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Cite as: December 2013 87 (12) LIJ, p.67

Recent appeals involving procedural matters

Slaveska v Elenchevski [2013] VSCA 283 (unreported, 9 October 2013, S APCI 2012 0071, Warren CJ, Neave and Priest JJA).

This appeal concerned orders striking out proceedings for want of prosecution under rls 23.01, 23.02 and 23.03 of the County Court Civil Procedure Rules 2008.

The principal dispute arose under a contract for the sale and purchase of land in Macedonia said to have been entered into by the appellant and the respondent. The respondent denied the existence of that agreement. There had been litigation in Macedonia which on one view had given rise to res judicata or an issue estoppel in relation to the existence of the contract. There was an issue in relation to the statute of limitations. The appellant alleged that the time prescribed by the statute did not commence to run by reason of alleged fraud on the part of the respondent. This had never been pleaded by the appellant by way of reply to the respondent’s defence or otherwise.

There had been numerous delays (six trial dates had been vacated) and defaults by the appellant in relation to court orders. A County Court judge had struck out the appellant’s proceeding commenced in November 2008 by solicitors on her behalf. The appellant had been unrepresented by solicitors from July 2009.

Neave JA with whom the other members of the Court agreed, said at [34]–[37]:

“In my opinion the judge could have summarily dismissed the proceeding or struck out the appellant’s pleading under rules 23.01, 23.02 of the County Court Civil Procedure Rules 2008 and under ss62 and 63 of the Civil Procedure Act 2010, on the basis that the claim had no real prospect of success. In Lysaught Building Solutions Pty Ltd v Blanalko Pty Ltd Warren CJ and Nettle JA said:

a) the test for summary judgment under s63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a “real” as opposed to a fanciful chance of success; . . .

c) it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;

d) at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless of whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.

“The same principles would appear to apply to an application to strike out the proceedings for want of prosecution.

“The principles which govern the dismissal of proceedings for want of prosecution are well established. In Spitfire Nominees Pty Ltd & Anor v Hall & Thompson (a firm) this Court set out the principles articulated by the English Court of Appeal in Allen v Sir Alfred McAlpine & Sons Ltd and approved by the decision of the House of Lords in Birkett v James. These were that:

The power should be exercised only where the Court is satisfied either (1) that the default has been intentional and contumelious, e.g. disobedience to a peremptory order of the Court or conduct amounting to an abuse of the process of the Court; or (2)(a) that there has been inordinate and inexcusable delay on the part of the plaintiff or his lawyers, and (b) that such delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as likely to cause or to have caused serious prejudice to the defendants, either as between themselves and the plaintiffs, or between each other, or between them and a third party.

“The judge correctly stated the principles relating to the dismissal of proceedings for want of prosecution. In my opinion he also applied them correctly to the facts in this case”. [ [Endnotes omitted]

The appeal was dismissed.

The case illustrates the difficulty almost inevitably encountered where a party conducts litigation without legal representation.

Rolfe v Investec Bank (Australia) Limited [2013] VSCA 293 (unreported, 18 October 2013, S APCI 2013 0002, Osborn and Santamaria JJA).

The respondent applied to the Court of Appeal for an order that the appellant provide security for the costs of the appeal. That application was made under r64.24(2) of the Supreme Court (General Civil Procedure) Rules 2005.

The appellant argued that there had been delay in making the application and that the application for security should be refused. Notice of appeal had been given on 2 January 2013 and the summons seeking security filed on 15 August 2013. The respondent contended that the appellant had failed to show prejudice resulting from any delay.

The Court noted at [48] that: “Counsel for the appellant said that there was a difference between applications for security before trial and those on appeal. Not only were such applications regulated by different rules, the principles that governed them were not identical. For example, security was rarely ordered against a natural person plaintiff before trial; but, after a claim has proved unsuccessful, security will more readily be ordered against such a litigant. In particular, applications in appeals had to be made promptly. Reference was made to Re Indian, Kingston and Sandhurst Mining Co, Re William Henry Vagg, Ellis v Stewart, and Ryan v Johnston (No 1)”.[Endnotes omitted]

The Court was satisfied that there had been delay, some of it explained. The Court was not satisfied that the respondent had prosecuted its entitlement to security in a timely way. The application for security was refused.



PROFESSOR GREG REINHARDT is executive director of the Australasian Institute of Judicial Administration and a member of the Faculty of Law at Monash University, ph 9600 1311, email Gregory.Reinhardt@monash.edu. The numbers in square brackets in the text refer to the paragraph numbers in the judgment. The full version of this judgment can be found at www.austlii.edu.au.

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