimately invoked the insolvency jurisdiction of the Federal Circuit Court.
[72]Jeffrey v Giles [2018] FCCA 2073.

Malicious prosecution

Ms Giles claims that the defendants commenced and continued a malicious prosecution by bringing and pursuing their claims in the defamation proceeding, including their discontinued claims for injurious falsehood and misleading and deceptive conduct, and their unsuccessful claim for aggravated damages. The High Court summarised the elements of malicious prosecution in A v State of New South Wales.[73]

For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause.[74]

[73](2007) 230 CLR 500.

[74]Ibid, 502 -503.

As noted above, there is some uncertainty as to whether the tort of malicious prosecution can apply to civil proceedings under Australian law,[75] and I have proceeded on the basis that the cause of action can so apply, as has been accepted in the United Kingdom in Willers v Joyce.[76] However, in pursuing a claim for malicious prosecution in relation to the defamation proceeding, Ms Giles faces an insurmountable hurdle, in that the defamation proceeding was not resolved in her favour, and the appeal process has been exhausted. The elements of the cause of action have not been satisfied, and cannot be satisfied.
[75]See Perera v Genworth Financial MortgageInsurance Pty Limited [2019] NSWCA 10 [7], where Basten JA noted without comment the primary judge’s observation that it would be inappropriate to grant summary judgment on the sole basis that the relevant proceeding was a civil proceeding.
[76][2016] 3 WLR 477.

I do not consider the failure of the quarry defendants to obtain an award for aggravated damages in the defamation proceeding to give rise to any liability for malicious prosecution, nor does the original pursuit of their claims for injurious falsehood and misleading and deceptive conduct. The claim for aggravated damages was not a separate cause of action, it was merely a head of damage, which Pagone J held that the quarry defendants had not made out to his satisfaction. The question of whether the quarry defendants’ claim for injurious falsehood, and its subsequent discontinuance, was tainted by impropriety was comprehensively dealt with by McDonald J in the s 29 application, and Ms Giles has exhausted the appeal process in that regard. It is commonplace for parties to withdraw and amend claims during the course of civil litigation, often with cost consequences, as occurred during the pre-trial phase of defamation proceeding. I simply cannot see how the initial pursuit of the injurious falsehood and misleading and deceptive conduct claims could have caused Ms Giles loss and damage over and above the incurring of legal costs, and I am not the first to hold that view.[77]
[77]See [2016] VSC 2 [47] and [2016] VSCA 314 [71].

It does not appear from the amended statement of claim that Ms Giles alleges that the initiation of the bankruptcy proceeding was an abuse of process. However, if that is a claim that Ms Giles intended to pursue, I repeat my observations in paragraph 153 above.

Conspiracy to give false evidence.

I agree with the submissions advanced on behalf of the lawyer defendants that the principle of witness immunity, recently discussed and reinforced by the Court of Appeal in Bodycorp[78] precludes Ms Giles from maintaining any claim of this nature against the defendants. In Bodycorp,[79] the Court of Appeal refused to grant leave to appeal against a decision of a County Court judge to grant summary judgment in favour of parties and witnesses in previous proceedings involving the applicants for leave to appeal, along with those parties’ lawyers. The applicants had pleaded that the parties in the previous proceeding, along with their lawyers, and a number of witnesses, were all parties to a conspiracy to injure the applicant by the unlawful means of perverting the course of justice by procuring and giving false evidence. The primary judge had granted summary judgment in favour of the witnesses and the lawyers on the basis that the principle of witness immunity precluded any claim based upon their conduct as witnesses, and on the basis that the principle of witness immunity extends to defeat a claim based upon an alleged conspiracy to give or procure the giving of false evidence. She relied upon the decisions of the High Court in Cabassi v Vila (‘Cabassi’),[80] and D’Orta‑Ekenaike v Victorian Legal Aid (‘D’Orta’),[81] including the following statement of Rich ACJ in Cabassi[82] (citations omitted):

An action by the defeated party cannot, for equally good reasons, be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re‑examined by a trial of the witness’ testimony in a suit against him. The procedure, if permitted, would encourage and multiple vexatious suits and lead to interminable litigation.[83]

[78][2018] VSCA 174.

[79]Ibid.

[80](1940) 64 CLR 130.

[81](2005) 223 CLR 1.

[82](1940) 64 CLR 130.

