Jafari v Alderuccio - [2015] VSC 684

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMERCIAL COURT

S CI 2011 01274

KOUROSH JAFARI AND ANOTHER	Plaintiffs
v
JOHN ALDERUCCIO AND BRUNO ALDERUCCIO (TRADING AS ALDERUCCIO SOLICITORS)	Defendants

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JUDGE:	ELLIOTT J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 NOVEMBER 2015
DATE OF JUDGMENT:	2 DECEMBER 2015
CASE MAY BE CITED AS:	JAFARI v ALDERUCCIO
MEDIUM NEUTRAL CITATION:	[2015] VSC 684

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PRACTICE AND PROCEDURE – application for joinder – allegations against proposed joined parties disclose no cause of action – allegations against proposed joined parties not related to the existing claim – self-represented litigant – application dismissed – Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 9.02 and 9.06.

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APPEARANCES:	Counsel	Solicitors
For the First Plaintiff	In Person
For the Second Plaintiff	Mr M Lhuede	Piper Alderman
For the Defendants and the Legal Practitioners’ Liability Committee (proposed defendant)	Ms S Josephs	Minter Ellison
For Richard Kendall and Stephen Palmer (proposed defendants)	Mr L Virgona	K & L Gates
For Harry Klonis and Stephen Wartski (proposed defendants)	Mr M Saw	Collin Biggers & Paisley

HIS HONOUR:

A. Introduction

The first plaintiff, Kourosh Jafari (“Jafari”) seeks to join various persons as defendants to this proceeding. By summons filed 10 July 2014 (which has been adjourned on numerous occasions), application is made to join the following persons:

(1)       Richard Kendall, Queen’s counsel (“Kendall”).
(2)       Stephen Palmer, barrister (“Palmer”).
(3)       Harry Klonis, solicitor (“Klonis”).
(4)       Stephen Wartski, barrister (“Wartski”).
(5)The Legal Practitioners’ Liability Committee (“the Liability Committee”),
(together, “the Proposed Defendants”).

The second plaintiff, 63 Buckley Street Pty Ltd (in liquidation) (“63 Buckley Street”) is separately represented. 63 Buckley Street does not consent to or oppose Jafari’s application. 63 Buckley Street presently has an application on foot to be removed as a plaintiff and added as a defendant. That application has been adjourned at the request of 63 Buckley Street, for reasons it is unnecessary to refer to here.

The allegations in this proceeding arise out of an earlier proceeding (“the Earlier Proceeding”). Jafari was a party to the Earlier Proceeding, which concerned conduct that was the subject of a trial and determination by this court, as recorded in Bloomingdale Holdings Pty Ltd v 63 Buckley Street Pty Ltd (“the Principal Judgment”).[1]
[1][2008] VSC 168 (Hargrave J).

B. The proposed pleading

On 20 August 2014, Jafari provisionally filed a document entitled “Draft Amended Statement of Claim of Kourosh Jafari”, pursuant to orders made by an associate judge on 15 July 2014 (“the Proposed Statement of Claim”).

Leave has not been granted to Jafari to formally file the Proposed Statement of Claim. Rather, the document has been provided to indicate the basis of Jafari’s claims against the Proposed Defendants.

Although in a different form, the Proposed Statement of Claim reiterates some claims already on foot against John Alderuccio and Bruno Alderuccio, solicitors (“the Existing Defendants”). Jafari’s allegations in relation to the Existing Defendants may be summarised as follows:

(1)Jafari and 63 Buckley Street owned a number of…

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 Jafari v Alderuccio

Details

AGLC: Jafari v Alderuccio [2015] VSC 684
Case: [2015] VSC 684
Decision Date: 2 DECEMBER 2015

CaseChat Overview and Summary

The matter before the court involved an application by the plaintiff, Jafari, to join two additional defendants to the proceedings. Jafari, who was self-represented, sought to add the defendants in relation to allegations that were distinct from the original claim against the defendant Alderuccio. The court was required to determine whether the allegations against the additional defendants disclosed a cause of action and whether they were related to the existing claim against Alderuccio.

The court examined the allegations made against the proposed joined parties and found that they did not disclose a cause of action. Furthermore, the court determined that the allegations against the additional defendants were not related to the existing claim against Alderuccio. As a result, the court found that the application for joinder did not meet the requirements of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), rules 9.02 and 9.06. Consequently, the application was dismissed.

The court's decision was based on the fact that the allegations against the proposed joined parties did not disclose a cause of action and were not related to the existing claim against Alderuccio. The court held that the application for joinder was not permissible under the relevant rules of court. As a result, the plaintiff's application to join the additional defendants was dismissed.

The court did not make any orders in relation to the additional defendants, and the proceedings against Alderuccio continued as before. The court emphasised the importance of ensuring that any application for joinder meets the requirements of the rules of court and that the allegations against the proposed joined parties are related to the existing claim.

Orders