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Taseska v Carus (No 3)

Taseska v Carus (No 3)

Case [2018] VSC 308 14 June 2018

Summary Judgment

Abuse of Process

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
PROFESSIONAL LIABILITY LIST

S CI 2015 04680

SILVANA TASESKA	Plaintiff
- and -
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:	30 May 2018
DATE OF RULING:	14 June 2018
CASE MAY BE CITED AS:	Taseska v Carus (No 3)
MEDIUM NEUTRAL CITATION:	[2018] VSC 308

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PRACTICE AND PROCEDURE – Application by the defendants for summary judgment in respect of certain claims brought by plaintiff pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) – Defendants had acted for plaintiff in proceedings brought against her former employer – Plaintiff’s claim that defendants were negligent in their conduct of her claim for psychiatric injury (‘stress claim’) – Plaintiff claims that the defendants’ withholding her file for the stress claim pending payment of legal costs hampered her ability to prepare for trial – Defendants seek summary judgment on basis plaintiff’s claim has only a ‘fanciful’ prospect of success – Finding that terms of agreement entitled defendants to retain file upon termination of retainer and until legal costs were paid – Finding that proceeding is an abuse of process as plaintiff seeks to re-litigate stress claim – State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423, applied – Defendants entitled to summary judgment.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared on her own behalf
For the Defendant	Mr C Madder	DLA Piper Australia

HER HONOUR:

The defendants, Mr Henry Carus, and his firm, Henry Carus & Associates (‘Carus’) have renewed their application for summary judgment in respect of certain claims brought by the plaintiff, Ms Silvana Taseska, against them in this proceeding. Ms Taseska is Carus’ former client, and has brought claims in negligence against Carus. Prior to September 2013, Carus acted for Ms Taseska in relation to two proceedings brought by her against her former employer, MSS Security Pty Ltd (‘MSS Security’) seeking compensation for physical and psychiatric injury (‘personal injury proceedings’). The claims originally brought by Ms Taseska in this proceeding, and the procedural history of the proceeding, are set out in my previous rulings concerning whether Ms Taseska was able to pursue certain claims, and the adequacy of the pleading of those claims.[1] Essentially, these rulings have led to a narrowing and reshaping of Ms Taseska’s claims against Carus. Two substantial claims remain: a claim that Carus was negligent in failing to apply for a significant injury certificate allowing Ms Taseska to claim damages for pecuniary loss in respect of her knee injury (‘knee claim’), and a claim that Carus was negligent in its conduct of her claim for psychiatric injury (‘stress claim’). It is the latter which is the subject of this application.
[1]Taseska v Carus [2017] VSC 113 (16 March 2017); Taseska v Carus & Anor (No 2) [2017] VSC…

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 3)

Details

AGLC: Taseska v Carus (No 3) [2018] VSC 308
Case: [2018] VSC 308
Decision Date: 14 June 2018

CaseChat Overview and Summary

The case of Taseska v Carus (No 3) involved an application by the defendants for summary judgment concerning claims brought by the plaintiff. The plaintiff, Taseska, had previously engaged the defendants, Carus, to represent her in a claim for psychiatric injury against her former employer. The dispute arose from Taseska's assertion that the defendants were negligent in handling her 'stress claim', specifically alleging that the defendants' withholding of her file pending payment of legal costs impaired her ability to prepare for trial.

The central legal issues before the court included whether the terms of the retainer agreement entitled the defendants to retain Taseska's file until her legal costs were settled and whether Taseska's claims constituted an abuse of process by attempting to re-litigate the stress claim. The court had to determine if Taseska's claims had any real prospect of success.

In its reasoning, the court found that the terms of the retainer agreement did indeed permit the defendants to retain Taseska's file until the outstanding legal costs were paid. Additionally, the court held that Taseska's proceeding was an abuse of process as she was effectively seeking to re-litigate the stress claim. The court referred to the precedent set in State Bank of New South Wales Ltd v Stenhouse Ltd (1997) Aust Torts Rep 81-423, which supported the view that such conduct was an improper use of the court process. Consequently, the court granted the defendants' application for summary judgment, dismissing Taseska's claims.

Orders