Iloski v State of Victoria & Anor

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0071

ROBERT ILOSKI

DANIEL ILOSKI

Applicants

STATE OF VICTORIA

COMMONWEALTH BANK OF AUSTRALIA (ACN 123 123 124)

Respondents

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JUDGES:	J FORREST AJA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 March 2024
DATE OF JUDGMENT:	13 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 32
JUDGMENT APPEALED FROM:	[2023] VSC 321 (Justice Ginnane)

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PRACTICE AND PROCEDURE – Mandatory orders – Tort claims – Order sought for the return of goods removed by mortgagee when taking possession of a property – Whether judge failed to place weight on an interim injunction ordered by the Victorian Civil and Administrative Tribunal restraining the mortgagee – Whether judge failed to place weight on the fact that a home and contents insurance claim in relation to the property had been approved – Mortgagee not a party to the proceeding – No error found in judge’s reasoning – Leave to appeal refused.

EVIDENCE – Where applicant had regained possession of some goods as a result of a break-in at a storage facility – Whether judge failed to place weight on the fact that the charges against the applicant relating to the break-in were withdrawn as evidence that the goods were the property of the applicant – No error found in judge’s reasoning – Helton v Allen (1940) 63 CLR 691, considered – Leave to appeal refused.

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Counsel
Applicants:		In person
Respondents:		Mr S Payne, for the first respondent Ms A Gaber, for the second respondent
Solicitors
Applicants:
Respondents:	Victorian Government Solicitors Office, for the first respondent Gadens, for the second respondent

J FORREST AJA:

Pursuant to r 64.15 of the Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’), these applications for leave to appeal were heard by myself, sitting as a single judge of the Court of Appeal, on 12 March 2024.
I handed down these reasons at the hearing on 13 March 2024 in substantially the same form as this published version.
The applicant, Robert Iloski, and his brother Daniel Iloski are the plaintiffs in a proceeding brought against the State of Victoria in this Court. They allege that Victoria Police officers in September 2019, in the course of the execution of a warrant of possession (the ‘warrant’), engaged in trespass on their property at Thomastown (the ‘property’), trespass to goods and conversion, detinue, unlawful arrest, false imprisonment, assault, battery, private nuisance, malicious prosecution and abuse of process.
The trial of Mr Iloski’s proceeding (along with that of his brother) is set down for hearing in this Court on 29 July 2024.
On 13 September 2022, Mr Iloski issued a summons (the ‘summons’) seeking interlocutory relief, in relation to the return of his goods allegedly seized in the course of the execution of the warrant. The respondents to the summons are Victoria Police and the Commonwealth Bank of Australia (‘CBA’) — which is not a party to the proceeding.
It is not in issue that most of the goods seized in the course of the execution of the warrant are currently in the possession of CBA and are held at a storage facility (the ‘stored goods’).[1]
[1]This does not include the goods that were removed from the storage facility during a break-in allegedly conducted by the applicant (as set out further below).
The summons was heard before Ginnane J on 8 June 2023. The judge handed down reasons and made an order dismissing the summons on the same day.[2] Mr Iloski now seeks leave to appeal that order.
[2]Iloski v State of Victoria [2023] VSC 321 (‘Reasons’).
For the following reasons, I have concluded that there was no error on the judge’s part and that the application will be dismissed.

Background to the claim

It would serve no purpose to traverse in any detail the facts associated with this case, however I will briefly refer to several matters relevant to the determination of this application.
In 2016, CBA issued a proceeding in the County Court against the registered proprietors to take possession of the property. Mr Iloski was not a party to this proceeding. After a trial in 2018, orders were made on 19 October 2018 by Judge Cosgrave that CBA recover possession of and then sell the property.
On 17 and 18 September 2019, the warrant was executed. As a result, CBA took possession of the property and arranged for removal of the goods present at the property. The circumstances surrounding the execution of the warrants form the basis for the proceeding in this Court.
On 18 September 2019, Mr Iloski obtained an ex parte interlocutory order from the Victorian Civil and Administrative Tribunal (‘VCAT’) restraining the landlord ‘and the landlord’s servants or agents’ from obtaining or attempting to obtain possession of the property. The order did not name CBA, and it was subsequently joined to the VCAT proceeding on 24 September 2019.
On 1 October 2019, the VCAT order was vacated and the proceeding was struck out for want of jurisdiction.
On 14 October 2019, Mr Iloski, despite not being a party to the County Court proceeding, issued a summons to CBA seeking orders for the return of the stored goods. The summons was heard by Judge Woodward on several occasions between October and December 2019. On 6 December 2019 the judge made orders dismissing the summons.
In around July 2020, following reports of a break-in at the facility where the stored goods were apparently located, members of Victoria Police conducted a search of the property. Several items were taken from the property and, as a consequence, a criminal proceeding in the Magistrates’ Court was instituted against Mr Iloski. The relevant charges were withdrawn on 28 March 2023, and Mr Iloski has since been allowed to retrieve those items.

