Giles v Jeffrey & Ors [2019] VSC 562

1 In 2002, Shapher Pty Ltd ('Shapher'), a company controlled by the plaintiff, Ms Giles, and her husband, purchased 43.15 hectares of rural land in Neerim North ('property'). Shapher is the trustee of the couple's self-managed superannuation fund. The property was leased to Country Endeavours Pty Ltd ('Country Endeavours'), a company also controlled by Ms Giles and her husband. Country Endeavours planned to conduct a mixed agricultural/accommodation business on the property, and ultimately, Mr and Mrs Giles intended to retire there.

2 These plans were disrupted by the purchase in May 2006 of an adjacent property by Casacir Pty Ltd ('Casacir'), the third defendant in this proceeding. Casacir was granted a work authority and planning permit to develop and operate a quarry operation on the neighbouring property in or about 2009, but only after strenuous opposition from Ms Giles and others, and protracted litigation at the Victorian Civil and Administrative Tribunal ('VCAT'). The first and second defendants in this proceeding, Mr David Jeffrey and Mr Thomas Curnow, are both directors and shareholders of Casacir. The fourth and fifth defendants ('lawyer defendants'), Mr Ken Smith and Mr Anthony Southall QC, are legal practitioners who have represented Casacir and Messrs Jeffrey and Curnow ('quarry defendants')[1] over time. Mr Smith, a solicitor, represented Casacir in the course of the litigation at VCAT ('VCAT proceedings'), and the quarry defendants in two proceedings in this Court. Mr Southall QC, a barrister, represented Casacir in an appeal from VCAT to this Court, and represented the quarry defendants in a proceeding brought by them in this Court against Ms Giles for defamation ('defamation proceeding'), including an ancillary proceeding ('s 29 application'), and two appeals to the Court of Appeal.

3 The defamation proceeding concerned remarks made by Ms Giles regarding the conduct of the quarry defendants on a website www.quarryfight.com.au ('website'). The s 29 application sought compensation from the quarry defendants for losses said to have been suffered by Ms Giles as a consequence of the manner in which the defendants (including the lawyer defendants) conducted the defamation proceeding.

4 A helpful summary of the disputes between the parties is to be found in a decision of the Court of Appeal in 2016 with respect to the s 29 application,[2] as follows (omitting footnotes):

The genesis of the dispute between the parties was the respondents' proposal to operate a quarry, through their company Casacir Pty Ltd ('Casacir'), on land adjoining land owned by one of the applicant's family companies, Shapher Pty Ltd ('Shapher'), at Neerim North ('Shapher land').

In 2008, the applicant and others applied to the Victorian Civil and Administrative Tribunal ('VCAT') for review of a decision by the Baw Shire Council ('Council') to grant a planning permit for the operation of the proposed quarry ('first VCAT proceeding'). On 19 January 2009, VCAT dismissed the first VCAT proceeding. In September 2009, another of the applicant's family companies, Country Endeavours Pty Ltd ('Country Endeavours'), which operated a farm business on the Shapher land, commenced an enforcement proceeding at VCAT against the Council, Casacir and the respondents alleging contraventions of various conditions in the planning permit ('second VCAT proceeding'). The first respondent ('Jeffrey') gave evidence in the second VCAT proceeding but the second respondent ('Curnow') did not do so. On 7 February 2011, VCAT dismissed the second VCAT proceeding.

In June 2011, the applicant established a website with the web address www.quarryfight.com.au ('Website'). From August 2011, the Website made adverse statements about Casacir, the respondents and the quarry, including that each of the respondents deliberately lied on oath in the second VCAT proceeding.

On 7 December 2011, the respondents commenced a proceeding in the Trial Division against the applicant alleging, among other causes of action, that the Website contained defamatory statements ('defamation proceeding'). The applicant was legally represented until 15 March 2013 and after that date she represented herself. Following a seven day trial in which both respondents gave evidence, Pagone J reserved judgment on 18 April 2013.

On 17 May 2013 - six days before Pagone J published his judgment - the applicant filed a summons against the respondents pursuant to s 29 of the CPA ('s 29 summons' or 's 29 application') 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.

On 23 May 2013, Pagone J found that the applicant had defamed the respondents and awarded damages of $12,000 to Jeffrey and $8,000 to Curnow. Pagone J declined to deal with the s 29 summons and the brief hearing that took place when he published his judgment did not afford the parties an opportunity to fully argue costs issues or to deal with the respondents' entitlement to interest pursuant to s 60(1) of the Supreme Court Act 1986. He made a costs order on the standard basis in favour of the respondents other than in relation to their claim for aggravated damages. The costs order was of an interim nature because it made provision for amendment depending on the outcome of the s 29 application.

The applicant applied for leave to appeal against Pagone J's interim costs order and the respondents appealed against the quantum of damages. The applicant was represented at the hearing of that application and appeal by counsel who appeared pro bono. On 24 April 2015, this Court upheld the respondents' appeal and substituted damages awards of $75,000 and $65,000 in favour of Jeffrey and Curnow, respectively. By majority, the Court refused to grant leave to appeal to the applicant. However, the Court referred to the judge hearing the s 29 summons the issues of whether Pagone J's interim costs order should be amended and whether the respondents were entitled to interest.

On 31 May 2013, the applicant filed a further summons against the respondents pursuant to r 46.04(1) of the Supreme Court (General Civil Procedure) Rules 2005 ('2005 Rules') which, in effect, sought to replace Pagone J's interim costs order with orders that the respondents pay part of her costs of the defamation proceeding ('costs summons'). She also filed an affidavit in support of that summons. The costs summons and the s 29 summons (collectively 'Summonses') and the issues of costs and interest that were referred by the Court of Appeal were heard by McDonald J ('CPA proceeding'). The applicant represented herself in the CPA proceeding.

On 5 February 2016, McDonald J determined: that Pagone J's costs order should be amended 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; that the applicant should pay the respondents interest; and that no relief should be granted to the applicant pursuant to the Summonses. On 11 March 2016, McDonald J determined that the applicant should pay the respondents' costs of the CPA proceeding on an indemnity basis. McDonald J's order dated 11 March 2016 gave effect to these determinations.[3]

5 The Court of Appeal dismissed the application for leave to appeal against McDonald J's decision to refuse Ms Giles' application for compensation in the s 29 application. Three applications by Ms Giles to the High Court for special leave were refused on 12 September 2017.

6 Further detail regarding the litigation between the parties at VCAT is to be found in a decision of Emerton J[4] (where leave to appeal against a decision of a VCAT member to award costs of an enforcement proceeding against Ms Giles and others was refused), as follows:

The Tribunal's reasons for its decision to award costs in favour of the Council and the quarry parties are lengthy. They focus largely on the conduct of Mrs Giles in her prosecution of the enforcement proceeding and a number of other proceedings brought in opposition to the re-opening of the quarry. The Tribunal described the enforcement proceeding as the 'culmination' of a series of proceedings brought in the Tribunal by Mrs Giles and/or Country Endeavours arising from Casacir's project to open the dormant quarry immediately to the north of the Giles land. Despite strong opposition from Mrs Giles and others, the Council granted a permit for the quarry. The Council's decision was the subject of a (14 day) review by the Tribunal following which the Tribunal confirmed the Council's decision and ordered that a permit issue. Mrs Giles and Country Endeavours then brought a series of further proceedings in opposition to the quarry.

These 'other proceedings' are described in the affidavit of Virginia Anne Giles sworn on 31 January 2012 as follows:

(a) an application under s 89 of the Planning & Environment Act to cancel or amend a permit;

(b) an application under s 89 of the Planning & Environment Act for a stop work order;

(c) an application under s 305A of the Water Act 1989 (Vic);

(d) an application under s 126 of the VCAT Act for an order to extend time within which to commence a proceeding under s 83(1)(b) of the Water Act to review the decision to grant Casacir a licence to construct works on a waterway; and

(e) a claim for damages under ss 15 and 16 of the Water Act and for an injunction pursuant to s 19(3) of the Water Act and s 123 of the VCAT Act.

In relation to this course of events, the Tribunal observed:

It is quite obvious from subsequent history, and subsequent proceedings, that Mrs Giles was bitterly disappointed with the result of her review before the Tribunal. She has not accepted the decision of the Tribunal to grant the permit and she has since instituted a series of proceedings aimed at reversing or frustrating the result. These subsequent proceedings may have had their ostensible purposes but when the whole series is reviewed in detail it emerges that, underlying any ostensible motives there has been this ulterior motive of reversing and frustrating the decision of the Tribunal in the initial case. This strategy has included attempts to recontest issues determined by the Tribunal. It has also included attempts to prevent, frustrate or at least delay Casacir in seeking to act on the permit granted to it.[5]

7 Accordingly, in summary, the disputes between the parties have been ventilated in the following proceedings:

(a) the VCAT proceedings, culminating in the proceeding dealing with the costs of the enforcement proceeding, where a VCAT member made an order for costs in favour of Casacir on the basis that the bringing of the enforcement proceeding was vexatious;

(b) an appeal to this Court from the costs order made against Country Endeavours, Shapher, and Mr and Mrs Giles in the enforcement proceeding, where Emerton J refused an application for leave to appeal against the decision of a VCAT member to award costs in favour of Casacir;

(c) the defamation proceeding (including an appeal to the Court of Appeal) in which the quarry defendants were successful in obtaining an award of damages (although their application for aggravated damages was unsuccessful); and

(d) the s 29 application (including an appeal to the Court of Appeal). In the s 29 application, orders were sought by Ms Giles seeking compensation from the quarry defendants. Ms Giles' application was entirely unsuccessful, and the quarry defendants obtained an order for their costs of the defamation proceeding and the s 29 application on an indemnity basis.

