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Trkulja v Dobrijevic

Trkulja v Dobrijevic

Case [2015] VSCA 281 21 October 2015

Limitation Periods

Security for Costs

Interlocutory Orders

Civil Litigation & Procedure

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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.…

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 Trkulja v Dobrijevic

Details

AGLC: Trkulja v Dobrijevic [2015] VSCA 281
Case: [2015] VSCA 281
Decision Date: 21 October 2015 First revision: 4 November 2015

CaseChat Overview and Summary

In the matter of Trkulja v Dobrijevic, the applicant sought an extension of time to apply for leave to appeal two interlocutory orders made in the Supreme Court of New South Wales. The case was heard in the Court of Appeal, which had to determine the merits of the applicant's application for an extension of time as well as the respondents' application for security for costs. The applicant was five weeks out of time in filing the application for an extension of time. Additionally, the applicant had to demonstrate that there was a prospect of success on appeal and that there were exceptional circumstances justifying the delay in applying for an extension of time.

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