Victorian Legal Services Commissioner v Beling (No 4)

[2021] VCC 1021

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMERCIAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CI-19-03745

FIONA RUTH McLEAY as VICTORIAN LEGAL SERVICES COMMISSIONER	Plaintiff
V
JOEL LORENSZ BELING	Defendant

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JUDGE:	HER HONOUR JUDGE A RYAN
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2021
DATE OF RULING:	30 July 2021
CASE MAY BE CITED AS:	Victorian Legal Services Commissioner v Beling (No 4)
MEDIUM NEUTRAL CITATION:	[2021] VCC 1021

COSTS RULING
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Subject:PRACTICE AND PROCEDURE – COSTS

Catchwords:  Costs orders following an interlocutory ruling – whether decision on costs should be stayed

Cases Cited:Beling v Victorian Legal Services Commissioner [2021] VSC 390; Paragreen v Lim Group Holdings (No 2) [2020] VSCA 97

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M G McNamara	White Cleland
For the Defendant	Mr Beling in person

HER HONOUR:

1On 23 June 2021, I delivered reasons for ruling (“the principal reasons”) regarding interlocutory applications made by the plaintiff (“the Commissioner”) and the defendant (“Beling”).

2The parties were directed to file written submissions if they were unable to agree on the form of orders, including costs, consequent upon the principal reasons.  Final orders were to be made on the papers unless the Court considered an oral hearing was necessary.  The parties did not reach agreement on the form of orders.  The Commissioner submitted the matter could be dealt with on the papers.  Beling requested a short oral hearing be held towards the end of July 2021.  Pursuant to his request, I listed the matter for an oral hearing on 27 July 2021.

3Beling filed the following material in support of his submissions:

(a)   costs submissions dated 2 July 2021;

(b)   an affidavit sworn by Beling dated 1 July 2021;

(c)   a copy of an affidavit filed in the Supreme Court of Victoria sworn by Beling dated 25 May 2020;

(d)   a copy of a decision of Ginnane J in the Supreme Court, being Beling v Victorian Legal Services Commissioner [2021] VSC 390 dated 1 July 2021;

(e)   reply submissions which were undated.

4The Commissioner filed submissions on costs and the proposed form of orders dated 1 July 2021, together with reply submissions dated 5 July 2021.

(a)Commissioner’s submissions

5Consistent with the indication given in paragraph 84 of the principal reasons, the Commissioner sought an order that Beling pay her costs of the proceeding, including the costs of the applications the subject of the ruling given on 23 June 2021, on a standard basis.  This order was sought on the usual basis that costs follow the event, and that a successful party should recover its costs.[1]  The Commissioner contends there is no reason to depart from the usual course in this proceeding.

[1]Paragreen v Lim Group Holdings (No 2) [2020] VSCA 97 at [5].

6The Commissioner provided a proposed minute of order which included calculations of interest from 13 August 2019, being the date upon which the writ and statement of claim was filed.

(b)Beling’s submissions

7Beling sought a stay of the decision on costs based on reasonable grounds of appeal.  Beling informed the Court that he had lodged appeal documents with the Court of Appeal in respect of my decision, an earlier decision of Judge Cosgrave, and a decision of Ginnane J on 1 July 2021 in the Supreme Court.  He submitted any decision on costs in this application should be reserved pending a decision on his appeals to the Court of Appeal.

8Beling contends the principal reasons are wrong because of the change of position by the Commissioner in relation to alleged fraudulent misrepresentation No 3.  The submissions then set out in some detail further allegations of alleged misconduct on the part of the Commissioner and/or her legal representatives.  Beling claims to be entitled to an order for payment of his disbursements payable by the Commissioner and/or her legal representatives personally.  Failing that, Beling submits that there should be no order as to costs or that an Appeal Costs Fund Certificate be issued for the Commissioner’s errors and misconduct.

