JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 August 2016
DATE OF JUDGMENT:	4 October 2016
CASE MAY BE CITED AS:	Trkulja v Dobrijevic (No 2)
MEDIUM NEUTRAL CITATION:	[2016] VSC 596

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PRACTICE – Security for costs – Inherent jurisdiction of the Supreme Court to order security for costs – Nature of cause of action – Prospects of success – Plaintiff bankrupt – Unpaid costs orders – Numerous statements of claim filed – Security for costs ordered

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	P. Heywood-Smith QC	George Liberogiannis & Associates
For the Defendant	D. Bracken	Marsh & Maher

HIS HONOUR:

Introduction

By order of the court on 25 July 2016, the fourth amended statement of claim in this defamation proceeding (‘the current proceeding’) was struck out.[1] The facts and circumstances relating to this proceeding are fully set out in the previous ruling.[2]
[1]Trkulja v Dobrjevic [2016] VSC 421.
[2]Ibid.

The defendant’s application for security for costs remains to be determined. The defendant seeks security for costs in the amount of $140,000 or such other amount as the Court considers appropriate.[3]
[3]Defendant’s summons dated 22 April 2016 [5].

The defendant relies on the affidavits of Nicola Sophie Drakeford dated 22 April 2016 (‘Ms Drakeford’s affidavit’) and of Anthony Thomas Maher dated 21 April 2016 (‘Mr Maher’s affidavit’).

Ms Drakeford’s affidavit

Ms Drakeford’s affidavit refers to statements of claim dated 9 February 2015, 22 February 2016, 21 March 2016, and 4 April 2016.[4] Two subsequent versions of the statement of claim have been filed on 17 August 2016 and 23 August 2016.
[4]Ms Drakeford’s affidavit [6].

It also refers to six other proceedings brought by the plaintiff against the defendant for defamation or discrimination in the Supreme Court, County Court and Victorian Civil and Administrative Tribunal (‘VCAT’).[5] There are three other proceedings issued by the plaintiff against the defendant or persons representing the Serbian Orthodox Church where preliminary discovery was sought.[6]
[5]Ibid [10]. The cases are Trkulja v Dobrijevic, Videkanic, Gudelj & Zabic: S CI 2013 00059 (Supreme Court - defamation); Trkulja v Videkanic & Gudelj: S CI 2014 01799 (Supreme Court - defamation); Trkulja v Dobrijevic: CI 15 007814 (County Court - defamation); Trkulja v Dobrijevic & St Archdeacon Stefan Serbian Orthodox Church: A6/2013 (VCAT - discrimination); Trkulja v Dobrijevic, Videkanic & Zabic: S APCI 2014 0156 (Supreme Court Court of Appeal - appeal of interlocutory orders in S CI 2013 00059); Trkulja v Dobrijevic & St Archdeacon Stefan Orthodox Church: S CI 2014 06014 (Supreme Court - appeal of interlocutory orders in the VCAT proceeding A6/2013).
[6]Ms Drakeford’s affidavit [11]. The cases are: Trkulja v Gudelj on behalf of the Serbian Church School Community St Archdeacon Stefan: S CI 2011 02125 (preliminary discovery proceeding); Trkuljua v…

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 (No 2)

Details

AGLC: Trkulja v Dobrijevic (No 2) [2016] VSC 596
Case: [2016] VSC 596
Decision Date: 4 October 2016

CaseChat Overview and Summary

In the matter of Trkulja v Dobrijevic (No 2), the parties were Trkulja, the plaintiff, and Dobrijevic, the defendant. The dispute arose from a series of legal actions initiated by the plaintiff against the defendant, involving claims for damages and other relief. The matter was heard in the Supreme Court of New South Wales. The primary focus of the case was whether the court had the inherent jurisdiction to order security for costs in light of the plaintiff's bankruptcy and the history of unpaid costs orders and multiple statements of claim filed.

The court was required to determine whether it had the inherent jurisdiction to order security for costs in a case where the plaintiff was bankrupt, had a history of unpaid costs orders, and had filed numerous statements of claim. The plaintiff argued that the nature of the cause of action and the prospects of success should be considered when ordering security for costs. The court had to balance these considerations with the inherent jurisdiction to manage its own proceedings.

The court found that it did have the inherent jurisdiction to order security for costs. It reasoned that the plaintiff's bankruptcy, history of unpaid costs orders, and the filing of numerous statements of claim indicated a pattern of conduct that warranted the court's intervention. The court emphasised that the inherent jurisdiction allowed it to manage its own proceedings and prevent an abuse of the legal process. Consequently, the court ordered the plaintiff to provide security for the defendant's costs. The court's decision was grounded in its power to ensure that the legal process was not misused and to protect the defendant from financial hardship.

Orders