Mr Iloski’ s summons

The judge recited the essential terms of the summons as follows:
(1)An order compelling the CBA to do everything necessary to return goods to Iloski that were taken during the CBA’s action in taking possession of the property;
(2)An order compelling the State to cause the Chief Commissioner of Victoria Police to instruct his members not to repeat the events of 17-19 September 2019 by obstructing any person complying with Order 1; and
(3)Any another order the Court considered appropriate in the circumstances, so long as it did not negatively affect Iloski or interfere with Order 1.
Mr Iloski filed two affidavits (14 and 15 March 2023) in support of his summons — significant portions of which were excised by the judge.[3]
[3]Reasons, [6] and [7].
The judge heard and determined Mr Iloski’s application on 8 June 2023.

The judge’s reasons

The judge noted, at [8] of the Reasons, that CBA had, as part of the process of taking possession of the property, removed goods allegedly owned by Mr Iloski from the property. The judge also noted at [9] and [10] that these are now in storage, and there is a separate dispute (i.e. not part of this proceeding) as to their disposition.
As to the first proposed order, the judge held:
The first plaintiff also relied on r 37 of the Supreme Court (General Civil Procedure) Rules 2015, which provides that in any proceeding the Court may make an order for the inspection, detention, custody or preservation of any property, whether or not it is in the possession, custody or power of a party. Rule 37 is particularly directed at the preservation of property, and there is no evidence here of a risk to the goods that are in storage. The plaintiffs have not pleaded a claim against [CBA] which would justify an order being made that it deliver the goods to both or either of them. In most circumstances, an applicant for an order under r 37 must identify a legal or equitable right which provides the foundation for an order of preservation or other order under that rule. The plaintiffs have not done that in their revised amended statement of claim.
What is more, [CBA] now claims that it has a lien or a security over the goods that are in storage, although no submissions of substance were put about that security.
In all the circumstances, Mr Robert Iloski has not established his entitlement to the orders sought in paragraph 1.[4]
[4]Reasons, [13]–[15] (citations omitted).
As to the second proposed order the judge held:
The second paragraph of the summons seeks orders that the person ‘having conduct for the defendant’ be required to cause the Chief Commissioner of Victoria Police to issue the instructions I have mentioned. This proposed order cannot be made because there is no basis for this Court to order or direct the ways in which Victoria Police should carry out its duty. The Court's role is generally limited to circumstances where police action has been taken or threatened, and a plaintiff brings a claim contending that actions already taken were unlawful. There is no evidence that officers of Victoria Police are proposing to repeat any actions that were previously alleged to have been engaged in. In those circumstances, there is no basis for making the order sought in paragraph 2.[5]
[5]Reasons, [16] (citations omitted).
As to the third proposed order, the judge held:
So far as paragraph 3 is concerned, that paragraph might provide a basis for making orders against [CBA], if the plaintiffs had pleaded a claim against it and succeeded in that claim or a substantial part of it. But, that is not the case here.[6]
[6]Ibid [17].