[83]Ibid, 139.

The primary judge also referred to the following statement of McTiernan J in Cabassi:[84]

But, even if a conspiracy to commit a criminal act could add to or change the tortious quality of the act and in that way provide ground for an action other than that which may lie for the act itself, such an action would not lie if the execution of the conspiracy consisted in the giving of evidence by a witness in the course of a judicial proceeding. It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.[85]

[84]Ibid.

[85]Ibid, 144.

The primary judge also referred to the following statement by the plurality from D’Orta,[86] which, among other things, makes it clear that the immunity extends to steps preparatory to the alleged giving of false evidence:

Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party’s favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others – the judge, the witnesses, advocates – anyone other than the party whose case has been rejected.
This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the 16^th and 17^th centuries.

From as early as the 16^th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done or is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps.[87]

[86](2005) 223 CLR 1.

[87]Ibid, 18-19.

The Court of Appeal rejected the applicants’ contention that ‘the doctrine of witness immunity does not apply to a conspiracy to induce a witness to give evidence, or conduct amounting to perverting the course of justice by procuring or inducing a witness to lie’,[88] stating:

We wholly agree with the primary judge’s reliance on those statements of the High Court. The effects of those (and other) statements in Cabassi and D’Orta-Ekenake is that witness immunity extends to civil claims for damages against all persons alleged to have induced or procured a witness to lie in his or her evidence in court, however the cause of action is framed.[89]

[88]Bodycorp [33].

[89]Ibid.

The Court of Appeal also found that the applicants’ contention that the witness immunity did not apply to the conduct of legal practitioners, insofar as they were said to have been acting pursuant to a conspiracy to procure false evidence, had no prospects of success.[90]
[90]Ibid [47].

Accordingly, the allegations against the defendants, insofar as they concern the alleged giving or procuring of false evidence at the trial of the defamation proceeding, and in the course of the bankruptcy proceeding, including the taking of any steps preparatory for the giving of such evidence, have no real prospects of success.

Defamation and injurious falsehood

Ms Giles has not brought any claims under the headings of ‘defamation’ or ‘injurious falsehood’, However, for completeness, given the nature of the allegations in the amended statement of claim, and the multiple references to the defendants having ‘defamed’ Ms Giles, and to the reputational damage alleged to have been suffered by Ms Giles, I have considered whether she may have viable claims of this nature. I have concluded that she does not have any viable claims.

The amended statement of claim contains a number of references to the defendants having defamed Ms Giles in the VCAT proceedings and the defamation proceeding (see, for example, paragraphs 52 to 54, 63, and 77 of the amended statement of claim, and part A-1 of the annexure to the amended statement of claim). However, Ms Giles makes no express claims for defamation. Nor could she. The conduct complained of took place almost exclusively in the context of the conduct of the defamation proceeding. That much is clear from part A-1 of the annexure to the amended statement of claim, which refers to false allegations being made against her being available in judgments, transcripts and other court documents. To the extent allegations are made concerning what was said by the quarry defendants at community meetings, while there is no detail as to when these community meetings occurred, I suspect that, given the chronology of events regarding the development of the quarry, Ms Giles would be hopelessly out of time to bring any claim for defamation, noting the one‑year limitation period for claims for defamation under the LAA.

While Ms Giles refers to the defendants making false statements about her throughout the amended statement of claim, even setting aside the fact that these false statements were made in the context of ongoing litigation, any claims by Ms Giles against the defendants would have no real prospects of success, as she would be unable to satisfy the elements of an action for injurious falsehood. In order to maintain an action for injurious falsehood, Ms Giles would need to establish:

(a) a false statement of and concerning the plaintiff’s goods or business;

(b) publication of that statement to a third person;

(c) malice on the part of the defendant; and

(d) proof by the plaintiff of actual damage.[91] (emphasis added)

[91]Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388.

