Trkulja v Dobrijevic
[2015] VSCA 281
•21 October 2015 First revision: 4 November 2015
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. The statement of claim pleaded causes of action in relation to the first letter, the second letter, and the church hall incident.
The writ, having been issued on 9 January 2013, was outside the one year limitation period prescribed by s 5(1AAA) of the Limitations of Action Act 1958, in respect of the causes of action based on the first letter and the second letter. Accordingly, by summons filed 5 April 2013, the applicant sought an order, pursuant to s 23B of the Limitation of Actions Act, that the limitation period in relation to the publication of the first letter and the second letter be extended to 9 January 2013. On 21 May 2013, Beach J refused that application.[1] As a result, the claims by the applicant, based on the first letter and the second letter, were statute barred.
[1]Trkulja v Dobrijevic & Ors [2013] VSC 261.
On 4 June 2013, the applicant filed and served a proposed amended statement of claim dated 4 June 2013, which deleted the paragraphs pleading causes of action in relation to the first and second letters, but which added paragraphs 6A and 6B, alleging a cause of action in defamation based on words allegedly spoken by the first and second defendants on 9 January 2012. The circumstances, in which it was alleged that those words were spoken by the first and second respondents, were referred to as ‘the tree incident’. The amended statement of claim bore the name of a firm of solicitors, and Mr C. Dibb, an experienced member of the New South Wales Bar.
In response, the solicitors for the respondents wrote to the applicant’s solicitors asserting that the cause of action, set out in paragraphs 6A and 6B of the amended statement of claim, was statute barred. The solicitors for the respondents then issued a summons dated 24 June 2013 seeking summary dismissal of the applicant’s claims based on the tree incident, as pleaded in paragraphs 6A and 6B of the proposed amended statement of claim. Subsequently, the parties negotiated consent orders, which permitted the applicant to file the amended statement of claim, but which reserved to the respondents the right to raise any argument in relation to the amendments contained in that pleading.
The trial of the proceeding was then fixed for 4 March 2014, but was subsequently vacated. Before that date, the applicant’s solicitor notified the respondents’ solicitor of the intention to seek leave to file a further amended statement of claim. On 11 March 2014, the applicant served a second proposed amended statement of claim on the respondents’ solicitors. On 16 April, the applicant served a third proposed amended statement of claim on the respondents’ solicitors. On 22 May, the applicant sought leave to file the third proposed amended statement of claim. Ultimately, he resiled from any intention to rely on either the second or third proposed amended statements of claim. He advised the Court that he intended to rely on the amended statement of claim dated 3 June 2013.
In response, the respondents filed a summons seeking summary judgment, or dismissal of the causes of action pleaded in paragraphs 6A and 6B of the amended statement of claim (based on the tree incident). The applicant filed a summons seeking an extension of the statutory period applicable to those causes of action.
On 23 October 2014, Dixon J heard both of those applications. His Honour made orders that paragraphs 6A and 6B of the amended statement of claim be struck out, and he gave the applicant leave to serve any proposed further amended statement of claim by 14 November. Leave to serve a re-pleaded statement of claim was not limited, but the respondents retained the right to object to leave being granted to file any further amended pleading.
The applicant then served a proposed (fourth) further amended statement of claim dated 17 November. That pleading, in paragraph 9, contained extensive further particulars of the claim for aggravated damages. The particulars in substance set out the material facts comprising the tree incident that had previously been pleaded in paragraphs 6A and 6B.
In response, the respondents’ solicitors wrote to the applicant noting that, as a consequence of the abandonment by the applicant of paragraphs 6A and 6B of the statement of claim of 3 June 2013, no cause of action had been pleaded against the first respondent, and he should therefore be removed from the proceeding.
In response, the applicant withdrew the proposed further amended statement of claim, and submitted another proposed (fifth) further amended statement of claim dated 18 November 2014. In that pleading, the applicant did not press the further particulars of aggravated damages, and they were removed from the pleading. Thus, there were no longer any allegations about the tree incident made by the applicant. Secondly, the applicant proposed to include a cause of action against the first respondent in respect of the church hall words. The applicant claimed that the first respondent had caused the second and third respondents to speak and publish the words, spoken in that incident, “using his authority”.
