SUPREME COURT OF VICTORIA
COURT OF APPEAL
SAPCI 2014 0156
| MILORAD TRKULJA | Applicant |
| V | |
| IRINEJ DOBRIJEVIC | First Respondent |
| - and - | |
| CEDOMIR VIDEKANIC | Second Respondent |
| - and - | |
| DUSAN ZABIC | Third Respondent |
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| JUDGES: | KYROU, KAYE JJA and GINNANE AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 October 2015 |
| DATE OF JUDGMENT: | 21 October 2015 First revision: 4 November 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 281 |
| ORDERS APPEALED FROM: | Orders of Justice Dixon of the Trial Division dated 23 October 2014 and 21 November 2014. |
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PRACTICE AND PROCEDURE – Application for extension of time to apply for leave to appeal from two interlocutory orders – Court’s discretion – Delay – Conduct of applicant – Prospects of success – Application filed five weeks out of time – Extension of time refused.
PRACTICE AND PROCEDURE – Application by respondents for security for costs on appeal – Relevant principles to be applied – Applicant impecunious – Applicant unlikely to be able to pay any of respondent’s costs if respondents successful – Prospects of success of appeal – Security for costs granted for application for leave to appeal – Rule 64.05 Supreme Court (General Civil Procedure) Rules 2005.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr J A Ribbands, with Dr K Weston-Scheuber | None |
| For the Respondents | Mr D Bracken | Marsh & Maher Lawyers |
KYROU JA
KAYE JA
GINNANE AJA:
The applicant, who is the plaintiff in this proceeding, makes application for an extension of time to apply for leave to appeal from orders of Dixon J of the Trial Division dated 23 October 2014 and 21 November 2014. The respondents oppose the grant of an extension of time in respect of the orders of 23 October, but do not oppose an order granting the applicant an extension of time within which application might be made for leave to appeal against the orders of 21 November 2014. In addition, the respondents make application for security of costs in respect of each application by the applicant.
The history of the proceeding is complex and rather tortured. However, for the purpose of both applications, it needs to be summarised in a little detail.
The applicant commenced the proceedings on 9 January 2013. The first respondent is the Bishop of the Serbian Orthodox Church, the second respondent is one of its priests, and the third respondent is a former president of the Church. By the general endorsement on the writ, the applicant claimed damages for defamation, first, against the first respondent in respect of a letter dated 8 February 2011 (‘the first letter’), secondly, against the second and third respondents in respect of a letter dated 27 March 2011 (‘the second letter’), and, thirdly, against the second and third respondents in respect of words allegedly spoken by them in a church hall on 9 January 2012 (‘the church hall incident’).
On 26 February 2013, the applicant filed and served a statement of claim, bearing the details of Gibsons Solicitors, and Mr Stuart Littlemore QC on it.…
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- AGLC
- Trkulja v Dobrijevic [2015] VSCA 281
- Case
- [2015] VSCA 281
- Decision Date
CaseChat Overview and Summary
The court was required to consider the discretion available to it under the relevant rules of court and case law. The court had to balance the applicant's delay in filing the application for an extension of time against the prospects of success on appeal and any other relevant factors. In addition, the court had to consider whether the applicant was impecunious and whether there was a risk that the applicant would be unable to pay the respondents' costs if the appeal was unsuccessful. The court was required to apply the relevant principles to determine whether security for costs was appropriate in this case.
The court found that the applicant's delay in filing the application for an extension of time was significant and there were no exceptional circumstances justifying the delay. The court also found that the applicant was unlikely to be able to pay the respondents' costs if the appeal was unsuccessful. The court held that the applicant's prospects of success on appeal were not sufficiently strong to warrant granting an extension of time. The court granted the respondents' application for security for costs on appeal, ordering the applicant to provide security for the respondents' costs in the event that the appeal was unsuccessful. The court's decision was based on the relevant rules of court and case law, and the court's discretion in the circumstances of the case.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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