9The principal complaint made is that the Commissioner has somehow misled this Court because the Commissioner consented to proposed amendments to notices of appeal filed by Beling in a proceeding in the Supreme Court before his Honour Ginnane J.  Beling proceeds on a misapprehension that by giving consent to the proposed notices of appeal, this is tantamount to an admission by the Commissioner of the matters alleged which gives rise to wrongdoing on her part.  This belief is misguided.  There then follows further allegations of misconduct by the Commissioner, particularly in paragraph 14 of the submissions and following, which are voluminous and difficult to follow.  These complaints reiterate the general complaints made by Beling on many occasions previously, both in this Court and in other forums.

10In his reply submissions, Beling maintains the Court has no power to award costs in this case because the decision in the principal reasons has been overruled by a higher Court; namely, by the decision of Ginnane J in Beling v Victorian Legal Services Commissioner [2021] VSC 390 dated 1 July 2021. Consequently, Beling submitted that this Court’s previous decisions by me and Judge Cosgrave are null and void and have no legal effect. He contended that this Court had no jurisdiction to hear a decision on costs pursuant to s37(2)(d) of the County Court Act.

11The reply submissions then proceed to make repeated allegations of misconduct both on the part of the Commissioner and various other judicial officers.  Beling argued the fact the Commissioner had not sought an oral hearing on costs gave rise to an adverse inference on her part which showed a lack of merits or an abuse of process.  Beling referred to passages in the Freeman affidavit which denied the allegation of file tampering which he said conflicted with the Commissioner’s consent to the filing of the appeal notices before Ginnane J.  When questioned that the consent by the Commissioner to the filing of appeal notices did not mean an admission on her part of the truth of the allegations in the notices, Beling’s response was that it was a short leap which the Court could comfortably draw between consent and admission.

12Beling argued the reply submissions of the Commissioner should be disregarded because the submissions did not respond in detail to the matters he had raised and there was no alternative version of events given.  He also complained that the Commissioner’s legal representatives had been in breach of their duties as practitioners citing various authorities about the standard required.

(c)Commissioner’s submissions in reply

13The Commissioner says in response there is no basis for the Court to defer making a decision on costs.  She said an apparent intention on the part of Beling to seek to appeal, and a contention as to the reasonable prospects of success of appeal, does not justify the Court declining to adjudicate upon the question of costs pending a foreshadowed appeal.  Nor did any suggested appeal of the decision given by Ginnane J provide a reason to defer a decision on costs.

14Contrary to Beling’s submissions, the Commissioner states:

(i)    the Commissioner has not changed her position with respect to the third alleged fraudulent misrepresentation;

(ii)   the Commissioner has not failed to comply with the provisions of the Civil Procedure Act; and

(iii)   the Commissioner has engaged in no misconduct.

15It was said that there are no matters raised that mean that costs should not follow the event, and there is no occasion for the Commissioner, or her legal representatives personally, to pay Beling’s disbursements.  Further, the Appeal Costs Act 1998 (Vic) has no operation with respect to this proceeding.

16The Commissioner’s submissions then went on to deal with the circumstances regarding the filing of the amended notices of appeal in the proceeding before Ginnane J.  It was noted that despite the consents provided by the Commissioner, Ginnane J refused Beling’s application to file and serve two of the notices of appeal.  As the Commissioner points out, her consent to the filing of the notices of appeal does not constitute an admission of the matters alleged and is in no way contrary to the submissions made by the Commissioner to this Court.  It was said there is no reason for the Commissioner to inform this Court of her position in respect of the three proposed amended notices of appeal.  In failing to do so, the Commissioner and her legal representatives did not mislead this Court or abuse the processes of the Court.  The decision of Ginnane J did not overrule my decision or the earlier decision of Judge Cosgrave.

17There was no basis for drawing any adverse inference against the Commissioner because she did not seek an oral hearing on costs and was content to rely upon written submissions.

18It was then said that the allegations advanced by Beling, which include many serious allegations of wrongdoing, represent his latest attempt to agitate grievances concerning matters stretching back to 3 June 2014.  They are in no way relevant to the disposition of the question of costs in this proceeding.