The respondents opposed leave being granted for any further amendments to the applicant’s statement of claim. On 21 November 2014, Dixon J dismissed the application by the applicant for leave to file and serve the proposed further amended statement of claim dated 18 November 2014. His Honour also ordered that certain paragraphs of the particulars of damage of the amended statement of claim dated 3 June 2013 be struck out.[2]
[2]Trkulja v Dobrijevic & Ors(No 2) [2014] VSC 594.
Adjournment application
At the commencement of argument, counsel for the applicant applied for an adjournment in respect of each application. It was submitted that the applicant had been unwell, and some medical reports were tendered to that effect. It was further submitted that, as a result, the applicant had been unable to provide counsel with appropriate instructions in response to the application by the respondents for security for costs. After hearing submissions, we rejected the application. We now state our reasons for doing so.
The brief medical material, provided on behalf of the applicant, does indicate that, during this year, he has had some health issues. However, the medical reports do not demonstrate that the applicant was unfit to attend the hearing before us. Nor do the medical reports support the proposition that, because of his ill health, the applicant has been, or would be, incapable of providing instruction to his legal advisers in respect to the applications that were before the court.
In addition, the applicant did receive some legal assistance in preparing the application for an extension of time and for leave to appeal. In particular Mr Dibb prepared the written case. The applicant filed an affidavit in support of the application for an extension of time. In that affidavit, he stated that Mr Dibb assisted him with the preparation of the necessary documentation for the application for leave to appeal from the decisions of Dixon J.
The respondents’ application for security for costs was instituted on 20 May 2015, and the affidavits in support of that application were sworn on the same date. Thus, the applicant has had five months to provide material responding to the application. He has not provided any appropriate explanation as to why he has not done so, notwithstanding that he has had such a lengthy period within which to provide such material.
For those reasons, the application for an adjournment of the two applications, that are before the court, was refused.
The application for extension of time
Rule 64.05 of the Supreme Court (General Civil Procedure) Rules 2005 provides that an application for leave to appeal to the Court of Appeal must be filed within 28 days after the decision to which that application relates, was made. The application for leave to appeal, from the orders of Dixon J made 23 October 2014 and 21 November 2014, was not filed until 24 December 2014. Accordingly, it was necessary, by that application, for the applicant to seek orders extending time pursuant to rule 64.08(1).
The application for an extension of time is supported by an affidavit by the applicant. In essence, the applicant states that he was self‑represented in both of the two applications before the judge, that are now the subject of the application for leave to appeal. The applicant states that he is a pensioner, and that he lacked the resources to engage counsel to assist him. At the time, neither he, nor counsel for the defendants, raised with the judge the effect of s 34 of the Limitation of Actions Act 1958, rule 14.03 and rule 36.01, and their significance. Subsequently, on 1 December 2014, a member of counsel, who appeared for the applicant in relation to a different application in the matter, as part of the Victorian Bar’s pro bono scheme, gave advice to the applicant that those matters might have been relevant to the applications decided by Dixon J on 23 October and 21 November.
The applicant further deposes that he again made contact with Mr Christopher Dibb of the New South Wales Bar, who had appeared for him in relation to this matter and other matters. Mr Dibb agreed to assist the applicant to prepare the necessary documentation. However, there was a delay in that process, because Mr Dibb had other work commitments to which he was required to give priority.
Based on that material, it was submitted that the applicant had a reasonable excuse for failing to bring each application within the time prescribed by the rules. It was further submitted that no prejudice has been sustained by the respondents as a result of the delay. Each application, it is submitted, is arguable. In addition, it was submitted that the application for leave to appeal against the order of 23 October 2014, and the application for leave to appeal against the order of 21 November 2014, each involve the same issue, namely whether, as a result of s 34 of the Limitation of Actions Act, it is permissible to introduce into a statement of claim, by amendment, a cause of action in defamation more than twelve months after the date of publication. Accordingly, the applicant submitted that an extension of time should be granted to him.
