Weiden v YZ (a pseudonym) - [2023] VSCA 258

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0053

ALAN WEIDEN	Applicant
v
YZ (A PSEUDONYM)	First Respondent
BEIT HABONIM PTY LTD (ACN 051 827 984) AS TRUSTEE OF THE ASSOCIATION OF PARENTS & FRIENDS OF ZIONIST YOUTH	Second Respondent

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JUDGES:	BEACH and MACAULAY JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	26 October 2023
DATE OF JUDGMENT:	26 October 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 258
JUDGMENT APPEALED FROM:	[2023] VSC 222 (Tsalamandris J)

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PRACTICE AND PROCEDURE – Security for costs – Application for leave to appeal – Delay – Application for security for costs made four months after application for leave to appeal filed – Application made less than two months before date on which application for leave to appeal fixed for hearing – Delay unacceptable – Application for security for costs dismissed.

Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd (1998) 193 CLR 502; Wu v Bi [2022] VSCA 22 and Hoser v Pelley [2023] VSCA 1 referred to.

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Counsel
Applicant:	Mr MJ Latham
First Respondent:	Mr S McCredie
Second Respondent:	No appearance
Solicitors
Applicant:	Destra Law
First Respondent:	Mazzeo Lawyers
Second Respondent:	Wotton + Kearney

BEACH JA
MACAULAY JA:

In November 2019, YZ (the plaintiff) commenced a proceeding claiming damages for personal injuries he alleges he suffered as a result of sexual assaults perpetrated on him between late December 1974 and late January/early February 1975. The plaintiff was a member of Beit Habonim Pty Ltd (the first defendant). He alleges that the sexual assaults were committed by another member of the first defendant, Alan Weiden (the second defendant). His case against the first defendant is that it is vicariously liable for the tortious conduct of the second defendant and/or negligent in its supervision of him and failure to implement protective systems to minimise the risk of harm to its members from sexual misconduct.
On 17 May 2022, the second defendant filed a summons seeking a permanent stay of the plaintiff’s proceeding on the basis that it was an abuse of process. In the alternative, the second defendant sought an order staying the proceeding ‘until such time that it had been determined that there was no prospect of any criminal proceeding being brought against the second defendant’. On 15 July 2022, following a hearing on 7 June 2022, the second defendant’s stay application was dismissed by Irving AsJ.[1]
[1]YZ v Beit Habonim Pty Ltd [2022] VSC 402.
On 29 July 2022, the second defendant filed a notice of appeal from the orders of Irving AsJ. On 30 September 2022, Matthews AsJ (as her Honour then was) made an order requiring the second defendant to pay $15,000 as security for the plaintiff’s costs in relation to the appeal from the orders of Irving AsJ. On 2 May 2023, following a hearing on 21 February 2023, the second defendant’s appeal from the orders of Irving AsJ was dismissed by Tsalamandris J.[2]
[2]YZ v Beit Habonim Pty…

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 Weiden v YZ (a pseudonym)

Details

AGLC: Weiden v YZ (a pseudonym) [2023] VSCA 258
Case: [2023] VSCA 258
Decision Date: 26 October 2023

CaseChat Overview and Summary

The matter before the court involved a dispute between Weiden and YZ, where Weiden sought security for costs. The application was lodged four months after Weiden filed an application for leave to appeal, and it was made less than two months before the appeal hearing date. The court had to determine the acceptability of the delay in making the application for security for costs.

The legal issue before the court was whether the delay in applying for security for costs was acceptable, given the circumstances. The court considered whether the delay prejudiced YZ and whether the delay was unreasonable. The court also examined relevant case law, including Merribee Pastoral Industries Pty Ltd v Australia and New Zealand Banking Group Ltd, Wu v Bi, and Hoser v Pelley, to determine the appropriate course of action.

The court found that the delay in applying for security for costs was unacceptable, given the short time frame between the application and the appeal hearing. The court held that the delay prejudiced YZ, as they were not given sufficient time to prepare a response to the application. Furthermore, the court found that the delay was unreasonable, as the application for security for costs was made four months after the application for leave to appeal was filed. Consequently, the court dismissed the application for security for costs.

No further orders were made by the court in this matter.

Orders