8 Further, on or about 5 July 2017, Ms Giles made a written complaint to the President of the Victorian Bar regarding, among others, Mr Southall QC. This complaint was referred to the Legal Services Commissioner, who subsequently dismissed the complaint.

9 On 3 August 2018, Ms Giles was made bankrupt by an order of the Federal Circuit Court on the application of the quarry defendants, after Ms Giles failed to pay a judgment debt of $229,623.29 arising from an order of this Court made on 26 April 2017 ('bankruptcy proceeding'). The order in the bankruptcy proceeding was made notwithstanding Ms Giles' assertion that she had a cross claim against the quarry defendants which exceeded the amount of the judgment debt.

10 This proceeding was issued on 19 September 2018, although apparently there had been correspondence between Ms Giles and the court registry for some time regarding the form of her statement of claim. The statement of claim ran to some 35 pages, and made a number of allegations against the defendants under the following headings:

(a) conduct occasioning damage to Giles by way of obstruction of justice;[6]

(b) the damage to Giles resulting from the defendants' obstruction of justice;

(c) damage to Giles by way of obstructing justice through fraud;

(d) damage to Giles by way of obstructing justice through false testimony;

(e) damage to Giles by way of obstructing justice through the suborning of false testimony;

(f) damage to Giles by way of obstructing justice through the abuse of the Court's processes;

(g) damage to Giles by way of obstructing justice through attempting to pervert the course of justice;

(h) damage to Giles by way of obstructing justice through aggravating the damages; and

(i) obstruction of justice occasioning exemplary damages.

11 Given that the original statement of claim was superseded by an amended version following the initial hearing of the defendants' summary judgment application, it is not necessary for present purposes to go into the allegations in the statement of claim in any detail. However, the following extract from the statement of claim provides a flavour of the allegations made against the defendants, which largely flowed through to the amended statement of claim:

Giles suffered severe emotional and financial damage when Jeffrey and Curnow each, on their own behalf and on behalf of CASACIR, criminally attempted to pervert the course of justice.

PARTICULARS

(a) In addition to their other forms of obstruction of justice, Jeffrey and Curnow each damaged Giles by their attempts to pervert the course of justice prior to legal action, inter alia:

(1) by having assured VCAT as absolute fact that there would be no detrimental impacts from their quarry if given a permit, and then once they had their permit and commenced the quarry, they allowed significant detrimental impacts;

(2) by signing, and/or authorising the signing of, the Terms they had absolutely no intention of complying with over the long-term;

(3) by assuring the regulatory authorities that certain things would definitely happen when they knew they would not happen;

(4) by assuring the regulatory authorities that certain things would definitely not happen when they knew they would happen;

(5) by deliberately concealing 2 documents and refusing to discover them;

(6) by giving instructions and/or authorisation to, and/or allowing, specialists and other representatives, including legal representatives (including, but certainly not limited to, Smith and Southall) to deliberately mislead and deceive others.

Giles suffered severe emotional and financial damage when Smith criminally attempted to pervert the course of justice.

PARTICULARS

1. In addition to his other forms of obstruction of justice, Smith damaged Giles by his attempted (sic) to pervert the course of justice prior to legal action, inter alia:

(1) by writing a letter in an attempt to bully and intimidate Giles into removing her entire website from the internet, and which letter contained allegations that were known by Smith to be fraudulent when writing and posting them;

(2) by advising Jeffrey, Curnow and CASACIR on how to take the actions for injurious falsehood and misleading and deceptive conduct that they had no intention of taking to prosecution, in order to further bully and intimidate Giles into the removal of her former website;

(3) by advising Jeffrey and Curnow on how to take action for defamation which claims he knew to be fraudulent;

(4) by refusing to assist the truth of the financial situation perpetrated upon Giles by Jeffrey, Curnow and CASACIR be revealed to the Federal Circuit Cou5rt.

Giles suffered severe emotional and financial damage when Southall criminally attempted to pervert the course of justice.

PARTICULARS

1. In addition to his other forms of obstruction of justice, Southall damaged Giles by his attempted to pervert the course of justice prior to taking legal action, inter alia:

(1) by advising Jeffrey, Curnow and CASACIR on how to take the actions for injurious falsehood and misleading and deceptive conduct that they had no intention of taking to prosecution, in order to further bully and intimidate Giles into the removal of her former website;

(2) by advising Jeffrey and Curnow on hot to take action for defamation which claims he knew to be fraudulent; and

(3) by deciding to deliberately withhold particularisations of claims in breach of the law.

Giles was significantly emotionally and financially damaged by each of Jeffrey and Curnow through their criminal perverting the course of justice.

PARTICULARS

1. In addition to this other forms of obstruction of justice, Jeffrey and Curnow each perverted the course of justice which impacted and damaged Giles financially and emotionally, inter alia:

(1) by approving and authorising and/or swearing on oath, to tell the truth, the whole truth and nothing but the truth, then giving false sworn verbal testimony at VCAT, and by swearing an oath to the truth of the contents of two affidavits filed and used at VCAT, when those affidavits and sworn testimony knowingly contained much in the way of knowingly false evidence;

(2) by providing to VCAT and the courts, various private letters including those marked 'in confidence' and/or 'without prejudice' without prior discussion or request for, or grant of, permission in breach of privacy, and by the fraudulent use of those letters;

(3) by authorising and approving of Smith ignoring various orders and directions of VCAT and the courts;

(4) by forcefully turning the spotlight onto their fraudulent claims about Giles being vexatious in trying to protect her legislated rights, so that they could try to avoid the consequences of their damaging actions and failures to comply with permit and work plan conditions, with legislation, and with their own undertakings;

(5) by the authorisation and approval of Smith and Southall's fraudulent misrepresentations as fact of Jeffrey and Curnow's excellent reputations, ethics and the like;

(6) by way of authorising and approving the defaming, and attempts at shaming and belittling of Giles in submissions and addresses made by Southall;

(7) by way of authorising and approving of Southall's misuse and misquoting of the VCAT documentation;

(8) by each signing an overarching obligations certification on their own behalf and on behalf of CASACIR in order to convince the court that it could believe as truth contents of the documents Jeffrey and Curnow had personally approved and authorised to be filed and/or served, and that the court could and would believe as fact;

(9) by the submissions and addresses they each approved and authorised and/or which were given in their names;

(10) by taking action for defamation in the full knowledge that the action was fraudulent;

(11) by abusing the court's processes by adding further fraudulent claims and denials (claims of injurious falsehood and misleading and deceptive conduct) with no intention of taking the claims to prosecution, but with the sole intention of further bullying, harassing and intimidating Giles into the removal of her entire former website from the internet as a matter of urgency, and once accomplished, removing those claims immediately (but still unconscionably using them in a concealed manner);

(12) by authorising the claim that the fraudulent withdrawn (but still retained and used claims and denials of injurious falsehood and misleading and deceptive conduct were true and accurate;

(13) by running up significant unnecessary costs for Giles when (and after) she had a legal team;

(14) by way of authorising and approving the defaming, and attempts at shaming and belittling of Giles in documents, correspondence, submissions and addresses;

(15) by way of authorising and approving the intimidation and harassment of Giles in documents, correspondence, submissions and addresses;

(16) by authorising and approving the deliberate delays in taking action and deliberate and unlawful delays in particularisation of the words complained of so as to try to add credibility to their claim, and by the misuse of those delays throughout the trial in order to gain additional damages;

(17) by authorising and approving of the fraudulent use of the letter of 19 August 2011 throughout the Supreme Court and Court of Appeal, which letter contained many knowingly and deliberate fraudulent claims and denials;

(18) by authorising and approving the fraudulent gross misuse of Giles' apology in order to gain additional damages;

(19) by concealing documents that were critical to the case, and by authorising and approving of the fraudulent claims made about some of those documents;

(20) by unreasonably rejecting Giles' offer of compromise, and by authorising and approving the active and deliberate deception in relation to Giles' offer of compromise in order to gain additional damages when they knew they had later submitted an identical offer, but with significant additional costs incurred and charged;

(21) by fraudulently claiming that Giles had tried to blackmail, intimidate and/or threaten them by way of her website;

(22) by fraudulently claiming that meetings occurred that did not occur, and by fraudulently claiming conversations that did not take place;

(23) by the misuse of the correspondence that was sent the result of a fraudulent offer in 2005 by Jeffrey himself;

(24) by authorising and approving the fraudulent claims that they did not owe for the financial impact on Giles, the impacts resulting from their abuse of process by their fraudulent claims and denials in the injurious falsehood and misleading and deceptive conduct;

(25) by authorising and approving the fraudulent claim that Giles' former website was false, entirely false, without foundation and baseless without having pleaded it in the Supreme Court and without seeking or obtaining permission from the Court of Appeal to add those claims to the appeal, and in the full knowledge that her former website was in fact true and correct;