Here, any claim by Ms Giles falls at the first hurdle, in that, on the basis of the facts pleaded by her in the amended statement of claim, she would be unable to establish that the defendants had made false statements of and concerning her goods or business. The statements said to have been made by the defendants (or any of them) regarding Ms Giles concern her personal conduct, not her goods or business. In any event, any statements by the defendants or any of them which could otherwise be found to have amounted to an injurious falsehood would, if made in the course of court proceedings, be protected by witness immunity.[92]
[92]Hamod v State of New South Wales (No 12) [2009] NSWSC 242 [210].
Other potential claims

On the basis of the above reasons, the only allegations made by Ms Giles in the amended statement of claim which could found a viable cause of action, and would not be precluded by any lack of standing, witness immunity, advocates immunity, estoppel, or the various species of abuse of process, are possible claims with respect to the conduct of the quarry defendants at community meetings and in other public places, and statements said to have been made by the quarry defendants outside the context of the defamation proceeding. It may well be that Ms Giles, at least theoretically, may be able to bring an action for intentional infliction of mental harm and/or defamation with respect to that conduct and/or those statements. The question remains whether this Court should permit her to do so in this proceeding. On balance, I think not.

In the amended statement of claim, Ms Giles makes numerous and wide ranging claims about the conduct of the defendants. The allegations regarding the conduct of the quarry defendants outside the litigation context are relatively minor in the scheme of things, and are summarised in the table below.

Para Heading Allegation

31(a)

Abuse of Process and/or attempting to pervert the course of justice

Jeffrey, Curnow and Casacir, with the later assistance of Southall, by their conduct at, or in relation to, community meetings caused Giles to feel threatened, intimidated, embarrassed, defamed, repudiated, belittled, ashamed and humiliated … (note, this paragraph refers to ‘minutes of 12 July 2013).

31(b)

as above

Jeffrey, Curnow, Casacir and Smith, threatened Giles over the water issues, and against taking further action to make Jeffrey, Giles over the water issues, and against taking further action to make Jeffrey, Curnow and Casacir comply with legislation, their permit and work authority and with their own undertakings …

31(c)

as above

Jeffrey made Giles feel intimidated and threatened by blocking public roads (including the road upon which Giles lived), following her around on the public roads and taking photographs (including when others were with her ) …

31(d)

as above

Jeffrey, Curnow and Casacir’s employees threatened Giles over the radio …

77

Damage to Giles by way of obstructing justice through aggravating the damage.

(d) the defendants have lied to Giles and to others lied about Giles.

(e) the defendants have defamed, bullied and intimidated Giles.

Annexure

Part A – I

The damage and personal injury to Giles’ reputation

Without any evidence, and against the true facts, their intention conduct has caused Giles to suffer injury to credit and reputation by:

(q) now falsely being known as a mad woman: this fraudulent allegation by Jeffrey, Curnow and Casacir is available through the Government department previously known as the Department of Primary Industry and personally from Anne Bignell or through FOI.

(23) now falsely being known as a person who did not accept VCAT or court judgments and outcomes and who just kept on complaining: this fraudulent allegation is available in court documents and transcripts, as well as in minutes of community meetings.

As indicated earlier in these reasons, the amended statement of claim does not specify when events referred to in the above table occurred, save for there being a reference to minutes of a meeting in July 2013. However, I can infer from the chronology of events that, to the extent that any statements made by the quarry defendants are said to have been defamatory, any claim by Ms Giles for defamation would be hopelessly out of time. Section 5(1AAA) of the LAA provides that an action for defamation must be brought within one year of the date of the publication of the allegedly defamatory matter. Section 23B of the LAA enables a person to apply to extend the period of limitation for up to three years, but the authorities make it clear that the hurdle for a party seeking an extension of time under s 23B of the LAA is set high.[93] Even on the evidence before me, I can conclude that such an application would have very limited prospects of success, even if the relevant conduct fell within the three year time frame referred to in s 23B of the LAA, that is, after 19 September 2015.
[93]Section 23B of the LAA provides that the court must grant an extension of time ‘if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year of the date of publication.’ In Brott v FGD Pty Ltd & ors [2018] VSC 182, I referred to the decision of Beach J in Casley v Australian Broadcasting Corporation [2013] VSC 251, and stated (at [13]) as follows:
… while the type of circumstances which might be taken into account in these applications is not limited, the language of s 23B of the [LAA] means that those circumstances must be quite compelling for the Court to achieve the necessary degree of satisfaction before an extension of time is to be granted.

