Halantas v Halantas & Anor
[2007] VSC 60
•27 February 2007
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No 6644 of 2006
| JOHN MICHAEL HALANTAS | Plaintiff |
| v | |
| TSAMBIKA HALANTAS BILL VELOS (trading as Velos Lawyers) | Defendant Third Party |
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JUDGE: | WARREN CJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2007 | |
DATE OF JUDGMENT: | 27 February 2007 | |
CASE MAY BE CITED AS: | Halantas v Halantas | |
MEDIUM NEUTRAL CITATION: | [2007] VSC 60 | |
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PRACTICE AND PROCEDURE – Abuse of process – Proceedings instituted in Magistrates’ Court by solicitor – Proceeding instituted in Supreme Court by plaintiffs – Lest the situation present an issue estoppel, proceedings in Magistrates’ Court to be uplifted.
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APPEARANCES: | Counsel | Solicitors |
| No appearance for the Plaintiff | ||
| For the Defendant For the Third Party | Mr M J Bromley Mr S L Tatarka | Galbally & O’Bryan Middletons |
HER HONOUR:
This matter comes before me by way of appeal dated 19 February 2007 from orders made by a master. The matter proceeds before me pursuant to O 77, SCR as a hearing de novo.
At the outset, it is convenient to broadly describe the background circumstances that relate to this proceeding. The defendant, Tsambika Halantas, is an elderly widow. She consulted the third party, Bill Velos, a solicitor, in relation to a dispute between the defendant and her stepchildren arising from the will and property of the defendant's late husband. It transpired that, following a mediation between the parties affected by the will of the deceased husband, terms of settlement were allegedly agreed to between the parties that required the defendant to transfer funds to her late husband's children (her stepchildren) and also to make other arrangements with respect to the matrimonial home. It further transpired that the defendant refused to comply with the terms of settlement, and in due course the stepchildren, who are the plaintiffs in the Supreme Court proceedings, sued the defendant for specific performance of those terms of settlement. However, prior to the institution of the Supreme Court proceedings, the third party, Mr Velos, instituted proceedings in the Magistrates' Court to recover fees and disbursements from the defendant. Judgment in default of a defence was entered against Ms Halantas and in due course, as bankruptcy proceedings had been initiated, an application was made to set aside the default judgment. Orders were made accordingly and the position of Ms Halantas was reinstated, and I was informed that the matter is due to come on for hearing in the Magistrates' Court in April 2007.
In the Magistrates' Court proceeding, the defendant in the present proceeding, Ms Halantas, filed a defence. The defence, dated 25 July 2006, bears a striking similarity to the defence of Ms Halantas filed on 9 August 2006 in the Supreme Court proceeding. There is also a third party notice served by Ms Halantas against Mr Velos, dated 10 August 2006. It is apparent from the defence and the third party notice that, at a point in about August 2006, and certainly after the default judgment was set aside, Ms Halantas embarked upon a course of prosecuting a particular position with respect to her dispute with Mr Velos. However, at the same time, the proceedings in the Supreme Court continued, namely, whereby the stepchildren of Ms Halantas were seeking specific performance of the terms of settlement I have earlier adverted to.
The summons considered by the Master was in the nature of seeking a permanent stay of the third party proceedings in the Supreme Court as an abuse of process; alternatively, summary judgment for the third party. There was other alternative relief sought. The Master made orders, and it is appropriate before embarking upon the substantive appeal before me now to set out the orders made by the Master. The relevant parts provided:
"1. Subject to the defendant by 4 p.m. on 14 March 2007 either -
(a) taking all necessary steps to make an application to uplift the Magistrates' Court proceeding numbered U00079525 to this court to be heard together with this proceeding; or
(b) amending the defence to remove paragraphs 12 to 21;
Paragraph 1 of the third party's summons (the stay application based on abuse of process) is dismissed.
2.In the event that the defendant fails to comply with order 1, the third party proceeding is stayed until further order."
The Master also made other orders granting liberty to apply, leave to file and serve an amended statement of claim to the defendant, and other orders with respect to discovery. Otherwise, the Master adjourned the third party summons to 13 April 2007 and made orders with respect to costs.
In the course of argument before me, it was submitted that the proceedings in this court with respect to the third party, Mr Velos, constituted an abuse of process and should be stayed. Essentially it was put that it was an abuse of process to carry on without good reason two cases about the same thing in two, or even more, different places. Reliance was placed upon the observations in Moore v Inglis,[1] Logan v Bank of Scotland (No.2),[2] and also a more recent judgment in Thirteenth Corp Pty Ltd v State and Ors.[3]
[1](1976) 9 ALR 509, 514-15 (Mason J).
[2](1906) 1 KB 141, 150.
[3](2006) FCA 979 (Jessup J).
The circumstances of this matter are somewhat distinguishable from the circumstances that arose in those authorities. In the present proceeding, there are other parties, namely the plaintiffs, who are affected by the outcome of this proceeding. There is also the basis upon which the defendant in the present proceeding wishes to conduct her defence in this Court.
Giving consideration to the authorities, it is not apparent to me, in accordance with the usual principles, that the conduct of the case as proposed by the defendant vis-à-vis the third party amounts to an abuse of process. Indeed, the circumstances of the present case, as I say, are quite distinguishable from those that arise in the relevant authorities. There is an additional factor. From a practical perspective, if the third party notice was to be stayed, then the issue arises as to the impact on the Supreme Court proceedings. The prospect of these matters being determined in the Magistrates' Court also would raise the risk of a finding being made in the Magistrates' Court that may constitute an issue estoppel with respect to the proceedings in this court. Ultimately, I conclude that the appropriate course is to dismiss the appeal and refuse the application made as presently before me.
There is the matter as to the condition that the Master attached to the orders contained in paragraph 1, namely that the summons is dismissed subject to the alternative conditions: either the defendant taking all necessary steps in the Magistrates' Court to uplift the proceeding, or, alternatively, amending the defence to remove paragraphs 12 to 21 of the defence. Considering these conditions, the focus of the submissions before me was concerned with the prospect of the uplift of the proceedings from the Magistrates' Court to this Court. Obviously that is the pragmatic way in which to deal with these matters and there can be some sympathy with the approach taken by the Master. In all the circumstances, I would not interfere with paragraph 1 of the orders made by the Master. It may be that at a later point in time the parties wish to ventilate the form of the proceedings once all proceedings are on foot in this Court, if that is to be the case. In the event that the proceedings in the Magistrates' Court are not uplifted, then, of course, the summons would in any event be dismissed.
Accordingly, in my view, the orders of the Master are appropriate. Hearing the matter de novo as I do, I would dismiss the appeal, but I do so on the basis that I would make the same orders as made by the Master. Accordingly, the summons is dismissed.
The orders of the Court are as follows:
1. The summons is dismissed.
2. The appellant pay the respondents' costs of the summons.
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