As we stated, in response, the respondents do not oppose an order extending the time within which the applicant might seek leave to appeal from the orders of Dixon J dated 21 November. On the other hand, the respondents do oppose the grant of an extension of time in respect of the order of 23 October, because the pleading, that was the subject of that order, was overtaken by the two proposed further amended statements of claim served by the applicant.
In addition, it was submitted that the applicant’s claim, that he lacked legal assistance, is incorrect. Although the applicant represented himself at the two hearings that are the subject of the present applications, the writ was prepared by solicitors, and the original statement of claim was drawn by a Queen’s Counsel. The amended pleadings had the names of solicitors, and Mr Dibb, endorsed on them. It was submitted that the application for an extension of time, in respect of the order of 23 October, was filed 34 days out of time, and that many procedural steps had been undertaken during that period. On 3 December, the applicant applied to Dixon J for an order adjourning the trial, and for other orders. In his ruling, the judge criticised the applicant for his tardiness, and delay, in prosecution of the proceeding, noting that the applicant was in breach of his overarching obligation under s 25 of the Civil Procedure Act to use reasonable endeavours to act properly and minimise delay.[3] Notwithstanding those admonitions by his Honour, the applicant delayed until 24 December to file his application for leave to appeal.
[3]Trkulja v Dobrijevic & Ors (No 3) [2014] VSC 614, [56-[58].
Finally, it was submitted that the order of Dixon J of 23 October is not attended by sufficient doubt to justify an extension of time. From the commencement of the proceedings, all of the claims pursued against the first respondent were out of time. It is submitted that the proposed amendment, to plead a cause of action against the first respondent, was not made in order to pursue a real question of controversy, but, rather, for a collateral or tactical purpose to pursue a dispute that he has with the first respondent.
Conclusion on application for extension of time
The principles, relating to the application for an extension of time, are well established.[4] The guiding principle is that the discretion to extend time is given for the sole purpose of enabling the Court to do justice between the parties. The applicant, for an extension of time, must explain the delay, and the explanation must justify the delay being excused. The Court should take into account the history of the proceedings and the conduct of the parties. A relevant consideration is that, in the case of a proposed appeal, the successful party, at first instance, has a legitimate interest in the finality of the decision in that party’s favour. The Court does take into account its assessment of the prospects of success of the appeal, on such an application, bearing in mind, however, that the parties are not in a position to address a full argument on that issue, nor is the Court in a position to make a detailed assessment of it.
[4]See for example Hughes v National Trustees Executors and Agency Co of Australasia Limited [1978] VR 257, 263 (McInerney J); Gallow v Dawson (1990) 93 ALR 479, 480 (McHugh J); Jackamarra v Krakouer (1998) 195 CLR 516, 512-2 [9] (Brennan CJ and McHugh J), 539-543 [66] (Kirby J); Cooper and anor v Sztainbok [2009] VSCA 73, [20] (Dodds-Streeton JA).
The starting point, in our view, is the decision by Dixon J on 23 October. His Honour did not, it would appear, deliver a formal set of reasons on that day. However, subsequently, in his ruling of 3 December, his Honour summarised his reasons for his decision on 23 October 2014 in the following terms:
On 23 October 2014, I refused the defendant’s application for summary dismissal of the plaintiff’s claim based on an incident of a defamatory publication described in my reasons as the ‘tree incident’. This claim was pleaded by paragraphs 6A and 6B of the plaintiff’s amended statement of claim. The plaintiff sought an extension of the limitation period in order to maintain that claim. Further, because this was not the only proceeding in which allegations in respect of that particular incident had been raised as a basis for a claim for damages for defamation, there was an issue whether the plaintiff required leave pursuant to s 23 of the Defamation Act to bring the claim. I ruled that the issue of whether the plaintiff was bringing further defamation proceedings against the same defendant in relation to the same or a similar publication could not be precisely determined because of ambiguity and imprecision in the pleadings.
