JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2017
DATE OF JUDGMENT:	16 March 2017
CASE MAY BE CITED AS:	Taseska v Carus & Anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 113

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PRACTICE AND PROCEDURE – Application by the defendants for summary judgment – Whether abuse of process arises out of plaintiff’s statement of claim – Application of Civil Procedure Act 2010 (Vic), ss 62, 63 and Supreme Court (General Civil Procedure) Rules 2015, Order 23 – Not a case in which res judicata or issue estoppel arises – Pleading insufficiently clear to determine whether abuse of process has occurred as a result of plaintiff’s attempt to re-litigate the proceeding.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendant	Mr C G K Madder	DLA Piper Australia

HER HONOUR:

On 3 September 2015, the plaintiff, Ms Taseska, issued this proceeding alleging negligence against and seeking damages from her former solicitor, Henry Carus, and his firm (‘defendants’). Mr Carus acted for Ms Taseska prior to the breakdown of his professional relationship with Ms Taseska on or about 2 September 2013, in two proceedings brought by her in this Court against her former employer, MSS Security Pty Ltd (‘personal injuries proceedings’). These two proceedings were heard together before J Forrest J in February 2016, where Ms Taseska represented herself. His Honour delivered his judgment on 20 May 2016.[1] He dismissed Ms Taseska’s claim for psychological injury (‘stress claim’), and awarded Ms Taseska $250,000 for damages for pain and suffering arising out of an injury to her knee (‘knee claim’).
[1][2016] VSC 252.

Ms Taseska’s claims in her statement of claim concerned the failure of Mr Carus to disclose to Ms Taseska an offer made by MSS Security Pty Ltd (‘MSS’) in the personal injury proceedings prior to the commencement of the trial on 29 August 2013. Ms Taseska learned during the course of a judicial mediation on 2 September 2013 that, prior to trial, MSS had made an offer of $200,000 ‘all‑in’ (‘undisclosed offer’) in respect of the personal injury proceedings. This caused the breakdown of the relationship between Ms Taseska and her legal team, and Ms Taseska ended Mr Carus’ retainer. The trial of the personal injury proceedings was adjourned owing to Ms Taseska’s ill-health, and she represented herself from then on.

In paragraphs 20 to 24 of the statement of claim, Ms Taseska made the following allegations:

The Defendant’s [sic] and Henry Joseph Carus and Henry Carus & Associates, were aware of the offers of settlement given prior to trial commencing on 29 August 2013 but failed to disclose the offers and made the Plaintiff and/or Silvana Taseska take the witness stand for 2 days…

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 Taseska v Carus

Details

AGLC: Taseska v Carus [2017] VSC 113
Case: [2017] VSC 113
Decision Date: 16 March 2017

CaseChat Overview and Summary

The defendants in Taseska v Carus applied for summary judgment in the County Court of Victoria, contending that the plaintiff’s statement of claim constituted an abuse of process. The plaintiff, Taseska, sought damages for the alleged breach of a contract by the defendants, Carus, and their associates. The defendants argued that Taseska’s attempt to re-litigate the matter amounted to an abuse of process, given that a previous proceeding had been dismissed on jurisdictional grounds.

The court was required to determine whether the plaintiff's statement of claim was an abuse of process under the Civil Procedure Act 2010 (Vic), sections 62 and 63, and the Supreme Court (General Civil Procedure) Rules 2015, Order 23. The court had to consider whether the plaintiff’s actions demonstrated a clear abuse of the court's process, warranting the application of the summary judgment provisions. This required an assessment of whether the plaintiff had re-litigated the same matter, thereby leading to an abuse of process.

The court found that the plaintiff’s statement of claim did not sufficiently clarify whether an abuse of process had occurred. The pleadings did not provide enough detail for the court to determine whether the plaintiff was attempting to re-litigate the matter. The court emphasised that there was no res judicata or issue estoppel in this case. Therefore, the court held that it was not in a position to determine whether an abuse of process had occurred based on the current pleadings. The application for summary judgment was dismissed.

The court ordered that the defendants pay the plaintiff’s costs of the application. The court emphasised that the plaintiff should amend their statement of claim to clearly outline the facts and legal basis for the claim, ensuring that it did not constitute an abuse of process.

Orders