(26) by the authorisation and approval of the twisting of facts in relation to the folder of annexures so as to not have to pay for the gross number of entirely and admittedly unnecessary and unwarranted pages;

(27) by their support of the repeated fraudulent allegations that there were only 3 amended statements of claim when they were fully aware of and had authorised 6 amended iterations, with the denials made in order to reduce the likelihood of having to pay for their incompetence;

(28) by the authorisation and approval of repeated claims by Smith and/or Southall that none of the defendants had done anything wrong by actively and deliberately deceiving the court;

(29) authorising and approving Southall fraudulently exaggerating by telling their Honours of the Court of Appeal as fact, that Giles had been taking Jeffrey, Curnow and CASACIR to VCAT since 2008 when he had truthfully told Pagone J as fact, that she had only taken action in August 2009 and 2010;

(30) by taking out bankruptcy procedures against Giles when they each knew that there was no valid reason for having done so, especially knowing that they had already caused her to become insolvent;

(31) by having a further now known ulterior purpose/motive for the previous damaging actions as well as the bankruptcy procedures, namely an intention to make Giles insolvent and to deliberately cause her further damage;

(32) by their instructions to tell the Federal Court that Giles had been taking action for fraud against them for 4 to 5 years when she had not taken any action at all against them for fraud;

(33) by their instructions to tell the Federal Court that they had not been paid the amounts Giles had paid to them and which they knew had been paid to them;

(34) by authorising and approving bills containing and claiming a significant number of improper items;

(35) by commencing taxation of 3 further bills well after taking action for the two others bills at the base of the bankruptcy proceedings, thus making it impossible for them to add the new bills to the bankruptcy; and

(36) by then seeking to have the taxation of those bills adjourned sine die, in order to leave the taxation hanging over Giles for an indefinite time - thereby deliberately causing Giles further damage through additional stress and anxiety.

By their obstruction of justice and their perverting the course of justice, inter alia, as outlined above, Jeffrey and Curnow gained significant damages, interest and costs totalling almost one million dollars gained in total, in having succeeded in intimidating Giles into the removal of her entire former website, in having Giles sell the Shapher land and thereby no longer be in a position to stop their quarry, and had Giles declared officially bankrupt and insolvent, with a trustee appointed to manage her affairs - thus causing Giles significant financially and emotionally [sic] damage.

12 In her prayer for relief, Ms Giles sought damages in the sum of at least $900,000 from each of Messrs Jeffrey and Curnow, at least $800,000 from Casacir, and at least $600,000 from each of the lawyer defendants, along with 'significant aggravated and exemplary damages'. She also sought orders that the defendants make a public apology to her.

13 By agreement between the parties, the defendants have not yet filed their defences. On 20 December 2018, the lawyer defendants filed a summons seeking orders that the proceeding be dismissed or stayed pursuant to r 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') on the grounds that it is scandalous, frivolous or vexatious, and/or an abuse of the process of the Court. Further, the lawyer defendants seek that the proceeding be dismissed pursuant to s 63 of the Civil Procedure Act 2010 (Vic) ('CPA'), on the basis that the proceeding has no real prospect of success.

14 On 16 January 2019, the quarry defendants filed a summons seeking substantially the same relief as the lawyer defendants, as well as the following relief:

(a) further, or alternatively, the proceeding be dismissed on the grounds that it constitutes a collateral abuse of process as the claims made in the statement of claim are foreclosed by the factual findings of the Court in Supreme Court proceeding S CI 2011 066545 (being the defamation proceeding and the s 29 application); and

(b) alternatively, the statement of claim be struck out in whole or in part pursuant to r 23.02 of the Rules, on the grounds that it does not disclose any cause of action.

15 The defendants' applications were listed for hearing on 11 February 2019. While all defendants sought summary dismissal of the proceeding, the lawyer defendants' primary submission was that the statement of claim disclosed no cause of action known to the law. The quarry defendants supported this submission, but also relied upon their contention that the proceeding was an abuse of process, on the basis that the allegations in the statement of claim had been dealt with in the VCAT proceedings, the appeal from VCAT's decision regarding the costs of the enforcement proceeding, the defamation proceeding and the s 29 application, and Ms Giles has exhausted all avenues of appeal in those proceedings.

16 During the course of the hearing on 11 February 2019, after the conclusion of oral submissions, and, following a discussion I had with Ms Giles regarding the necessary facts required to be pleaded to support a cause of action in (by way of example) negligence, the parties agreed that Ms Giles should be given leave to file and serve a further statement of claim to attempt to address the deficiencies identified by the defendants in their submissions. Subsequently, on or about 13 March 2019, Ms Giles filed an amended statement of claim, along with a document titled 'Succinct summary identifying the legal causes of action relied upon against each defendant'. Subsequently, following the filing of further submissions by each of the parties, the parties agreed that no further hearing was required, and the parties were content for the defendants' applications (which continued to be pressed) to be determined on the basis of the parties' written submissions and the oral submissions made at the hearing on 11 February 2019.

17 The amended statement of claim is a lengthy document, running to one hundred pages, along with a ten page annexure detailing the damage Ms Giles alleges she has suffered by reason of the conduct of the defendants. While the structure and the language of the amended statement of claim differs somewhat from the original statement of claim, Ms Giles relies upon largely the same factual allegations made against the defendants as in the original statement of claim, along the lines of those extracted in paragraph 11 above. The amended statement of claim is summarised below, using the headings utilised by Ms Giles.

18 In this section, Ms Giles sets out, largely, but not wholly uncontroversially, the background to the current proceeding.

B. Intentionally and/or recklessly causing emotional distress

19 Paragraph 20 of the Amended Statement of Claim[7] provides as follows:

The defendants conducted themselves in such a manner as to cause Giles to suffer severe emotional distress as a result.

Particulars

1. the defendants acted intentionally and/or recklessly by abuse of process and/or attempting to pervert the course of justice, acting negligently and taking out malicious prosecution and/or perverting the course of justice against Giles;

b) the defendants' conduct in doing so was extreme and outrageous;

c) Giles was vulnerable and the defendant knew it;

d) there was a pattern of conduct, not just an isolated incident;

e) the defendants owed Giles a duty of care and breached that duty;

1. the defendants were in positions of power and used it to their extreme advantage; and
2. the defendants' acts were the cause of Giles' distress.

C. Abuse of process and/or attempting to pervert the course of justice

20 The allegations under this heading can be summarised as follows:

(a) the defendants, in bringing and prosecuting claims for injurious falsehood and misleading and deceptive conduct, brought false and baseless claims for an ulterior purpose;

(b) the claims were brought for the purpose of bullying and intimidating Giles into removing the website and to assist the quarry defendants to gain access to Giles' assets and force her off the property;

(c) Messrs Jeffrey and Curnow had lied under oath at VCAT, and Casacir had no intention of complying with, among other things, the conditions of the planning permit, the relevant legislation, and the performance standards of its work permit;

(d) the quarry defendants misused a letter dated 19 August 2011 to demand an apology and demand that Ms Giles remove the website; and

(e) the quarry defendants abused the Court's processes by their conduct at community meetings, their threats to her regarding water issues, by blocking public roads, by taking photographs of her, and threatening her on the radio.

21 Ms Giles alleged that the quarry defendants and Mr Smith caused her 'significant emotional and financial damage by willingly, knowingly and deliberately committing fraud by having signed ... a binding terms of settlement agreement ... with which [the lay defendants] had absolutely no intention of complying [sic] in the longer term'.

22 This allegation concerns a settlement agreement entered into between Casacir on the one hand, and Shapher and Country Endeavours on the other hand on 30 August 2010 concerning a proceeding brought in VCAT by Country Endeavours and Shapher alleging that Casacir had undertaken unauthorised works which were said to have interfered with the flow of water to the property ('settlement agreement').

23 Paragraph 39 of the Statement of Claim provides as follows:

In breach of care and breach of duty, and in the full knowledge of the foreseeable risk to Giles, each of the defendants exhibited their negligence against Giles. The defendants' conduct falls well below the standard of behaviour generally expected in society and also established in law. The defendants each owed a duty of care to the judiciary and to Giles, inter alia, to ensure that justice was accomplished.

24 Ms Giles alleged that the quarry defendants owed the judiciary a duty of care under the CPA and the Crimes Act 1958 (Vic) ('Crimes Act'), and the lawyer defendants owed the judiciary a duty of care under the CPA, the Crimes Act, and the legislation and regulations governing the conduct of legal practitioners ('professional conduct legislation').

25 Ms Giles contended that the quarry defendants owed her a duty of care by reason of their obligations under the CPA, Casacir's work authority and planning permit, various planning and environmental legislation, assertions made by them to regulatory authorities, and their pleading in the defamation proceeding to the effect that 'they did not have an arrogant disregard for the people who lived in the area of the quarry'.

