Valassis v Bernard & Anor [2000] NSWSC 1025

Valassis v Bernard & Anor [2000] NSWSC 1025

The plaintiff's summons was obviously untenable because it sought to re-agitate matters finally determined by Dowd J after the appellate process had been exhausted, and therefore had no prospect of success. However, although the summons was vexatious in that sense, the history between the parties did not amount to habitual and persistent institution of proceedings against the first defendant, so the s84(2) order was not justified.

Jurisdiction
Australia
Judgment Date
26 October 2000
Procedural Posture
Common Law Division Proceedings Involving a Summons and a Motion for Summary Dismissal and an Order Under S84(2) of the Supreme Court Act 1970 / Ex Tempore Judgment on the First Defendant's Motion
Outcome
Plaintiff's summons dismissed; first defendant's application for an order under s84(2) of the Supreme Court Act 1970 dismissed; plaintiff ordered to pay the first defendant's costs of the motion, not on an indemnity basis.
Legal Topics
['vexatious Litigant Order' 'summary Dismissal' 're Agitation of Finally Determined Proceedings' 'appeal From Residential Tenancies Tribunal']
['civil Procedure' 'residential Tenancies'] ['vexatious Litigant Order' 'summary Dismissal' 're Agitation of Finally Determined Proceedings' 'appeal From Residential Tenancies Tribunal']

Case Brief

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Procedural Posture

Common Law Division Proceedings Involving a Summons and a Motion for Summary Dismissal and an Order Under S84(2) of the Supreme Court Act 1970 / Ex Tempore Judgment on the First Defendant's Motion

Legal Issues

  1. 1 ["Whether the plaintiff's summons seeking that proceedings before Dowd J be reheard in full had any prospect of success." 'Whether the plaintiff had habitually and persistently instituted proceedings against the first defendant so as to justify an order under s84(2) of the Supreme Court Act 1970.']

Ratio Decidendi

The plaintiff's summons was obviously untenable because it sought to re-agitate matters finally determined by Dowd J after the appellate process had been exhausted, and therefore had no prospect of success. However, although the summons was vexatious in that sense, the history between the parties did not amount to habitual and persistent institution of proceedings against the first defendant, so the s84(2) order was not justified.

Court Disposition

Plaintiff's summons dismissed; first defendant's application for an order under s84(2) of the Supreme Court Act 1970 dismissed; plaintiff ordered to pay the first defendant's costs of the motion, not on an indemnity basis.

Orders

  • ["The plaintiff's summons is dismissed." "The first defendant's application for an order under s84(2) of the Supreme Court Act 1970 is dismissed." "The plaintiff is to pay the defendant's costs of the motion." 'No order for costs on an indemnity basis.']