The plaintiff stated to the Court his desire to amend the pleadings before proceeding further with those applications, in particular, the s 23 application for leave. I ordered that paragraphs 6A and 6B of the amended statement of claim dated 3 June 2013 be struck out and gave the plaintiff leave to serve a proposed further amended statement of claim for further consideration by the defendants. Leave to re‑plead was not constrained in any respect as to what the plaintiff might further allege, because the plaintiff informed me he intended to retain experienced senior counsel to re‑plead his claims and appear at the trial. However, the plaintiff, largely ignoring some assistance provided by a barrister in Sydney, produced a further proposed amended statement of claim that he served on the defendants. The defendants opposed leave to amend.
On 21 November 2013, in Trkulja v Dobrijevic & Ors (No 2), I refused the plaintiff leave to amend in the form of the proposed statement of claim on three grounds … .[5]
[5]Trkulja v Dobrijevic & Ors (No 3) [2014] VSC 614, [4]-[6].
It is apparent, from that summary of the judge’s reasons for his decision on 23 October, that the judge struck out paragraphs 6A and 6B of the amended statement of claim of 3 June 2013, because the plaintiff stated that he desired to amend the pleadings, before proceeding further with his application for an extension of the limitation period in order to maintain the claims that were made in that pleading. The judge made it plain that the plaintiff was not, by virtue of that order, precluded from re‑pleading the cause of action that he sought to assert in paragraphs 6A and 6B of the further amended statement of claim dated 3 June 2013.
Nevertheless, the plaintiff chose not to reassert the claim, based on the tree incident, in the two proposed further amended statements of claim that he served on the respondents on 17 November and 18 November 2014, as the basis of a claim against the first respondent. In the pleading served on 17 November, the applicant did rely on those matters as particulars of damage. However, in the pleading served by him on the following day, 18 November, he abandoned those particulars. In any event, the critical point is that the applicant made a deliberate decision to no longer seek to make a claim against the first respondent based on the tree incident.
Thus, the proposed amended pleading, served on 18 November, was the subject of the application before the judge on 21 November, and was the subject of the decision made by the judge on that day, which is also the subject of an application by the applicant for leave to appeal. In that way, the respondents are correct in contending that the pleading dated 3 June 2013, that was the subject of the judge’s decision on 23 October, was overtaken by the subsequent pleading served and relied on by the applicant. Conversely, if the applicant were granted an extension of time, he would then have, before this Court, two applications for leave to appeal, based on two different pleadings on both of which he seeks to rely.
In addition to that consideration, the applicant has not been able to demonstrate how he would have any arguable prospect of success against the decision made by Dixon J on 23 October. On that day, the judge did not make any decision determining the validity of the pleading then sought to be relied on by the applicant. Rather, the judge ruled that the issue, whether the pleading constituted a claim in respect of the same or similar publication, could not be determined, because of the ambiguity and imprecision of the pleading. The gravamen of the orders made by the judge was to enable the applicant to get his pleading in order, so that his application for leave, pursuant to s 23 of the Defamation Act, could be appropriately ruled on. The applicant has failed, in this application, to demonstrate in what respect that decision, by the judge, was arguably incorrect or erroneous.
Furthermore, as counsel for the respondents has noted, the present proceeding has been bedevilled by delay, for most of which the applicant has been responsible. The application for an extension of time, in respect of the 23 October orders, was made almost five weeks after the expiration of the time fixed by the Rules for the bringing of an application for leave to appeal. Those time limits are of some importance. In the context of interlocutory proceedings such as these, they enable a successful party to have some certainty that the decision, gained in its favour at first instance, governs the litigation. In addition, the time limits are designed to ensure that there is no untoward delay in achieving some finality in litigation. The reason given by the applicant, for the delay, is unconvincing, and is also to be viewed in the context of the unsatisfactory manner in which the applicant has prosecuted the proceeding.
Finally, the fact that the application for leave to appeal in respect of the order of 23 October, and the application for leave to appeal in respect of the order of 21 November, may involve a common question of law, does not, logically, support or advance the case made by the applicant for an extension of time within which to bring the former application. As we have noted, the versions of the statement of claim, that were the subject of those two orders, were materially different, and each application for leave to appeal would involve a number of substantially different considerations.