26 Under this heading, Ms Giles also alleged that the defendants 'conducted a tortious conspiracy to give and/or suborn false evidence', referring to the evidence given by Mr Jeffrey in the VCAT proceedings, at the trial of the defamation proceeding and in the bankruptcy proceeding, and the evidence given by Mr Curnow at the trial of the defamation proceeding and in the bankruptcy proceeding. Further, she alleged that the defendants deliberately delayed filing and serving their writ and statement of claim, and delayed providing proper particulars in the defamation proceeding, and delayed in notifying her of what they claimed to be the defamatory words on the website.

27 Paragraph 45 of the amended statement of claim provides as follows:

At all relevant times, the defendants caused Giles significant personal injury and damage by their negligence when they commenced action against Giles for defamation.

Particulars

1. The defendants unreasonably initiated the proceedings when, but for Giles previous legal representatives refusing to allow her any defences, there were no prospects of success. If Giles had been allowed to defend on truth and justification, the defendants would not have proceeded with their claims.
2. the defendants' claims in relation injurious falsehood and misleading and deceptive conduct were identical to those of their defamation claims, and therefore the truth or otherwise of their "explanations" in paragraphs 20 and 29 equally relate to their claims of defamation - proving that the defendants knew full well that, in addition to those of injurious falsehood and misleading and deceptive conduct, their defamation claims were also fraudulent, and the defendants negligent for having commenced and run the claims.

28 Ms Giles also repeated her allegations that the quarry defendants unreasonably brought claims for injurious falsehood and misleading and deceptive conduct in the defamation proceeding, when those claims were baseless and were made for an ulterior purpose. She also repeated her allegations that the quarry defendants had lied under oath in the VCAT proceedings, had lied at community meetings, and had breached the conditions of the planning permit and other obligations imposed upon them with respect to the operation of the quarry.

29 Ms Giles alleged that the quarry defendants acted negligently in refusing to accept an offer of compromise made by her in the defamation proceeding, and the lawyer defendants deliberately deceived Pagone J by not disclosing the existence of this offer.

30 Other allegations made by Ms Giles under the heading 'Negligence' include:

(a) the defendants misused and misquoted information and documents;

(b) the defendants misconstrued facts regarding her offers to sell the property to the quarry defendants;

(c) the defendants, by way of fraudulent misrepresentations and negligent misstatements, convinced judges of this Court that Ms Giles was in error;

(d) the defendants claimed that Ms Giles was vexatious, when all she was seeking to do was to have the quarry defendants comply with their planning permit and work authority, relevant legislation, and their own undertakings with respect to the operations of the quarry;

(e) the defendants have 'defamed, shamed and belittled' Ms Giles in documents, correspondence, submissions and addresses;

(f) the defendants fraudulently and grossly misused Ms Giles' apology at the trial of the defamation proceeding to obtain additional damages;

(g) the defendants made the fraudulent claim that Ms Giles' former website was false;

(h) the defendants falsified the length of time they had been involved in the VCAT proceedings;

(i) the quarry defendants initiated the bankruptcy proceeding in the full knowledge that there was no valid reason for doing so;

(j) the defendants repeatedly undermined the provisions of the CPA;

(k) Mr Smith swore a false affidavit on 12 June 2015 (in the context of the s 29 application);

(l) Mr Southall QC 'made submissions outside points of law, and determined to win at any cost' in the hearing of the appeal from the VCAT decision concerning the costs of the enforcement proceeding;

(m) the defendants continued to introduce irrelevant matters at the trial of the defamation proceeding, and actively misled Pagone J;

(n) the defendants fraudulently claimed that Mr Southall QC conducted himself properly during the trial of the defamation proceeding;

(o) the defendants misled and deceived the Court of Appeal; and

(p) the defendants conducted themselves in a negligent manner in relation to costs.

F. Malicious prosecution and/or Perverting the Course of Justice

31 Ms Giles alleged that the defendants were liable for malicious prosecution and/or perverting the course of justice in bringing the quarry defendants' claims in the defamation proceeding, knowing that the claims were untrue. In particular, they falsely claimed that Ms Giles had defamed Messrs Jeffrey and Curnow in revealing that they had lied under oath at VCAT, had lied to and deceived the community at community meetings, and had interpreted VCAT orders and directions the way they wished.

32 Further, Ms Giles claimed that the defendants were liable for malicious prosecution and/or perverting the course of justice in commencing action against her for injurious falsehood and misleading and deceptive conduct when those claims had no prospects of success, and had been brought for 'ulterior, anterior and entirely dishonest and deceptive motives', and claimed aggravated damages against Ms Giles in the defamation proceeding when there was no case to answer.

33 The remainder of the amended statement of claim concerns Ms Giles' claims that, by reason of the conduct of the defendant, she is entitled to aggravated and/or exemplary damages. Strictly speaking, it is not necessary for me to consider these allegations, as the defendants' applications concern whether Ms Giles has any viable cause of action against the defendants, or any of them. However, I have summarised these allegations below for completeness. The allegations under these headings illustrate the intensity of the grievances held by Ms Giles with respect to the conduct of the defendants.

1. Damage to Giles by way of obstructing justice through aggravating the damage

34 Paragraph 77 of the amended statement of claim provides as follows:

The defendants have profoundly aggravated, and continue to prolifically aggravate, the emotional and financial damage and personal injury done to Giles.

Particulars

a) none of the defendants have apologised for their conduct;

1. the defendants have actively, repeatedly and fraudulently denied that Giles has been impacted or prejudiced by their conduct;

1. the defendants are entirely unrepentant, have shown no remorse, and have continually refused to apologise for any of their conduct;

d) the defendants have lied to Giles and to others lied about Giles; and

e) the defendants have defamed, bullied and intimidated Giles;

1. the defendants have carried on their obstructions of justice abuse of process and/or an attempt to pervert the course of justice, fraud, negligence and malicious prosecution and/or perverting the course of justice through various means and thereby continued their damage to Giles;
2. the defendants refused early mediation to try to resolve this issues prior to Giles commencing action;

h) jointly and severally, the conduct of the defendants caused Giles:

i) humiliation and embarrassment,

ii) pain and anguish,

iii) distress,

iv) loss and damage,

v) injury to credit and reputation,

vi) injury to self-confidence,

vii) wounded pride,

viii) loss of faith in herself and others,

and, in addition, Giles has been brought into continued public ridicule and contempt by the defendants.

35 Further, Ms Giles alleged that the conduct of the defendants (particularised in extensive detail in the amended statement of claim) is proof of:

(i) malefides (sic) and lack of good faith;

(ii) the admitted existence of collateral and/or anterior and/or ulterior purposes and/or motives;

(iii) unjustified and unreasonable conduct; and

(iv) fraud.

36 Paragraphs 79 to 82 of the amended statement of claim provide as follows:

The defendants have consistently shown their malevolence, malice and spite in the manner which they committed the injuries and damage to Giles' proper feelings of dignity and pride. They defamed, discredited, insulted, humiliated and embarrassed Giles.

The various defendants twisted evidence, ignored the truth, repeatedly gave false testimony, authorised and approved of or gave fraudulent misrepresentations and negligent misstatements as absolute and unassailable truth, and persisted in trying to justify and assert the truth of their fraudulent claims during the various hearings.

The defendants had reasons and motives for their gross deceit, namely to do whatever it took to win the cases, to gain as much of Giles' assets as possible, to have Giles' former website removed from the internet in its entirety and to have Giles forced off her land.

The defendants have such a lack of care that they are forcing Giles to go through a further trial, particularly in the face of their repeated denials and unrepentant attitudes in spite of the truth.

37 Further, in relation to Ms Giles' claim for exemplary damages, paragraph 84 of the amended statement of claim provides as follows:

The defendants have caused Giles profound emotional and financial damage through having obstructed justice, inter alia, by the above means, evidencing endemic, systemic and continuing contumelious disregard for Giles' rights and the law. A serious award of exemplary damages must be used as an example to show Jeffrey, Curnow, CASACIR, Smith, Southall, and others, that they cannot conduct themselves in that manner get away with it, let alone be rewarded for it.

PARTICULARS

1. The extraordinary obstruction of justice by, and/or authorised and/or approved by, Jeffrey, Curnow, CASACIR, Smith and Southall, reveals:

(1) an unequivocal disregard for the significant emotional and/or financial damage done to Giles;

(2) an unqualified and continuous contumelious disregard for Giles' rights to fair proceedings;

(3) an unqualified and continuous contumelious disregard for Giles' rights to be treated properly and with resect (sic); and

(4) an unqualified and continuous contumelious disregard for Giles' rights, including human rights; and

(5) an entitlement to Giles for significant exemplary damages:

1. so as to punish each of Jeffrey, Curnow, CASACIR, Smith and Southall, and
2. to deter them and others from that type of continued behaviour.

1. The court should also use the award to show the level of its disapproval at the conduct of Jeffrey, Curnow, CASACIR, Smith and Southall.

38 The annexure to the amended statement of claim details the damage and personal injury said to have been caused by the defendants' negligence and malicious prosecution. The defendants' conduct is said to have caused:

(a) damage to Ms Giles' credit and reputation;

(b) damage to Ms Giles' emotions, including:

1. humiliation and embarrassment;
2. pain and anguish;
3. distress;
4. injury to self-confidence;
5. wounded pride;
6. loss of faith in herself;
7. stress;
8. fear;
9. anxiety;
10. depression;
11. loss of faith and trust in others;
12. shame about the things said about her;
13. panic attacks, and
14. post traumatic stress disorder.