The proposed grounds of appeal

At the outset it should be observed that there is a fundamental problem with the relief sought in each of the orders in the summons.
First, in relation to proposed orders 1 and 3, the claims in the proceeding relating to ‘goods’ allege torts of trespass to goods and conversion and are confined to the actions of Victoria Police officers in September 2019 when they, pursuant to a court order, executed the warrant. Those officers are sued under the name of the State of Victoria in accordance with the Victoria Police Act 2013. CBA is not a party to the proceeding.
The relief sought by Mr Iloski in order 1 (and the related order 3) is in the form of a mandatory injunction against CBA alone and seeks delivery up of the stored goods, being those goods seized in the course of CBA taking possession of the property.
A right to obtain an interlocutory injunction is not a cause of action standing alone. The ability to seek and obtain an interlocutory injunction depends on the existence of an underlying cause of action in the proceeding and a relationship to the issues ventilated in the proceeding. There is no claim against CBA in the proceeding and the attempt to bring a collateral claim in this proceeding in the form of a mandatory injunction directed to CBA is impermissible — as the judge recognised.
So, as the judge correctly held, r 37 of the Rules was not engaged, as there was no proceeding against CBA and there was none which would justify an order being made that it (a non-party to the proceeding) deliver the stored goods to Mr Iloski.
Although the principle of abuse of process by collateral purpose was not raised by the respondents on this application, the orders sought in the summons calls that principle into play: ‘the tort of collateral abuse of process imposes liability on a litigant who intentionally misuses a legal process to obtain a collateral object outside the process’ lawful scope, and which subsequently causes damage to an opposing litigant’.[7]
[7]Hynard and Lerch, ‘The Tort of Collateral Abuse of Process’ (2021) 44(2) University of New South Wales Law Journal 714, 715.
As the judge recognised, there was no basis for the judge to make orders 1 or 3.
Further, it should be observed that Mr Iloski had the opportunity (probably through good fortune) to ventilate his claim against CBA in respect of the stored goods before Judge Woodward in the County Court. No explanation is provided in Mr Iloski’s material before either Ginnane J or this Court as to the reasons why he was not able to comply with the orders made by the judge which resulted in the striking out of the proceeding.
Second, as to proposed order 2, it is only necessary to state that the basis for it was, as the judge correctly observed, totally without foundation.
The above should dispose of this application. All the orders sought are an abuse of the process of this Court. However, given the effort that has gone into the preparation of the written cases I will deal with each proposed ground of appeal in precis.
Proposed ground one reads as follows:
The Judge did not place any weight on the fact that on the 18 September 2019 the Victorian Civil and Administrative Tribunal made a restraining order in the applicants favour. The restraining order restrains any interference with the tenants [applicants] goods which goods are the subject of custody the applicant sought under rule 37.01 of the Supreme Court (General Civil Procedure) Rules 2015.
The judge correctly placed no weight upon the interlocutory order made at VCAT on 18 September 2019. The order was made on an interim basis following an ex parte application made by Mr Iloski. As mentioned above, on 1 October 2019, VCAT struck out the application upon which the interim order of 18 September was premised and set that order aside. Accordingly, from that moment, any rights conferred on Mr Iloski by that order were extant.
There was no error on the part of the judge.
Proposed ground two reads as follows:
The judge did not place any weight on the fact that the applicant was successful in defending a claim at the Magistrates Court of Victoria where the prosecution made allegations that the goods the applicant seeks custody of were stolen goods after the applicant resorted to self help and regained possession of some of his goods from a storage facility at Epping. The Judge placed no weight on the fact that the Magistrates Court of Victoria struck-out/withdrew all of the allegations because the goods were not in fact stolen because it was found that the goods belong to the applicant.
There was no evidence before the judge as to what occurred at the Magistrates’ Court prosecution of Mr Iloski. Before me, it was agreed that the charges were withdrawn. In any event, even if Mr Iloski had secured an acquittal (which was not the case), that result could not lead to a binding finding or an estoppel in this proceeding to the effect that Mr Iloski was the owner of the goods. In Helton v Allen, the High Court held that an acquittal does not operate as an estoppel in a subsequent proceeding, nor is the fact of the acquittal admissible in evidence in that proceeding.[8]
[8](1940) 63 CLR 691, 710 (Dixon, Evatt and McTiernan JJ).
There was no error on the part of the judge.
Proposed ground three reads as follows:
The Judge delivered a wrong decision because he accepted the assertion or claim, which can never become a factual event, put forward by the Commonwealth Bank of Australia that the goods sought might belong to some other people. The applicant produced evidence to the contrary which proves that the Commonwealth Bank of Australia are well aware that the applicant is a tenant because the CBA provided him and his own family with an insurance claim cash settlement being for other goods which were damaged beyond repair and in the property on 6 August 2020 when the home was badly damaged by fire.
This ground fails for the reasons I stated earlier: it ventilates Mr Iloski’s dispute with CBA, which is irrelevant to this proceeding. The question of the ownership of the goods allegedly seized by Victoria Police officers is a matter of proof (by admissible evidence) by Mr Iloski at the trial of this proceeding against Victoria Police.
There was no error on the part of the judge.
Orders
The application for leave to appeal is refused and Mr Iloski must pay the respondents’ (being the State of Victoria and CBA’s) costs. Payment of the order for costs is stayed for six months.

[2024] VSCA 32

13 March 2024