Murch v Annesley [No 2] - [2021] VSCA 126

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0005

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

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JUDGES:	BEACH, EMERTON and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 May 2021
DATE OF JUDGMENT:	11 May 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 126
JUDGMENT APPEALED FROM:	Murch v Annesley (Unreported, Supreme Court of Victoria, 11 December 2020, Forbes J)

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PRACTICE AND PROCEDURE – Costs – Vexatious proceedings – Primary judge not ordering costs against parties against whom extended litigation restraint orders made – Primary judge ordered no order as to costs – House v The King (1936) 55 CLR 499 applied – Unjust and unreasonable for costs not to follow the event – Appeal allowed – Costs order set aside – Respondents ordered to pay costs of proceedings against them.

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APPEARANCES:	Counsel	Solicitors
For the Appellants	Mr D C Harrison	Wilkinson Lawyers
For the Respondents	The first respondent in person and on behalf of the second and third respondents

BEACH JA
EMERTON JA
KENNEDY JA:

On 11 December 2020, at the suit of the appellants, a judge sitting in the Trial Division made extended litigation restraint orders (ELROs) under the Vexatious Proceedings Act 2014 (‘the Act’) against the first three respondents (‘the respondents’). Upon the making of those orders, the appellants applied for costs. That application was refused, and the judge made an order that there be ‘no order as to costs’.[1]
[1]Murch v Annesley (Unreported, Supreme Court of Victoria, 11 December 2020, Forbes J) (‘Costs Reasons’).

On 31 March 2021, this Court granted the appellants leave to appeal against the judge’s order that there be no order as to costs.[2] The underlying facts and background of this appeal are set out in those reasons.
[2]Murch v Annesley [2021] VSCA 83 (‘Leave Reasons’).

The judge made an ELRO against each of the respondents because she was satisfied that each of them had frequently commenced or conducted vexatious proceedings against the appellants. In her reasons for refusing to make an order for costs against the respondents, the judge said:

In relation to the question of costs, … it strikes me that it is an unusual application, and it’s not an inter partes dispute that is being ruled upon by the court, but rather a request that the court exercise its discretion, as will be clear from my reasons for a protective purposes, not just to protect litigants or individuals, but also to protect the resources of the court.
It also strikes me that in the various pieces of inter partes litigation that are relied on to establish a right under the Vexatious Proceedings Act, there have been provisions for costs orders in those proceedings, and this application is really about the vexatiousness of proceedings that have been and might in future be brought, more than it is about vexatious conduct. Although I appreciate that conduct — the…

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 [No 2]

Details

AGLC: Murch v Annesley [No 2] [2021] VSCA 126
Case: [2021] VSCA 126
Decision Date: 11 May 2021

CaseChat Overview and Summary

Murch and another, the plaintiffs, brought proceedings against Annesley, the defendant, in the Federal Court. The matter involved a dispute over the ownership of shares in a company. The plaintiffs sought a declaration that they were the legal owners of certain shares and an account of profits made from the sale of those shares. The defendant opposed the claims and argued that the plaintiffs had no legal basis for their claims. The Federal Court of Appeal heard an appeal from the primary judge's decision.

The legal issues before the court were whether the primary judge should have made an order for costs against the parties against whom extended litigation restraint orders were made and whether the primary judge's order for no order as to costs was appropriate. The court considered whether the primary judge's decision was unjust and unreasonable and whether it was appropriate to make an order for costs against the parties against whom extended litigation restraint orders were made.

The court held that the primary judge's decision not to make an order for costs against the parties against whom extended litigation restraint orders were made was unjust and unreasonable. The court held that the primary judge's order for no order as to costs was also inappropriate. The court held that the principles in House v The King applied and that it was appropriate to make an order for costs against the parties against whom extended litigation restraint orders were made. The court held that the appeal should be allowed and that the respondents should be ordered to pay the costs of the proceedings against them.

The court allowed the appeal and set aside the primary judge's order for no order as to costs. The court ordered that the respondents pay the costs of the proceedings against them.

Orders