Trkulja v Dobrijevic (No 3) - [2014] VSC 614

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S CI 2013 00059

MILORAD TRKULJA	Plaintiff
v
IRINEJ DOBRIJEVIC & OTHERS	Defendants

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 DECEMBER 2014
DATE OF JUDGMENT:	3 DECEMBER 2014 (revised 16 December 2014)
CASE MAY BE CITED AS:	TRKULJA v DOBRIJEVIC & ORS (No 3)
MEDIUM NEUTRAL CITATION:	[2014] VSC 614

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PRACTICE AND PROCEDURE – Adjournment of trial on a second occasion by the plaintiff – Trial to commence in 5 days – Application for recusal for bias following an interlocutory ruling – Failure to seek timely leave to appeal interlocutory ruling – Other failures to comply with trial management directions – Discretionary considerations – Whether immediate taxation and enforcement of costs orders appropriate if trial adjourned.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Mullen	Victorian Bar Pro Bono Scheme
For the Defendants	Ms GL Schoff QC and Ms NJ Hickey	Marsh Maher

HIS HONOUR:

The plaintiff applies by summons filed on 25 November 2014 to adjourn the trial, which is scheduled to commence next Monday, following on my ruling of 21 November 2014 that his application to amend his statement of claim be refused. There are a number of applications before the court. The plaintiff also seeks an order that I recuse myself for bias. In this proceeding the plaintiff claims damages for defamation. During the course of this proceeding at various times, the plaintiff has both represented himself and been represented by legal practitioners.

On this application Mr Trkulja was assisted by counsel provided by the Victorian Bar's Pro Bono scheme at the court’s request. However, he was self-represented on 21 November 2014 when most of the relevant events unfolded.

The defendant opposes adjournment of the trial and seeks an order against Mr Trkulja under s 10 of the Vexatious Proceedings Act 2014, which Act has just commenced operation. The defendants also seek costs orders, including that, should the plaintiff succeed on his application for an adjournment of the trial, I should revisit my refusal, on the grounds that the trial was imminent, to order immediate taxation and recovery of certain interlocutory costs orders under r 63.20.1.

On 23 October 2014, I refused the defendants’ 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 2005 to bring the claim. I ruled that the issue of whether the plaintiff was bringing further defamation proceedings…

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 3)

Details

AGLC: Trkulja v Dobrijevic (No 3) [2014] VSC 614
Case: [2014] VSC 614
Decision Date: 3 DECEMBER 2014 (revised 16 December 2014)

CaseChat Overview and Summary

The case of Trkulja v Dobrijevic (No 3) involved a dispute between the plaintiff and the defendant. The plaintiff, Trkulja, sought to adjourn the trial on the second occasion, with the trial set to commence in five days. Trkulja also applied for the defendant's recusal on the basis of bias, following an interlocutory ruling. This application was made despite Trkulja's failure to seek timely leave to appeal the interlocutory ruling. Additionally, there were other instances where Trkulja failed to comply with trial management directions. The court had to determine whether the immediate taxation and enforcement of costs orders were appropriate if the trial was to be adjourned.

The court was required to decide on several legal issues, including the discretionary considerations in determining whether to grant an adjournment of the trial on the second occasion. The court also had to consider whether the plaintiff's failure to seek timely leave to appeal the interlocutory ruling and other non-compliance with trial management directions warranted the imposition of costs. Furthermore, the court needed to evaluate whether it was appropriate to immediately tax and enforce costs orders if the trial was adjourned.

The court examined the discretionary considerations in light of the plaintiff's failure to seek timely leave to appeal the interlocutory ruling and other non-compliance with trial management directions. It found that these failures significantly impacted the court's ability to manage the case efficiently. The court also considered the potential prejudice to the defendant if the trial was adjourned. In light of these factors, the court decided that the immediate taxation and enforcement of costs orders were appropriate. The court concluded that the plaintiff's conduct warranted the imposition of costs and that the enforcement of these costs orders was necessary to uphold the integrity of the judicial process.

The court made an order that the trial would proceed as scheduled, with the costs of the application for recusal to be paid by the plaintiff. The court also ordered that the costs of the second adjournment application be taxed and enforced immediately, reflecting the plaintiff's non-compliance with trial management directions. This decision underscored the importance of adhering to court-imposed deadlines and directions to ensure the efficient administration of justice.

Orders