Taseska v Carus (No 2) - [2017] VSC 707

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PROFESSIONAL LIABLITY LIST

S CI 2015 04680

SILVANA TASESKA	Plaintiff
v
HENRY JOSEPH CARUS	First Defendant
HENRY CARUS & ASSOCIATES (The Trustee for HCA Trust ABN 97 872 505 795)	Second Defendant

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 November 2017
DATE OF JUDGMENT:	24 November 2017
CASE MAY BE CITED AS:	Taseska v Carus & Anor (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 707

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PRACTICE AND PROCEDURE – Application by the defendants for summary judgment – Failure to comply with previous orders regarding pleading – Whether proceeding should be dismissed by reason of plaintiff’s failure to properly articulate claim – 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 – Summary judgment granted in respect of some claims on the basis that they are an abuse of process, or have no prospects of success.

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

HER HONOUR:

In this proceeding, Ms Taseska, who is self‑represented, brings claims for negligence and/or breach of duty against her former solicitor, Henry Carus and his firm, Henry Carus & Associates (‘Carus’). The claims arise out of her engaging Carus to act for her in two personal injuries proceedings in this Court against her former employer (‘MSS Security’). Details of Ms Taseska’s claims and the outcome of the personal injuries proceedings can be found in the judgment of J Forrest J of 20 May 2016.[1] In short, J Forrest J dismissed Ms Taseska’s claim for psychological injury (‘stress claim’) on the grounds that MSS Security had not breached any duty of care owed to her, and awarded $250,000 for damages for pain and suffering arising out of an injury to her knee (‘knee claim’). Further, on 18 August 2016 J Forrest J found that Carus was entitled to a ‘fruits of judgment’ lien over the damages payable to Ms Taseska by MSS Security.
[1]Taseska v MSS Security Pty Ltd [2016] VSC 252.

The procedural history of this proceeding, and the claims originally made by Ms Taseska in this proceeding, are set out in some detail in a previous ruling I delivered on 16 March 2017 in response to a summons originally issued by Carus on 16 December 2015, and amended on 30 January 2017 (‘16 March ruling’).[2] Also before me on that occasion was an application by Ms Taseska to file and serve an amended statement of claim.
[2]Taseska v Carus [2017] VSC 113. The authorities relevant to whether Ms Taseska’s claims should be dismissed on the grounds that their pursuit would be an abuse of process are also canvassed in this judgment.

On 16 March 2017, I made the following orders (‘16 March orders’):

1. The statement 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 Taseska v Carus (No 2)

Details

AGLC: Taseska v Carus (No 2) [2017] VSC 707
Case: [2017] VSC 707
Decision Date: 24 November 2017

CaseChat Overview and Summary

In the matter of Taseska v Carus (No 2), the court was presented with an application by the defendants seeking summary judgment due to the plaintiff's failure to comply with previous orders concerning the pleading of their claims. The dispute centred on the plaintiff's allegations of breaches of fiduciary duty and unauthorised use of confidential information, which arose from the plaintiff's former employment relationship with the defendants. The case was heard in the Supreme Court of Victoria.

The court had to decide whether the proceeding should be dismissed due to the plaintiff's failure to properly articulate their claim, as well as whether an abuse of process had occurred as a result of the plaintiff's statement of claim. The court also considered the relevant provisions of the Civil Procedure Act 2010 (Vic) and the Supreme Court (General Civil Procedure) Rules 2015, particularly sections 62 and 63 of the Act and Order 23 of the Rules. The court had to weigh the principles of justice and fairness in determining whether to grant the defendants' application for summary judgment.

The court found that the plaintiff's failure to comply with previous orders regarding the pleading of their claims was a significant factor in their decision. The court held that the proceeding should be dismissed in respect of some claims because they were an abuse of process or had no prospects of success. The court found that the plaintiff's statement of claim was vague and did not provide sufficient detail to support the allegations of breaches of fiduciary duty and unauthorised use of confidential information. The court concluded that the plaintiff's claims were not properly articulated and that the proceeding should be dismissed in respect of those claims. The court also found that the plaintiff's claims were an abuse of process because they were brought for an improper purpose or had the effect of causing unnecessary delay or expense. The court granted summary judgment in favour of the defendants in respect of some of the claims, while dismissing the proceeding in respect of others.

The court ordered that the proceeding be dismissed in respect of certain claims, and that summary judgment be granted in respect of others. The court also ordered that the defendants be entitled to their costs of the application. The court's decision highlights the importance of complying with court orders and properly articulating one's claims in order to avoid the risk of the proceeding being dismissed or the claims being struck out.

Orders