(c) injury to Ms Giles' health and wellbeing, including type 2 diabetes, breast cancer, hair loss, sleep loss, and weight gain; and

(d) damage to Ms Giles' financial position. Ms Giles alleges that the quarry defendants caused her to suffer severe financial loss by:

(v) depriving her of her 'pre-existing legislated rights and benefits';

(vi) causing the loss of productivity of her land; and

(vii) forcing her to sell her land at a loss of $365,000.[8]

39 Further, Ms Giles alleged that the quarry defendants caused Ms Giles to spend in excess of $318,741.79 in the VCAT proceedings, $111,700.34 on legal fees in the defamation proceeding, and the defendants also forced her to pay damages and legal costs arising out of the enforcement proceeding, the defamation proceeding, the s 29 application, and associated appeals. She alleged that the defendants caused her further financial loss, including:

(viii) loss of income and superannuation of $658,944;

(ix) the operations of the quarry caused Country Endeavours to lose $43,950 in its beef raising business and $264,000 in its agroforestry business;

(x) Country Endeavours lost the opportunity to run a bed and breakfast business;

(xi) Ms Giles had to spend her inheritance from her mother upon the defendants' costs, in the sum of $97,000; and

(xii) Ms Giles had to borrow in excess of $500,000 from her husband, which she still owes.

40 Ms Giles alleged that the defendants caused her personal injury and additional damage to her lifestyle, as she and her husband have lost the ability to retire to the property, and she has had to sell another property.

41 Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules') provide as follows:

Where a proceeding generally or any claim in a proceeding -

(a) is scandalous, frivolous or vexatious; or

(b) is an abuse of the process of the Court -

the Court may stay the proceeding generally or in relation to any claim or give judgment in the proceeding generally or in relation to any claim.

42 Rule 23.02 of the Rules provides as follows:

Where an indorsement of claim on a writ or originating motion or a pleading or any part of an indorsement of claim or pleading -

(a) does not disclose a cause of action or defence;

(b) is scandalous, frivolous or vexatious;

(c) may prejudice, embarrass or delay the fair trial of the proceeding; or

(d) is otherwise an abuse of the process of the Court -

the Court may order that the whole or part of the indorsement or pleading be struck out or amended.

43 In addition, the defendants rely upon s 63 of the Civil Procedure Act 2010 ('CPA'), which provides as follows:

Summary judgment if no real prospect of success

(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.

(2) A court may give summary judgment in any civil proceeding under subsection (1) -

(a) on the application of a plaintiff in a civil proceeding;

(b) on the application of a defendant in a civil proceeding;

(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

44 The test under s 63 of the CPA is governed by the statement of the Court of Appeal in the oft-cited decision of Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[9] as follows:

(a) the test for summary judgment under section 63 of the CPA is whether the respondent to the application for summary judgment has a 'real' as opposed to 'fanciful' chance of success;

(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the 'hopeless' or 'bound to fail test' essayed in General Steel;

(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 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.[10]

45 Further, Neave JA (who otherwise concurred with the statements made by the majority above) stated as follows:

... I am concerned that undue emphasis on the caution with which a Court must exercise the power of summary dismissal runs the risk of reinforcing the historical approach to summary dismissal and may result in the legislative liberalisation of the test in s.63 have little impact in practice. That approach would be inconsistent with the objective of reforming the law relating to summary judgment, expressed in s.1(2)(e) of the Civil Procedure Act, and with the requirement that the Court give effect to the over-arching purposing of [the CPA], imposed by s.8.[11]

46 Section 64 of the CPA provides as follows:

Court may allow a matter to proceed to trial

Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because -

(a) it is not in the interests of justice to do so; or

(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.

47 Therefore, the Court retains a residual discretion not to award summary judgment. The occasions where the Court has allowed a proceeding to continue notwithstanding that the proceeding has no prospects of success would be rare.

48 In contrast with r 23.01 of the Rules and s 63 of the CPA, r 23.02 of the Rules is concerned with the sufficiency of a pleading rather than the viability of a claim.

49 In their written outline of submissions filed on 7 February 2019, the lawyer defendants submitted that the statement of claim was 'manifestly bad' in that no identifiable cause of action is pleaded, it is replete with allegations of criminality and misconduct, and it is confusing. The lawyer defendants also submitted that summary judgment should be granted, as there is no viable claim which could be mounted against the lawyer defendants.

50 The lawyer defendants submitted that, insofar as Ms Giles alleges that the lawyer defendants 'criminally attempted to pervert the course of justice' in connection with the evidence given and submissions made in the defamation proceeding, no claim could be made against the lawyer defendants based upon giving or procuring false evidence because of the immunity which applies to witnesses and others in connection with court proceedings. Further, no claim based upon the tort of abuse of process could be maintained against the lawyer defendants, as they were not parties to any of the relevant proceedings.

51 The lawyer defendants' written outline of submissions also referred to other impediments to Ms Giles bringing her claims in this proceeding, including her bankruptcy, the fact that in some cases Ms Giles would not be the proper plaintiff, the passage of time since some of the events complained of, and the principles of issue estoppel, Anshun[12] estoppel, and abuse of process which would preclude Ms Giles from relitigating matters which had been determined in previous proceedings.

52 At the hearing of the defendants' applications, counsel for the lawyer defendants submitted that there was no utility in allowing any of Ms Giles' claims to proceed. Counsel also emphasised the fundamental principle of the finality of litigation, referring to the 'propensity of the plaintiff to use the legal process to level accusations of the most serious kind'. Counsel referred to the following statement of the Court of Appeal decision with respect to the s 29 application:

Some of the applicant's allegations reflect a misunderstanding of the judicial process, the role of pleadings and other common court documents, the role of counsel and the dynamic nature of a court room. Other allegations fasten on a narrow literal meaning of words used by the respondents and their lawyers and ignore the nuances of language. Yet other allegations treat any future departure from a past stated position as evidence of dishonesty without any allowance for the fact that changes in position sometimes arise in response to altered circumstances. The applicant's allegations also make no allowance for the fact that, as discussed at [183] below, parties and their lawyers from time to time make mistakes which do not bespeak dishonesty or a breach of an overarching obligation.[13]

53 Counsel for the lawyer defendants submitted that, while the question of the finality of litigation is important in the context of these applications, the Court should not be required to trawl through everything that has taken place before in order to cross‑reference what is raised in this proceeding and assess whether the matter has been dealt with in the previous proceedings. Accordingly, the lawyer defendants' primary submission was that Ms Giles has no viable cause of action against them. That said, counsel for the lawyer defendants submitted that Ms Giles' allegations also amount to a collateral attack upon the findings in the defamation proceeding and the s 29 application.

54 In their written outline of submissions filed on 8 February 2019, the quarry defendants joined with the lawyer defendants' criticisms of the statement of claim, noting that:

A fundamental problem with the statement of claim is that it focuses exclusively on questions of causation and loss without properly identifying a course of action giving Ms Giles a right to damages.

55 Counsel for the quarry defendants observed that numerous of the allegations in the statement of claim concerned alleged crimes, rather than civil causes of action. Further, the statement of claim focuses largely on questions of causation and loss, and does not disclose any cause of action. Further, the quarry defendants submitted that the findings of McDonald J in the s 29 application conclusively answer Ms Giles' claims that in bringing the defamation proceeding, the quarry defendants were motivated by malice, that the defamation proceeding was an abuse of process. Those claims constitute a collateral attack on the findings in the s 29 application, and are themselves an abuse of process, as McDonald J rejected Ms Giles' submissions that the commencement of the defamation proceeding was an abuse of process. Counsel for the quarry defendants also relied upon the principle of witness immunity in support of his submissions that the quarry defendants are immune from suit with respect to the allegations that they lied in their evidence to this Court.

56 In the written outline of submissions provided to the Court on 11 February 2019, Ms Giles relied upon her 'show cause' affidavit sworn on 5 February 2019. In this affidavit, Ms Giles alleged that the solicitors for the quarry defendants and the lawyer defendants in this proceeding made fraudulent and 'falsely sworn' allegations in support of their summary judgment applications, and alleged the defendants have tried to mislead and deceive the Court in the course of the current applications.

57 Ms Giles also relied upon an email sent by the court registry which assured her that the statement of claim complied with the Rules. She submitted that she found the quarry defendants' assertion that fraud must be pleaded with particularity to be hypocritical given their failure to provide proper particulars in the defamation proceeding.

58 Ms Giles submitted that her claims in this proceeding do not seek to overturn or revisit any of the previous proceedings: rather, this proceeding is concerned with the loss and damage that the defendants' conduct has caused her, noting that a bankrupt is entitled to bring claims for personal injury. She rejected the assertion that the proceeding is 'scandalous, frivolous or vexatious', relying upon the ordinary dictionary meaning of those words.

59 Ms Giles rejected the suggestion that her allegations against the defendants had been determined by McDonald J in the s 29 application and the subsequent appeal, stating as follows:

Although referring to this case in his orders dated 11 March 2016 as having been a "trial", McDonald J (inter alia):

(1) did not only allowed half a day for submissions,

(2) did not treat that case with seriousness by failing to question the accused,

(3) did not question me in any depth on any of my allegations, and

(4) did not say Mr Jeffrey and Mr Curnow did not lie under oath,

(5) claimed that Pagone J did not find anything wrong with what the defendants did.

that case clearly has no relevance other than by the way the defendants each conducted themselves by jointly and severally deliberately and determinedly causing me significant damage and personal injury.

