Virginia Giles v David Jeffrey and Thomas Curnow
[2017] VSCA 144
•20 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0036
| VIRGINIA GILES | Applicant |
| v | |
| DAVID JEFFREY and THOMAS CURNOW | Respondents |
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| JUDGES: | WHELAN and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 20 June 2017 |
| DATE OF JUDGMENT: | 20 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 144 |
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PRACTICE AND PROCEDURE – Application for a stay pending application for special leave to appeal to High Court – Application for a stay of enforcement of costs orders – Application for a stay of taxation of bills of costs – High Court special leave applications alleging fraud – Whether special circumstances justifying a stay demonstrated – Insufficient prospects of obtaining special leave – Application for stay refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondents | Mr A G Southall QC with Ms F C Spencer | Ken Smith & Associates |
WHELAN JA
BEACH JA:
This is an application for the stay of costs orders made in the Trial Division on 11 March 2016 and in this Court on 14 December 2016. The history of the proceedings between the parties is summarised in this Court’s reasons for judgment published on 14 December 2016.[1] In short:
[1]Giles v Jeffrey [2016] VSCA 314 [1]–[16].
1. The applicant was the defendant in defamation proceedings brought by the respondents. The defamation proceeding was tried by Pagone J over seven days in April 2013. While judgment was reserved, the applicant filed a summons against the respondents pursuant to s 29 of the Civil Procedure Act 2010 (‘the CPA’) seeking compensation and costs on the basis that the respondents’ conduct of the defamation proceeding involved breaches of some of their overarching obligations under the CPA. The alleged breaches included that the respondents deliberately lied on oath in the defamation proceeding.
2. On 23 May 2013, Pagone J published reasons for judgment[2] in which he found that the applicant had defamed the respondents and awarded damages to them. Pagone J declined to deal with the CPA summons. Interim costs orders were made.
[2]Jeffrey v Giles [2013] VSC 268.
3. The applicant applied for leave to appeal to appeal against Pagone J’s interim costs orders, and the respondents appealed against the quantum of damages. On 24 April 2015, this Court upheld the respondents’ appeal on quantum, but refused to grant leave to appeal to the applicant in respect of the interim costs orders.[3] The question of whether Pagone J’s interim costs orders should be amended was referred by the Court to the judge hearing the CPA summons that was then outstanding (McDonald J).
[3]Jeffrey v Giles [2015] VSCA 70.
4. On 31 May 2015, the applicant filed a further summons against the respondents, seeking to replace Pagone J’s interim costs orders with orders that the respondents pay part of her costs of the defamation proceeding.
5. On 5 February 2016, following a hearing in the Trial Division, McDonald J determined that Pagone J’s interim costs orders should be amended, so as to require the applicant to pay the respondents’ costs of the defamation proceeding (other than in relation to their claim for aggravated damages) on an indemnity basis. McDonald J also held that no relief should be granted to the applicant pursuant to either of her summonses.[4] On 11 March 2016, McDonald J determined that the applicant should pay the respondents’ costs of the CPA summons on an indemnity basis.[5]
6. The applicant applied for leave to appeal in relation to the orders of McDonald J. On that application, the applicant sought to adduce fresh evidence and applied for orders compelling the respondents to appear in the Court of Appeal to be cross-examined. Those applications were refused. On 14 December 2016, this Court refused the applicant leave to appeal in relation to the orders of McDonald J, and ordered the applicant to pay the respondents’ costs.
[4]Jeffrey v Giles[No 2] [2016] VSC 2.
[5]Jeffrey v Giles [No 3] [2016] VSC 78.
On 17 May 2017, the applicant filed three applications for special leave to appeal to the High Court. The applications contain many grounds, all of which appear to be centred around an allegation that the respondents have lied and perpetrated frauds on the various courts that have heard the different proceedings between the parties.
The respondents have served on the applicant bills of costs in relation to the orders made in their favour in the Trial Division. On 26 April 2017, the respondents served a summons for the taxation of the bills. A mediation conducted in relation to that summons was held on 25 May 2017. The mediation did not resolve the matter. The taxation of the Trial Division costs orders is scheduled to commence on 28 August 2017. As at present, the respondents have not yet served any bill of costs in relation to this Court’s orders made on 14 December 2016.
In her stay application, the applicant has stated the reason for her application for a stay is that she has ‘applications before the High Court regarding the fact that the respondents each collaborated and colluded together and with their team in perpetrating fraud upon the Court and myself’. Moreover, the applicant asserts that ‘the very bills of costs served on me have proved the respondents’ collusion and collaboration, as well as many of the matters that I will prove to the High Court’.
In determining whether to grant a stay, a relevant consideration is whether there is a substantial prospect that special leave to appeal will be granted.[6] That is not to say that the prospects of success on the application for special leave must be high.[7]
[6]Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd[No 1] [1986] 161 CLR 681, 685.
[7]Mercanti v Mercanti (2017) 91 ALJR 258, 260 [11].
Having examined the applicant’s material, and read for ourselves the various reasons for judgment to which we have referred, we are not persuaded that the applicant enjoys any real prospect of obtaining special leave to appeal to the High Court.
More generally, the jurisdiction to grant a stay pending an application for special leave has been described by this Court as an ‘extraordinary jurisdiction’.[8] The jurisdiction will not be exercised unless special circumstances are demonstrated. The possibility that an appeal will be rendered nugatory unless a stay is granted is one potential such circumstance. Costs orders give rise to particular difficulties for applicants in establishing this circumstance.[9]
[8]Sunland Waterfront (BVI) Ltd and Anor v Prudential Investments Pty Ltd [2013] VSCA 266, [15]
[9]Ibid, [17]-[21]
The applicant has filed no material suggesting that her applications for special leave, and any consequent appeals were leave to be granted, would be rendered nugatory unless the stay she seeks were granted. She did in the course of her oral submissions assert that if the costs orders are enforced she would become bankrupt. The respondents had been given no prior notice of an intention to rely on that matter and no material in support of it has been filed. We are not able to take that assertion into account on this application.
We are not persuaded that it is appropriate to order a stay of the taxation of costs currently fixed for hearing in late August 2017 on the basis of the material filed in support of this application. The position may be different if the applicant is able to obtain special leave between now and the commencement of the taxation.
The applicant’s application for a stay must be refused.
[Discussion as to costs.]
The application is dismissed. The applicant is to pay the respondents’ costs on the standard basis.
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