Taking all those matters into account, we consider that the justice of the case requires that the application for an extension of time within which the applicant might have leave to appeal against the orders of Dixon J dated 23 October should be refused.
As we have already noted, the respondents do not oppose the grant of an extension of time in respect of the application by the applicant for leave to appeal against the decision of Dixon J dated 21 November 2014. In our view it is appropriate to grant the applicant an extension of time in respect of that application.
Security for costs
The respondents make application for security for costs of the appeal on three bases, namely: that the applicant is an undischarged bankrupt; that the applicant has failed to pay a number of costs orders made in favour of the respondents; and, if the appeal fails, the applicant will not pay to the respondents any costs that the court may order against him.
The principal affidavit in support of that application, sworn by the solicitor for the respondents, amplifies the grounds that are contained in the application. First, it is pointed out that on 5 December 2004, Dixon J ordered (inter alia) that the proceeding not be re‑fixed for trial until: the applicant has filed a notice of trial; has paid eight sets of costs ordered against him in previous interlocutory proceedings; and has filed a notice of appearance by a solicitor instructed to conduct the trial on his behalf. The applicant has not complied with those orders, and, accordingly, the proceeding cannot be fixed for trial.
Secondly, the respondents’ solicitors depose that the costs, that are owed by the applicant to the respondents, amount to the sum of $155,712.45, excluding the costs of taxation. None of those costs have been paid by the applicant to the respondents. Thirdly, the applicant was declared bankrupt on 22 January 2015, by order of the Federal Circuit Court, pursuant to a bankruptcy notice for an unpaid debt owed by the applicant to the first respondent, for an unpaid debt of $15,829.21. A creditors’ report in the bankruptcy was issued on 4 March 2015, noting that the only substantial assets of the applicant were unpaid costs orders of $400,000 from previous defamation proceedings in which the applicant had been successful. In recent correspondence with the respondents’ solicitors, the trustee in bankruptcy has stated that, at this stage, it is unlikely that any dividend will be paid to the creditors of the applicant in the bankruptcy.
A principal of the respondents’ solicitors has sworn an affidavit deposing that he is of the view that the amount of $40,500 is a reasonable estimate of the respondents’ likely standard costs of defending the leave application, and, if the leave application is successful, a further $76,500 is a reasonable estimate of the respondents’ likely standard costs of defending the appeal.
Based on that material, it was submitted on behalf of the respondents that an order for security for costs should be made in favour of the respondent. First, it is submitted that the applicant does not have good prospects of succeeding in the application for leave to appeal, or in the appeal if leave were granted. Secondly, the respondents rely on the impecuniosity of the applicant. Thirdly, the respondents point to the apparent antipathy by the applicant to the first respondent. In that respect it is noted that the applicant has six other proceedings against clergy and staff of the Serbian church of Australia. Fourthly, the respondent submitted that the applicant has breached the Civil Procedure Act in the proceeding, and has conducted the proceeding in a manner which was strongly criticised by Dixon J in his decision of 3 December 2014.[6]
[6]Trkulja v Dobrijevic & Ors (No 3) [2014] VSC 614, [56]–[61].
In response, counsel for the applicant pointed out that this is not the case of an appeal from a decision disposing of the case, but, rather, the applications before the court are in respect of interlocutory orders. Accordingly, it was submitted the court should be less inclined to grant an order for security for costs in respect of such an application. In addition, counsel referred to the long-standing practise, that claimants for damages for personal injuries generally are treated as standing in a special category, so that it is extremely rare that a plaintiff/appellant, in such a case, be ordered to provide security. In support of that proposition, counsel referred to the decision of White J in McVicar v S & J White Pty Ltd (Trading as Arab Steed Hotel).[7] Counsel submitted that the same principle should apply to plaintiffs who claim damages for defamation, as those plaintiffs are also seeking to vindicate a personal interest.
[7][2006] SASC 233, [24].