The defendants admitted that my application before their Honours of the Court of Appeal in 2016 was my appeal against McDonald J's orders. In addition:

1. The defendants won that case, partly due to Mr Southall's insistence that their Honours not look closely at the fact that he and Mr Smith had misled the court, or the fact that Mr Jeffrey and Mr Curnow had each lied under oath;
2. that case clearly had no relevance other than by the way the defendants each conducted themselves by jointly and severally deliberately and determinedly causing me significant damage and personal injury.

60 Ms Giles submitted that the defendants, in their affidavits and submissions, have proved that their conduct has driven her into bankruptcy. She submitted that only a full hearing on the merits (before a judge and jury) is appropriate.

1. The defendants have serially and provably damaged, injured and wronged me. For the court to refuse my application would be against natural justice and would further damage and injure me. Further, by seeking a summary dismissal, the defendants have proved that they are entirely unconcerned that they have caused me significant and on-going damage, personal injury and other wrongs.
2. There has never been any time or place where the issues of my damage or personal injuries have been brought before the court, heard or determined, let alone the extent of the damage or personal injury, and/or compensation granted or refused.
3. The defendants' application for a summary judgment is a scandalous, frivolous, vexatious, and mean-spirited application. Their application is also an abuse of the court's processes because they know the truth to be entirely different to that claimed.
4. In spite of being fully aware of the truth, on many occasions each of the defendants continued to blame me for matters for which they were themselves responsible; and they did so in order to try to make me look bad and a liar before the court, when it was them who were lying.
5. Mr Jeffrey and Mr Curnow each testified under sworn oath that they believed it was fine and acceptable to them to take action on their own behalf and on behalf of CASACIR, including by using the services of Mr Smith and Mr Southall, in order to protect their rights. In direct contrast however, they all consistently claim that I am vexatious for trying to protect my legislated rights that pre-existed the arrival of Mr Jeffrey, Mr Curnow and CASACIR.
6. The defendants' conduct not only damaged me and caused me significant injury, much of it broke the law and each of the defendants could be subject to heavy fines and/or up to 15 years jail for some of the offences if the court sees fit.
7. Once the defendants had created and addressed the false issues contained in their documents to this attempt at summary dismissal, it ran the risk of, as it was designed to, rob me of a fair trial on the merits of my case (sic). To allow the defendant's application to stand would affect (sic) a substantial wrong and a gross miscarriage of justice.
8. Their argument for summary dismissal is demonstrably absurd, non-factual, and a blatant attempt to further divert the course of justice by blatant deceit. The non-factual nature and falsity is an example of the defendants' willingness to present lies as fact.
9. My action is an attempt to stand up for myself and take back my voice after being bullied and intimidated, damaged and suffering great personal injury.
10. The defendants are not merely grossly mis-stating things, they are purposefully injecting fraudulent information into the situation in order to change and distort the perspective the court has of the true facts.
11. Being duped by the defendants has contaminated my entire sense of self. It has thrown me off-kilter and made me question everything and everyone.
12. The defendants have worked hard to invent their own reality, and if the court to accepts their false claims without sanction, it ultimately endorses the fact that they have and do make false allegations without proof, and they will, yet again, have greatly succeeded.
13. They have tried to convince the court that I'm delusional when all along they set me up.
14. Rather than my claim having no chance of success, I claim that it is this claim against me that is manifestly hopeless, and I submit that to not to set aside the defendants' applications for a summary dismissal would be to reward behaviour that is contrary to the public interest, and natural justice.

62 In the course of the hearing of the defendants' applications, Ms Giles submitted that she could prove that the quarry defendants' conduct in entering into the settlement agreement was fraudulent, handing up a copy of the settlement agreement, and photographs said to show the interference of the quarry operations with the supply of water to the property. She repeated her submissions that she was not seeking to relitigate anything: rather, she was seeking to focus upon the defendants' conduct and its impact upon her.

63 As noted above, following the service of Ms Giles' amended statement of claim, both the quarry defendants and the lawyer defendants continued to press the applications in their respective summonses. In their supplementary written submissions filed on 25 March 2019, the quarry defendants:

(a) relied upon their previous written and oral submissions, and adopted the submissions of the lawyer defendants;

(b) submitted that there were no known causes of action of 'intentionally and/or recklessly causing emotional distress' or attempting to pervert the course of justice known to the law;

(c) referred to the following statement of the High Court in Williams v Spautz:[14]

Central to the tort of abuse of process is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers.[15]

and submitted that the allegation that the defamation proceeding was motivated by malice or other improper purpose was comprehensively rebutted by McDonald J (and the Court of Appeal) in the s 29 application; and

(d) there are no facts pleaded which would give rise to an arguable duty of care.

64 In their supplementary written outline of submissions, the lawyer defendants submitted as follows:

[the amended statement of claim] suffers from the same pleading defects as the original statement of claim, and these defects are only magnified and made worse by the added length and prolixity of the [amended statement of claim]. The [amended statement of claim] contains a forest of assertions and allegations as to serious misconduct, and it does not plead the elements of any cause of action or the details that would be required to properly inform the defendants as to the case to be met. It is a manifestly bad pleading which cannot be allowed to stand. No fair trial could ever proceed on the basis of it.

65 The submissions of the lawyer defendants then went on to analyse the viability of any potential causes of action discernible from the matters referred to in the amended statement of claim, and concluded as follows:

Ms Giles has no real prospect of success on any claim against [the lawyer defendants] or the other defendants: no viable cause of action has been articulated by Ms Giles in [the amended statement of claim] (or the Summary Document or the Further Summary Document) and no viable cause of action can be divined from the various matters about which she complains.

Instead of pleading a cause of action which Ms Giles could maintain against the defendants, [the amended statement of claim] presents as a catalogue of Ms Giles' various ongoing grievances about the manner in which previous litigation between Ms Giles (and her associated parties) and the first to third defendants was conducted. In substance, Ms Giles invites the Court to revisit the outcomes which were decided adversely to her in the previous litigation, in an endeavour by Ms Giles to seek redress and exact retribution for the wrongs that she perceives were thereby done to her. Ms Giles does this having either exhausted or chosen not to pursue her available appeal avenues in relation to those matters in the previous litigation, having been declared bankrupt and remaining so, and having been admonished for her conduct in the previous litigation by successive judicial officers.

Ms Giles should not be permitted to persist with this proceeding, and the defendants and the Court should not be vexed with it, coming as it does on the back of unfortunate and protracted litigation in which Ms Giles was unsuccessful and she refuses to accept the result. Ms Giles has had ample opportunity to articulate the legal claims she would seek to advance, but she has failed to plead or even identify a viable cause of action which could be maintained against any of the defendants.

In the circumstances, it would be unfair and oppressive to the defendants, burdensome to the Court, and inimical to the overarching obligations under the CPA and the due administration of justice to allow Ms Giles to persist with this proceeding any longer. The Court should now give summary judgment for [the lawyer defendants] and the other defendants pursuant to s 63 of the CPA.

66 In response, Ms Giles filed and served further written submission on 15 April 2019 (running to some forty pages), along with a document headed 'Succinct summary identifying the legal causes of action relied upon against each defendant'. In this document, Ms Giles summarises which defendants are said to be liable in respect of the causes of action pleaded by her. While there is some variation between the conduct of each of the defendants said to have caused Ms Giles loss and damage, it is reasonably clear that each of the defendants is said to have been liable for the conduct of the other defendants, by advising, authorising, or instructing the other defendants to engage in the conduct sought to be impugned by Ms Giles.

67 In her submissions, Ms Giles commented upon the various potential causes of action returned to in the amended statement of claim.

68 Ms Giles submitted that 'intentionally and/or recklessly causing emotional distress' is a valid cause of action, and is indeed her overarching cause of action. Her claims in that regard have not been the subject of any findings in any court proceedings. In any event, if it is not a recognised cause of action, it is open to the Court to entertain the claim 'given that every cause of action had to commence with a new proceeding at some stage'.

69 Much the same submissions were made with respect to Ms Giles' allegations that the defendants had attempted to pervert the course of justice. In relation to her claims that the defendants had engaged in an abuse of process, Ms Giles submitted that the defendants had brought their claims for injurious falsehood and misleading and deceptive conduct for collateral purposes, being to force Ms Giles to take down her website, and to make her bankrupt and force her from the property.

70 Ms Giles submitted that fraud is a valid cause of action, and that she has provided clear and detailed particulars of the fraud, being the entry of the quarry defendants (with the assistance of Mr Smith) into the settlement agreement. She submitted that the photographs of the property and the effect of the quarry operations upon the water supply to the property handed up at the hearing on 11 February 2019 constitute sufficient evidence of the quarry defendants' fraudulent conduct.

71 Ms Giles submitted that the defendants' contention that she could not bring an action based upon the settlement agreement as she was not a party to the settlement agreement should be rejected: the quarry defendants and Mr Smith fought hard to join her as a party to the enforcement proceeding, and she was the person who actually signed the settlement agreement. Further, this claim does not involve re-litigating what occurred at the enforcement proceeding, because the terms of settlement brought that proceeding to an end.

