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Hoser v Pelley

Hoser v Pelley

Case [2023] VSCA 1 20 January 2023

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2022 0031

RAYMOND HOSER	First Applicant
and
KOTABI PTY LTD (ACN 007 395 048)	Second Applicant
v
MARK DAVID PELLEY	Respondent

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JUDGES:	EMERTON P and J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 January 2023
DATE OF JUDGMENT:	20 January 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 1
JUDGMENT APPEALED FROM:	[2021] VCC 1425 (Judge Smith)

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PRACTICE AND PROCEDURE – Application for leave to appeal – Security for costs – Impecuniosity – Applicable principles – Where delay in making application for security for costs – Where lack of evidence of financial position of applicants – Supreme Court (General Civil Procedure) Rules 2015 r 64.38(2) – Mikkelsen v Li [2022] VSCA 126; Wu v Bi [2022] VSCA 22, discussed – Application for security for costs dismissed.

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Counsel
First Applicant:		In person
Second Applicant:		No appearance
Respondent:		Mr I Robertson
Solicitors
Applicants:	-
Respondent:	Robertson Legal & Conveyancing Lawyers Pty Ltd

EMERTON P
J FORREST AJA:

Introduction and background

The first applicant, Raymond Hoser, is a professional snake catcher whose activities include catching and removing snakes found in suburban Melbourne, training dogs to avoid snakes, and staging snake and other reptile demonstrations at schools, school fetes and children’s parties.
Mr Hoser carries on his business through the second applicant entity, Kotabi Pty Ltd (‘Kotabi’). Mr Hoser is and was at all material times the sole director, secretary and shareholder of Kotabi.
The respondent, Mark Pelley, is also a professional snake catcher engaged in similar activities. His business competes with Mr Hoser’s business.
In or about 2017, Mr Pelley began to advertise his services online via Google, and subsequently via Facebook. This aggrieved Mr Hoser, who was of the view that the advertisements contained terms which were similar to, and in some cases identical with, registered trademarks owned by him. Mr Pelley disputed this. Mr Hoser began to publish allegations about Mr Pelley on Facebook and elsewhere accusing him of, among other things, trademark infringements, theft, scamming and violent sexual offending.
On 22 March 2019, Mr Pelley commenced a proceeding in the County Court of Victoria seeking damages (including aggravated damages) and a restraining order in respect of 17 publications that appeared on Facebook and other communications or social media sites during the period 5 April 2018 to 29 December 2019.
The trial of the proceeding commenced before Judge Smith sitting alone on 18 May 2021 and was conducted over 25 sitting days. Mr Pelley was represented by counsel and Mr Hoser appeared on behalf of himself. The trial judge, his Honour Judge Smith, refused Mr Hoser’s application to appear on behalf of Kotabi.
On 3 February 2022, Judge Smith published his reasons for judgment, finding in favour of Mr Pelley.[1] His Honour was not satisfied that all of the publications in issue were likely to enable a reasonable reader to identify Mr Pelley as the person referred to in them.[2] The judge found that those which did…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoser v Pelley

Details

AGLC: Hoser v Pelley [2023] VSCA 1
Case: [2023] VSCA 1
Decision Date: 20 January 2023

CaseChat Overview and Summary

The case of Hoser v Pelley involved an application for leave to appeal against a decision relating to security for costs. The applicants, Hoser and another, sought an order from the court for the respondents to provide security for costs associated with the litigation. This appeal was heard in the Supreme Court of Victoria. The applicants contended that they were unable to afford the costs of the litigation, which led them to seek security for costs from the respondents. This request was grounded on the applicants' claim of being impecunious, meaning they lacked sufficient financial resources.

The court was required to determine whether the applicants' application for security for costs was appropriately made, considering the delay in its submission and the absence of evidence regarding the applicants' financial status. The legal principles applied to such applications included those set out in the Supreme Court (General Civil Procedure) Rules 2015, particularly rule 64.38(2), which governs applications for security for costs. Additionally, the court considered relevant case law, such as Mikkelsen v Li and Wu v Bi, which provided guidance on the principles applicable to these types of applications.

The court found that the applicants' delay in making the application for security for costs, coupled with the lack of evidence of their financial position, undermined the merits of their application. The court concluded that the applicants had not discharged the onus of establishing that they were entitled to an order for security for costs. Therefore, the application was dismissed. The reasoning was that the delay and insufficient evidence rendered the application unjust and not in line with the established legal principles.

The court's final orders were to dismiss the application for leave to appeal and for the applicants to pay the respondents' costs of the application. This outcome was based on the court's determination that the applicants had not met the necessary criteria for obtaining security for costs, and thus the application was deemed inappropriate.

Orders