Rule 64.38(2)(a) provides that the Court of Appeal, on the application by a party, may make an order for security for costs of an appeal or of an application before the court. The factors, relevant to the exercise of the discretion, have been discussed in a number of cases. They include (among others): the prospects of success of the appeal; the degree of risk that a costs order would not be satisfied; whether the making of an order would be oppressive by stifling a reasonably arguable claim; whether any impecuniosity of the appellant (or applicant) arises out of the conduct complained of; whether there are any aspects of public interest militating against the making of such an order; and whether there are any particular discretionary matters relevant to the application.[8]
[8]Re Equity Access Pty Ltd v Westpac Banking Corporation (1989)ATPR 40-972; Maher v Commonwealth Bank of Australia & Anor [2008] VSCA 122, [80] (Dodds‑Streeton JA); Ribbera v Eagle Hills Pty Ltd [2014] VSCA 173, [30] (Garde AJA).
In the present case, it is clear, on the material, that the applicant is impecunious, and it is highly likely that, if he is not successful on the application, or the appeal, he will be unable to pay any costs of the successful respondents. Thus, unless an order for security is made, the respondents will be required to meet their own costs of the application or appeal, regardless of whether they are successful or not.[9]
[9]Scerri v Northam Holdings Pty Ltd [1967] VT 674.
That consideration, of itself, is particularly material in light of the history of the interlocutory proceedings in this case. The proceedings commenced more than two and a half years ago. During that time, the applicant has sought to rely on five different versions of his statement of claim. As we have already noted, by seeking leave to appeal the orders of Dixon J, of 23 October and on 21 November, the applicant, in effect, is seeking to rely on two different statements of claim in the proceeding. In light of what we have described as the tortured history of the interlocutory proceedings in the case, in our view the criticisms made by Dixon J of the conduct of the applicant in the proceedings, in his Honour’s reasons dated 3 December 2014, are soundly based.
In this regard, we do not consider that the traditional reluctance of courts to order that a plaintiff/appellant provide security for costs in personal injury claims is of any assistance to the applicant in this case. It has been remarked, on a number of occasions, that it is virtually ‘unheard of’ for a plaintiff/appellant, in a personal injury case, to be ordered to provide security. Indeed, it is extremely rare for a defendant/respondent, in such a case, to venture to an appellate court to seek such an order.[10] As pointed out by White J in the case of McVicar v S & J White Pty Ltd,[11] there are particular reasons for that long and well established practice. They include that ‘… the courts have recognised the special interest of those whose physical or mental integrity has been compromised by injury to vindicate their rights’.[12] The same considerations do not apply to other proceedings in tort that are brought to vindicate personal rights, including claims for defamation. There are sound reasons for the maintenance of that practice in personal injury claims, that are not relevant to other such claims in tort. Accordingly, we reject the submission made on behalf of the applicant that the same practice should be extended to appeals by plaintiffs in defamation cases.
[10]See for example De Groot v The Nominal Defendant [2004] NSWCA 88, [29] (Handley JA); Wood v Merck Sharp & Dohme (Australia) Pty Ltd (2000) NSWDDT 8, [19] (O’Meally P).
[11][2006] SASC 233 (White J).
[12]Ibid, [24].
As the applicant is unrepresented in this application, it is undesirable to engage in any detailed analysis of the prospects of success by him on the application for leave to appeal, or, if leave is granted, the appeal. Nevertheless, such an assessment is relevant to the question whether an order for security for costs should be made in this case, particularly in light of the impecuniosity of the applicant, and his conduct of the proceedings to date.
In our view, as a preliminary assessment, the reasons given by Dixon J for his decision on 21 November 2014 are sound. As noted, the amended statement of claim, introducing, for the first time, an allegation that the first respondent was in some way responsible for the ‘church hall’ words, was the fifth attempt by the applicant to amend his pleadings. That amended pleading was served more than 18 months after the commencement of the proceeding. On its face, the cause of action, sought to be alleged against the first respondent in respect of the church hall words, was not properly pleaded. The proposed particulars reveal that the applicant does not have any factual basis, upon which to allege a cause of action against the first respondent, other than that, for some reason, the first respondent ‘must have suggested’ that the second and third respondents published the church hall words concerning the applicant. Those particulars are not proper particulars. As a matter of form, if nothing else, the proposed amendment was clearly demurrable.