72 In relation to the cause of action in negligence, Ms Giles submitted that there have been no findings in relation to negligence, as there has been no proceeding in which these claims have been pursued against the defendants. Insofar as the defendants' conduct involved committing or suborning perjury, Ms Giles submitted that she is not suing them for their actual conduct, but for the consequences of their illegal conduct. In relation to the question of whether the defendants owed Ms Giles a duty of care, she submitted that they:

...certainly had and have various duties with the paramount duty to the court, with the outworkings of that duty being a duty to Giles - it is impossible to have a duty to the court to be honest and ensure that justice is done, without that being a subsequent duty to Giles to ensure that she receives justice.

73 Ms Giles also relied upon the obligations imposed upon the defendants by the CPA, the obligations imposed upon the lawyer defendants by professional conduct legislation, and the duty of care imposed upon the quarry defendants by their own assurances and undertakings, their work plan, and planning permit, and other legislation, including the planning scheme.

74 In relation to the claim of malicious prosecution and/or perverting the course of justice, Ms Giles submitted that the defamation proceeding was brought in the full knowledge that the action (including the claims for injurious falsehood and misleading and deceptive conduct) had no basis in fact, and was brought with the intention of causing harm to her and her related parties. She submitted as follows:

The fourth and fifth defendants claim that the injurious falsehood and misleading and deceptive conduct claims were discontinued by consent - yet, in disregard for the Rules, they did not overtly remove them as demanded by the orders of Beach J (as he was then) until 21 March 2013, as admitted by Southall, and did not remove them at all in reality but covertly retained them without pleading them, causing Giles' additional distress, anxiety and depression. The fact that they were not overtly tried does not detract from the fact that they should not have commenced, and they should not have commenced because they had no basis but were used for ulterior motives. The claims for aggravated damages, while not succeeding, were claimed by the plaintiffs to still have been valid and that they should have and would have succeeded, and still caused Giles losses, damage, and personal injury. Mislead by the defendants, McDonald J was in error when he claimed that Pagone J had not said that there was no factual basis for the aggravated damages. These matters are raised by the defendants to obfuscate the issues and try to confuse Giles and the court, as is their habit.

75 While this issue is not of particular relevance to the defendants' summary judgment application, Ms Giles' submissions also canvassed at some length why she should be entitled to aggravated and/or exemplary damages.

76 In relation to the question of whether Ms Giles' claims against the lawyer defendants are precluded by the principle of advocates' immunity, Ms Giles submitted, in summary, as follows:

(a) advocates' immunity only provides a defence where the lawyers are defending actions brought by their own clients;

(b) the quarry defendants have given evidence that they have taken the advice of the lawyer defendants;

(c) lawyers have a legally binding duty to be honest, truthful and sincere; and

(d) it would be unfair if the lawyer defendants could be shielded from responsibility for their conduct by reason of the principle of advocates' immunity.

77 Ms Giles referred to the decision of the Court of Appeal in Yara Australia Pty Ltd & ors v Oswal[16] and Baulch v Lyndoch Warrnambool,[17] and various publications concerning the principles of advocates' immunity, the obligations of legal practitioners under the CPA, and the interaction between the principles of advocates' immunity and s 29 of the CPA. She observed that:

Australia has a history to [sic] taking its stand in law from the United Kingdom, and the UK has abolished the advocates' immunity.

78 Ms Giles' submissions commented upon the other issues raised by the defendants in their submissions, as follows:

(a) the annexure to the amended statement of claim is not intended to disclose a cause of action: rather, it provides full particulars of damage and personal injury;

(b) the proceeding is not seeking to relitigate the issues in any previous proceeding: rather, it is the conduct of the defendants in those proceedings which has caused her damage and personal injury;

(c) there is no valid reason why the proceeding has no real prospect of success: there are seven causes of action, some of which have been suggested by the defendants;

(d) adequate particulars have been provided: what the defendants actually seek is the evidence she will rely upon at trial;

(e) Ms Giles submitted as follows:

The reality is that the defendants do not want to have to face what they have done and are trying anything they can to get out of having to do so. The defendants are trying to put up any barriers they can to having the court hear and make a determination in the interests of justice and fairness, against them for what they have done. Their claims prove beyond any doubt that the defendants have absolutely no care or concerns about what they have done to Giles, particularly given that they had each deliberately personally and collaboratively abused the court's processes, particularly (but certainly not limited to) during the first year of their case in order to bully and intimate her for ulterior purposes, causing her to suffer greatly.

(f) the making of the summary judgment application has aggravated the distress and harm caused to Ms Giles;

(g) none of the previous proceedings concerned applications by Ms Giles for damages and/or personal injury;

(h) the fact that Ms Giles has been made bankrupt alone is proof that the defendants' conduct has caused her damage and personal injury;

(i) the defendants are hypocritical in making criticisms of the amended statement of claim;

(j) the Court's power to grant summary judgment must be exercised with extreme caution. Ms Giles also relied upon s 64 of the CPA which, as noted above, confers upon this Court a discretion to allow a case to proceed notwithstanding it has no real prospects of success; and

(k) finally, Ms Giles submitted as follows:

The truth and facts are that the defendants have each severely damaged Giles and personally injured her over a number of years, and they did so both jointly severally, in a determined and deliberate manner, and the results of that conduct has never been heard before. The court should summarily dismiss their applications allows Giles' application to continue, as is the Court's prerogative and as is in the Court's jurisdiction. [emphasis in original]

79 As can be seen from the parties' submissions, there are a number of different issues to consider when determining whether to grant summary judgment in favour of the defendants or any of them. There are questions as to whether Ms Giles has standing to bring some of her claims. There are questions as to whether, taking Ms Giles' claims at their highest and best, she has any viable causes of action against the defendants or any of them. There are questions as to whether, if any potentially viable causes of action can be discerned from the facts pleaded by Ms Giles, those causes of action have no real prospects of success, because the defendants, or any of them, are immune from suit by reason of the principles of witness immunity and/or advocates' immunity. There are questions as to whether Ms Giles' claims are estopped, or are otherwise an abuse of process, in that they seek to re‑litigate matters already the subject of determination in the VCAT proceedings, the defamation proceeding, and the s 29 application. Finally, while the lack of precision in the amended statement of claim (notwithstanding its length and level of detail) makes it difficult to conclusively determine this issue, to the extent that any of Ms Giles' claims survive the hurdles above, there is a question as to whether those claims are time barred by reason of the provisions of the Limitation of Actions Act 1958 (Vic) ('LAA'). Further, if some or all of Ms Giles' claims do survive, where to from here?

80 The complexity of the task of assessing whether the defendants, or any of them, should have judgment in their favour at this stage of the proceeding has been increased by the length and scope of the amended statement of claim, and the fact that Ms Giles, while clearly capable, intelligent, and articulate, is not legally qualified or represented. Understandably, she has had some difficulty in grappling with some of the defendants' submissions regarding the requirements of pleadings, and the difficulties her claims face by reason of the principle of finality of litigation. Accordingly, I have approached the task before me with a view to identifying any possible claim or cause of action arising out of the factual matters alleged in the statement of claim, even if they have not been directly identified by the parties, and evaluating the prospects of success of those claims on the basis that the facts alleged by her can be proven at trial, even if those claims were not the subject of submissions by her.

81 Further, in the course of the lawyer defendants' submissions, counsel for the lawyer defendants contended that it was not necessary or appropriate for me to trawl through the allegations in the amended statement of claim in order to identify which of the discrete allegations have been determined in the previous proceedings. At a general level, I appreciate that sentiment, and as such, I have not in these reasons embarked upon the exercise of cross‑referencing in detail the allegations made in the amended statement of claim with the specific findings of judges of the Trial Division and the Court of Appeal in the defamation proceeding and the s 29 application. However, to some extent, it has been impossible to avoid considering whether specific allegations regarding the conduct of the defendants have been the subject of prior judicial consideration or determination. In any event, from my reading of Ms Giles' submissions, I do not understand her to dispute the defendants' contention that the matters alleged in the amended statement of claim were canvassed in the previous proceedings: rather, she contends that she has never before brought claims of the nature of those she advances in the current proceeding, namely, claims for personal injury and financial loss.

