Murch v Annesley - [2021] VSCA 83

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0005

ROBERT GEORGE MURCH and ORS (according to the Schedule attached)	Applicants
v
PAUL DAVID ANNESLEY and ORS (according to the Schedule attached)	Respondents

S EAPCI 2021 0013

PAUL DAVID ANNESLEY	Applicant
v
ROBERT GEORGE MURCH and ORS (according to the Schedule attached)	Respondents

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JUDGES:	BEACH, EMERTON and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	31 March 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 83
JUDGMENT APPEALED FROM:	[2020] VSC 837 (Forbes J)

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PRACTICE AND PROCEDURE – Vexatious proceedings – Applications for leave to appeal – Applications required to be heard on the basis of written submissions unless exceptional circumstances and in interests of justice to conduct an oral hearing – No exceptional circumstances – Applications heard on the papers – Vexatious Proceedings Act 2014, ss 79 and 84.

PRACTICE AND PROCEDURE – Vexatious proceedings – Applications for leave to appeal – Extended litigation restraint orders – Acting in concert order – Application for leave to appeal against grant of ELRO refused – Application for leave to appeal against refusal of ELRO and acting in concert order refused – Vexatious Proceedings Act 2014, ss 16, 17, 34 and 35.

PRACTICE AND PROCEDURE – Vexatious proceedings – Costs – Primary judge not ordering costs against parties against whom ELROs granted – Application for leave to appeal against failure to make costs orders granted.

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APPEARANCES:

In accordance with s 84 of the Vexatious Proceedings Act 2014, these applications for leave to appeal were determined on the basis of written submissions and without an oral hearing.

BEACH JA
EMERTON JA
KENNEDY JA:

In December 2019, Robert George Murch, Robin Kissel and R G Murch Nominees Pty Ltd filed an originating motion in the Trial Division seeking Extended Litigation Restraint Orders (‘ELROs’) under the Vexatious Proceedings Act 2014 (’the Act’) against six defendants, Paul David Annesley, Sharlene Phyllis Annesley, Susan Annesley, David Tatana, Wirihana Tatana and Annesley Investments Pty Ltd.

The proceeding was heard by Forbes J on 21 August 2020. On 11 December 2020 her Honour made ELROs against the first three defendants, Paul, Sharlene and Susan Annesley. No order was made against the fourth, fifth and sixth defendants (the Tatanas and Annesley Investments). Additionally, her Honour ordered that there be no order as to costs.[1]
[1]Murch v Annesley [2020] VSC 837 (‘Reasons’).

Section 79 of the Act permits a party, with the leave of the Court, to appeal on a question of law arising in any decisions, identified in the section, made by a court or tribunal, including decisions to grant or refuse an ELRO. Pursuant to that section:

·the plaintiffs (Mr Murch, Ms Kissel and Murch Nominees) seek leave to appeal in relation to the judge’s failure to make an order against the sixth defendant (Annesley Investments), and her Honour’s failure to make a costs order in favour of the plaintiffs; and
·the first defendant (Mr Annesley) seeks…

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 Murch v Annesley

Details

AGLC: Robert George Murch and Ors(according to the Schedule attached) v Paul David Annesley and Ors(according to the Schedule attached) [2021] VSCA 83
Case: [2021] VSCA 83
Decision Date: 31 March 2021

CaseChat Overview and Summary

The case of Murch v Annesley involved the plaintiffs, Murch, and the defendants, Annesley. The nature of the dispute revolved around the plaintiffs' vexatious litigation, which included multiple applications for leave to appeal against various orders made under the Vexatious Proceedings Act 2014. The case was heard in the Supreme Court of Queensland. The legal issues before the court encompassed the procedures for handling vexatious proceedings, including the requirement for written submissions in applications for leave to appeal, the criteria for granting extended litigation restraint orders (ELRO), and the imposition of costs against vexatious litigants.

The court considered whether there were exceptional circumstances to warrant an oral hearing for the applications for leave to appeal, which are generally required to be heard on the basis of written submissions. The court found no exceptional circumstances and thus heard the applications on the papers. It also examined the grounds for granting ELRO and whether there were acting-in-concert orders that should be imposed. In this instance, the court was satisfied that the primary judge did not err in refusing to grant the ELRO and acting-in-concert order. However, the court found that the primary judge did err in not ordering costs against the parties against whom the ELROs were granted, and thus granted the application for leave to appeal against the failure to make costs orders.

The reasoning of the court focused on the balance between ensuring efficient case management and protecting the rights of the parties involved. By adhering to the statutory requirement for written submissions, the court aimed to streamline the process and prevent unnecessary delay. The court also considered the principles of fairness and justice in denying the ELRO and acting-in-concert orders, as there was no clear evidence of concerted action or ongoing vexatious conduct. However, the court recognised the importance of holding vexatious litigants accountable by imposing appropriate costs, thereby granting leave to appeal on that specific issue.

Orders