In addition, as we have noted, the pleading served on 18 November 2014 was the first occasion upon which the applicant sought to assert liability against the first respondent in respect of the church hall words. The amendment was sought to be introduced two years and nine months after the alleged incident in which the cause of action was based. The applicant did not file any material demonstrating why it would not have been reasonable for him to commence proceedings against the first respondent, based on those words, within 12 months of the incident, particularly in light of the fact that he had already commenced a proceeding, based on that incident, against the second and third respondents within the time prescribed by s 5(1)AAA of the Defamation Act. It is not necessary, for the purposes of resolution of this application, for this court to consider the interrelationship between that provision and s 34 of the Limitation of Actions Act, or the matters canvassed by Ormiston JA in Agtrack (NT) Pty Ltd v Hatfield.[13] Ultimately, the power to permit an amendment to a pleading is discretionary. At the very least, that discretion must be informed by the prescribed time limit. The applicant has not sought to demonstrate, in any way, why he did not commence the proceeding against the first respondent, in respect of the church hall words, within the period of 12 months of those words being spoken, and why it would not have been reasonable for him to have done so.[14]
[13](2003) 7 VR 63, 104–5 [81]–[83].
[14]See for example Casley v Australian Broadcasting Corporation [2013] VSC 251, [28] (Beach J).
Finally, as a discretionary matter, the applicant has not provided any material explaining why, more than 22 months after the commencement of the proceeding, he sought, for the first time, to introduce the new allegation in it against the first respondent. On the face of the proposed amended pleading, this is not a case in which the applicant had, for the first time, discovered new information of which he was hitherto unaware. Rather, as we have observed, the applicant relies solely on an inference (or speculation) that the first respondent ‘must have been’ responsible for the publication of the church hall words. No explanation has been given why the applicant delayed, for such a long period of time, before seeking to make that allegation in a pleading against the first respondent.
Based on all those matters, this is clearly a case in which it is appropriate that this court make an order for security for costs against the applicant.
No materials were put before the court challenging the estimate made by the respondents’ solicitors as to the likely costs of the application for leave to appeal and, if leave were granted, the appeal. On their face the estimates made by the respondents’ solicitors seem reasonable. However, we would anticipate that it is most likely that the leave application, and, if leave be granted, the appeal, would be heard at the same time. Accordingly, it is sufficient to make an order that the applicant, at this stage, provide security for costs in the sum of $40,000, with liberty to the respondents to apply for further security, if the application for leave and the appeal are not heard together.
Postscript
At the conclusion of argument, we acknowledged, and expressed gratitude to, Mr J Ribbands and Dr K Weston-Scheuber, who appeared pro bono on behalf of the applicant in respect of both applications. It is appropriate that we record that acknowledgement in these reasons for judgment, and repeat our gratitude to them for their assistance to the court in appearing on behalf of the applicant. The appearance and assistance by counsel, pro bono, was consistent with the highest traditions of the Victorian Bar and the legal profession, and, in cases such as these, is of significant assistance in facilitating the course of justice.
Conclusion
For the foregoing reasons, we have reached the following conclusions:
(1)The application by the applicant for an extension of time within which to apply for leave to appeal from the Order of Dixon J dated 23 October 2014 should be refused.
(2)The application for an extension of time within which to apply for leave to appeal from the Order of Dixon J dated 21 November 2014 be allowed, such time being extended to 24 December 2014.
(3)By 4.00 pm on 1 December 2015 the applicant provide to the Associate Judge who is the Senior Master, by payment into Court or in another form acceptable to that Associate Judge, security for the respondents’ costs of the application for leave to appeal from the Order of Dixon J dated 21 November 2014 in the sum of $40,000.
(4)If such security is not provided by 4.00 pm on 1 December 2015, the application is stayed until further order.
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