Analysis

19It is clear from the principal reasons that Beling was unsuccessful, in that none of the relief that he sought by way of summons filed 25 August 2020 was granted.  The Commissioner was successful in her application for summary judgment.  In my view, there is no reason why costs should not follow the event; and the Commissioner, being the successful party, should receive her costs on the standard basis.

20There is no basis for staying the decision on costs of the application, being the outcome sought by Beling.  The applications have been heard and final orders must be made consequent upon the findings in the principal reasons.  The fact  that Beling has foreshadowed an appeal does not mean that final orders should not now be made.

21None of the matters relied upon by Beling provide any basis upon which the decision on costs consequent upon my earlier ruling should be stayed.  The Commissioner has not admitted to any wrongdoing on her part by agreeing to the filing of the notices of appeal in the proceeding before Ginnane J.  The proceeding before Ginnane J which relates to the extension of time sought to appeal a decision of VCAT over four years ago is not the same as the claim before this Court which relates to the Commissioner’s entitlement to recover an agreed sum under a Deed of Settlement.  The two matters are discrete from the other.  Contrary to Beling’s submission, the decision made by Ginnane J regarding procedural orders in the application before his Honour to review the Judicial Registrar’s decision in the Supreme Court does not bind this Court in this proceeding.  Any allegations of misconduct against the Commissioner’s legal representatives are unfounded and are irrelevant to the decision to be made on costs.  I was not persuaded by any of the arguments raised by Beling that the Court’s decision on costs should be stayed.

22In paragraph 83 of the principal reasons, I listed the orders I was proposing to make and invited the parties to make submissions on the final form of orders, including costs.  In the proposed minute of order filed by the Commissioner, the Commissioner seeks an order confirming that Beling’s application for summary judgment based on his proposed defence and counterclaim dated 30 July 2020 be dismissed.  This was the order sought in paragraph 2 of his summons filed 25 August 2020.  The proposed order in paragraph 83(b) of the principal reasons referred to dismissing the defendant’s application “to strike out the plaintiff’s claim” based on his proposed defence and counterclaim.  This proposed order was intended to deal with order 2 of the summons by which Beling sought summary judgment based on the proposed pleading.

23In the principal reasons, I refused leave for Beling to file his proposed amended defence and counterclaim.  There being no extant pleading on foot, it follows that Beling is not entitled to summary judgment based upon a document for which leave was not granted.  In the oral hearing on 27 July 2021, Beling contended that no decision had been made by the Court on his application for summary judgment.  I reject this submission as paragraphs 51 to 53 of the principal reasons make clear why the Court was not prepared to order summary judgment in favour of Beling, being the relief sought in paragraph 2 of his summons.  I will make the amendment to the proposed orders sought by the Commissioner relating to the dismissal of Beling’s summary judgment application, as it correlates with the wording in paragraph 2 of Beling’s summons filed 25 August 2020 which had been my intention.

24Accordingly, I will order as follows:

1.     The defendant’s application for leave to file and serve his proposed defence and counterclaim dated 30 July 2020 is refused.

2.     The defendant’s application for summary judgment based on his proposed defence and counterclaim dated 30 July 2020 is dismissed.

3.     The defendant’s application to strike out part or all of the plaintiff’s statement of claim dated 13 August 2019 is dismissed.

4.     The defendant’s summons filed 25 August 2020 is otherwise dismissed.

5.     There be judgment for the plaintiff in the sum of $207,767.15, together with interest pursuant to statute in the sum of $36,560.38 for the period from 13 August 2019 to 23 June 2021 (being the date of the principal reasons), together with further interest pursuant to statute at the rate of $56.92 per day from 24 June 2021 to 30 July 2021 in the sum of $2,049.

6.     The defendant pay the plaintiff’s costs of this proceeding, including reserved costs, on a standard basis, including the costs of and incidental to the plaintiff’s summons filed 13 March 2020 and the defendant’s summons filed 25 August 2020, such costs to be taxed in default of agreement.

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Certificate

I certify that these 8 pages are a true copy of the Reasons for Ruling of Her Honour Judge A Ryan delivered on 30 July 2021.

Dated:  30 July 2021

Associate to Her Honour Judge A Ryan