I suspect that any claim by Ms Giles to the effect that some or all of the conduct referred to in the above table amounted to conduct which rendered the quarry defendants, or any of them, liable for the tort of intentional infliction of mental harm would also be statute barred. I cannot, however, on the current state of the pleading, be entirely certain of that, as Ms Giles makes no reference to when she suffered any psychiatric disorder, or when Ms Giles discovered that she suffered from any psychiatric disorder. However, given the manner in which Ms Giles has put her claims in the amended statement of claim, it would be very difficult, forensically, to disentangle the impact of the conduct referred to in the table above from the impact upon her of the totality of the conduct referred to in the amended statement of claim.

It is clear from the amended statement of claim that to the extent that Ms Giles considers that she has suffered personal injury and financial loss, it has been caused by the opening and operation of the quarry, her lack of success in the VCAT proceedings to prevent the opening of the quarry and/or to restrict the operations of the quarry, her inability to successfully defend the defamation proceeding, and the financial, health and lifestyle consequences of the outcome of the litigation between her and the quarry defendants. However, for the reasons above, various legal principles and immunities, largely founded on the overarching principle that the public interest in the administration of justice requires that there be finality in litigation, preclude Ms Giles from bringing claims concerning the initiation and conduct of that litigation. To dismiss the preponderance of the claims in the amended statement of claim, while allowing Ms Giles to now turn around and say that her loss and damage was in fact caused by the conduct referred to in the above table, would be unjustifiably oppressive to the defendants.

Conclusion

The time that has been taken to deliver these reasons and the length of these reasons may indicate to some that the number of allegations and causes of actions referred to in the statement of claim means that this proceeding is not amenable to summary disposition. However, simply because the question of whether any proceeding, or any claims in a proceeding has no real prospect of success requires some detailed analysis of the factual matrix, the subject matter and conduct of other proceedings, and the relevant authorities, a finding that the proceeding has no real prospect of success is not precluded. Such an approach is consistent with the overarching purpose of the CPA.

Accordingly, I will dismiss the proceeding, on the basis that Ms Giles’ claims have no real prospects of success. For completeness, for all of the foregoing reasons, this is not the occasion for the exercise of the Court’s discretion under s 64 of the CPA.

SCHEDULE OF PARTIES

S ECI 2018 00998

VIRGINIA GILES Plaintiff

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DAVID JEFFREY First Defendant

THOMAS CURNOW Second Defendant

CASACIR PTY LTD Third Defendant

KEN SMITH Fourth Defendant

ANTHONY SOUTHALL Fifth Defendant

Para	Heading	Allegation
31(a)	Abuse of Process and/or attempting to pervert the course of justice	Jeffrey, Curnow and Casacir, with the later assistance of Southall, by their conduct at, or in relation to, community meetings caused Giles to feel threatened, intimidated, embarrassed, defamed, repudiated, belittled, ashamed and humiliated … (note, this paragraph refers to ‘minutes of 12 July 2013).
31(b)	as above	Jeffrey, Curnow, Casacir and Smith, threatened Giles over the water issues, and against taking further action to make Jeffrey, Giles over the water issues, and against taking further action to make Jeffrey, Curnow and Casacir comply with legislation, their permit and work authority and with their own undertakings …
31(c)	as above	Jeffrey made Giles feel intimidated and threatened by blocking public roads (including the road upon which Giles lived), following her around on the public roads and taking photographs (including when others were with her ) …
31(d)	as above	Jeffrey, Curnow and Casacir’s employees threatened Giles over the radio …
77	Damage to Giles by way of obstructing justice through aggravating the damage.	(d) the defendants have lied to Giles and to others lied about Giles. (e) the defendants have defamed, bullied and intimidated Giles.
Annexure Part A – I	The damage and personal injury to Giles’ reputation	Without any evidence, and against the true facts, their intention conduct has caused Giles to suffer injury to credit and reputation by: (q) now falsely being known as a mad woman: this fraudulent allegation by Jeffrey, Curnow and Casacir is available through the Government department previously known as the Department of Primary Industry and personally from Anne Bignell or through FOI. (23) now falsely being known as a person who did not accept VCAT or court judgments and outcomes and who just kept on complaining: this fraudulent allegation is available in court documents and transcripts, as well as in minutes of community meetings.

VIRGINIA GILES	Plaintiff
- and -
DAVID JEFFREY	First Defendant
THOMAS CURNOW	Second Defendant
CASACIR PTY LTD	Third Defendant
KEN SMITH	Fourth Defendant
ANTHONY SOUTHALL	Fifth Defendant

[2019] VSC 562

17 September 2019