82 The question of whether Ms Giles is precluded from bringing her claims by reason of the principle of finality of litigation is relevant to a number of the causes of action identifiable in the amended statement of claim. The policy underlying the principle is explained in the following statement by McHugh J in Rogers v The Queen (citations omitted):[18]

The policy of the law is to prevent ultimate issues of fact or law in dispute between parties from being adjudicated in judicial proceedings more than once. A final determination on an ultimate issue of fact or law, once given by a judicial tribunal acting within its jurisdiction, forever binds the parties and all those who claim through them. As a result of this policy, neither the parties nor those claiming through them can dispute the correctness of the determination in subsequent litigation. The remedy for the incorrect determination of an ultimate issue is to set it aside; it cannot be attacked collaterally in other judicial proceedings.[19]

83 Recently, in the decision of Ganesh v Dobrowolski,[20] published while my decision in these applications was reserved, I had cause to consider the question of whether a party seeking to relitigate issues decided in an earlier proceeding should be precluded from doing so on the grounds that the bringing of the later proceeding was an abuse of process, stating as follows (omitting footnotes):

When a proceeding is brought which seeks to relitigate issues determined in an earlier proceeding, where the parties in the two proceedings are identical, the later proceeding may be dismissed or stayed on the grounds that the principles of res judicata (also known as cause of action estoppel), issue estoppel, or Anshun estoppel apply. Alternatively, the later proceeding may be dismissed where none of the above apply, but the proceeding may otherwise be held to be an abuse of process. A party who is not a party to the earlier proceeding may also be barred from bringing claims with respect to the subject matter of the first proceeding where that party is a 'privy' of a party to the first proceeding, or where it is otherwise an abuse of process for the non‑party to seek to litigate the issues in the first proceeding in a subsequent proceeding. There are some differences in the legal underpinnings and operation of the above principles, but underlying each of them is the public interest in the finality of litigation.

A cause of action estoppel arises where the causes of action raised in the earlier proceeding have been the subject of final determination, such that the causes of action merge into the final judgment given in the first proceeding and no longer exist independently. There is limited scope for evaluative judgment in relation to whether the cause of action in a later proceeding has been extinguished by the earlier judgment. The current case is one of those relatively rare instances where there is some scope for debate, given that Ms Ganesh's claims against the defendant were raised by way of defence to the defendant's debt claim, rather than being advanced by way of a counterclaim.

An issue estoppel arises where the earlier proceeding has determined an issue necessary for the determination of the claims in the earlier proceeding. As stated by the Court of Appeal in Commissioner of State Revenue v Mondous:

... the prior determination of an issue of fact or law legally indispensable to the decision is held to have disposed of the issue once and for all, so that it cannot be raised afterwards between the same parties or their privies.

An Anshun estoppel may arise where a claim or issue could have been litigated in a previous proceeding, and should have been, but was not litigated in the earlier proceeding. The question of whether the claim or issue should have been litigated in the prior proceeding involves a consideration of the circumstances relevant to why the issue was not litigated in the prior proceeding, and as such, requires an evaluative judgment. The test is whether it was unreasonable for the party not to have raised the issue in the previous proceeding. Further, as stated by Kenny JA in Gibbs v Kinna:

First, the cause of action must be one that could have been raised in the previous proceeding. Secondly, it must appear that the same or substantially the same facts will arise for consideration in the second as in the first proceeding.[21]

84 Further, in Champerslife Pty Ltd v Manojlovski and anor,[22] Allsop P cautioned against a finding that just because a matter or issue could have been raised in a previous proceeding, it should have been, stating:

Rather, [the matter] has to be so relevant as to make it unreasonable not to raise it.[23]

85 In Angeleska v Victoria,[24] the Court of Appeal conducted an extensive survey of the authorities concerning when an abuse of process could be found to arise when issues litigated in an earlier proceeding were raised in a subsequent proceeding even where no estoppel arises, referring to the following statement of McHugh J in Rogers v The Queen:[25]

Inherent in every court of justice is the power to prevent its procedures being abused. Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court's procedures are invoked for an illegitimate purposes; (2) the use of the court's procedures in unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process.[26]

86 What has commonly been found to be an abuse of process falling within the third category referred to by McHugh J are proceedings which are intended to, or have the effect of, mounting a collateral attack on a determination in a previous proceeding. As stated by Lord Diplock in Hunter v Chief Constable of West Midlands Police,[27] a decision referred to repeatedly in the Australian decisions concerning this issue:

The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made.[28]

87 The question in this case is whether, by bringing her claims that Messrs Jeffrey and Curnow lied in their evidence in the defamation proceeding, and that their initiation and conduct of the defamation proceeding gave rise to an action for malicious prosecution and/or abuse of process, Ms Giles is seeking to impermissibly mount a collateral attack on the findings in the defamation proceeding (and by implication, the determinations in the VCAT proceedings). Further, in the s 29 application, Ms Giles made numerous and wide ranging allegations regarding the manner in which the defendants conducted the defamation proceeding, many of which are repeated in the amended statement of claim.

88 In the s 29 application, the conduct of the defamation proceeding by the defendants was squarely in focus. Ms Giles sought, among other things, an order that the quarry defendants pay some or all of her legal costs associated with the defamation proceeding, including the costs thrown away by reason of discontinuance of the injurious falsehood and misleading and deceptive conduct claims, and an order that the quarry defendants compensate her for any financial loss or other loss which was materially contributed to by the contravention of the quarry defendants' overarching obligations. Without going into any great detail, I note the issues considered and determined by McDonald J in his reasons include the following:

(a) the quarry defendants' collateral purpose in commencing the defamation proceeding;

(b) the false and misleading evidence given at the trial of the defamation proceeding;

(c) the misleading conduct of Mr Southall QC;

(d) the defendants' conduct in causing her to unnecessarily incur costs, including by filing and serving numerous iterations of the statement of claim in the defamation proceeding;

(e) the defendants making a claim that Ms Giles threatened, blackmailed and/or used extortion to force the quarry defendants to buy the property;

(f) the quarry defendants' failure to discover documents; and

(g) Ms Giles' invitation to the Court to make a finding that her defamatory statements were truthful.

89 His Honour comprehensively rejected Ms Giles' claims (as did the Court of Appeal). Further, on 11 March 2016,[29] McDonald J made orders that the quarry defendants were entitled to have their costs of the s 29 applications paid on an indemnity basis, for the following reasons:

(a) Ms Giles sought, in effect, to run a defence of truth that she had elected not to pursue in the defamation proceeding;

(b) many of the matters relied upon by Ms Giles in the s 29 application were raised, or could have been raised at the trial of the defamation proceeding;

(c) Ms Giles used the s 29 application as a vehicle to repeat defamatory allegations against the quarry defendants; and

(d) Ms Giles used the s 29 application to 'make a number of very serious allegations against [the lawyer defendants]'. His Honour said 'These allegations were entirely without merit'.[30]

90 Accordingly, the principle of finality of litigation looms large in these applications.

91 Prior to turning to the issue of whether Ms Giles has viable causes of action against the defendants (or any of them), one aspect of Ms Giles' claim can be dealt with quite promptly. Regardless of the merits or otherwise of any of Ms Giles' actual or potential causes of action, any claim by Ms Giles for pure financial loss (as opposed to claims for personal injury or damage to reputation) has no prospect of success whatsoever, and should be struck out. First, as can be seen from the summary of loss and damage at paragraphs 38 and 39 of these reasons, a number of categories of financial loss (for example, loss of business income and the loss on the sale of the property) are losses which could only have been suffered by Shapher or Country Endeavours, not Ms Giles, and as such, she has no standing to bring these claims. Secondly, to the extent that Ms Giles personally was said to have suffered financial loss (such as payment of damages to Messrs Jeffrey and Curnow, and payment of her own and the defendants' legal costs) those claims fall within the definition of property which vested in her trustee in bankruptcy on 3 August 2018, and Ms Giles has no standing to pursue those claims by reason of ss 58, 60 and 116 of the Bankruptcy Act 1966 (Cth) ('Bankruptcy Act').

92 Accordingly, Ms Giles' claims are limited to those falling within the terms of s 116(2)(g) of the Bankruptcy Act, being:

any right of the bankrupt to recover damages or compensation:

(i) for personal injury or wrong done to the bankrupt, the spouse or de facto partner of the bankrupt or a member of the family of the bankrupt ...

93 For the purposes of the current applications, I have proceeded on the basis that 'personal injury or wrong' encompasses claims for damage to reputation as well as personal injury, such that claims for defamation or malicious prosecution are not precluded by the Bankruptcy Act.[31]

94 One further threshold issue arises, which was not the subject of submissions by the parties, being the question of whether Ms Giles is precluded from pursuing any claim for non‑economic loss in respect of an alleged personal injury by reason of the provisions of Part VBA of the Wrongs Act 1958 (Vic) ('Wrongs Act'). Section 28LE provides as follows:

A person is not entitled to recover damages for non‑economic loss in any proceeding in a court in respect of an injury to a person caused by the fault of another person unless the person injured has suffered a significant injury.

95 Section 28LB of the Wrongs Act provides that the threshold level for what constitutes a significant injury is more than five per cent for non‑spinal physical injuries, and ten per cent or more for psychiatric injury. Other provisions of Part VBA of the Wrongs Act prescribe the mechanism by which personal injury is to be assessed.

96 There is no evidence that Ms Giles has obtained what is commonly known as a significant injury certificate. However, while the absence of a significant injury would preclude Ms Giles from recovering damages in this proceeding (thus providing grounds for a stay of any claims for personal injury), it does not provide a basis for summary dismissal of the proceeding, at least at this stage of the proceeding. Further, the absence of any significant injury certificate would not preclude Ms Giles claiming damages for personal injury said to have arisen out of intentional acts. Rather, it could prevent her from recovering damages for non-economic loss arising out of negligence, or breach of some other duty.

97 However, the defendants are entitled to summary dismissal of the proceeding on the following grounds:

(a) as noted above, Ms Giles has no standing to bring any claims for losses not suffered by her personally (that is, where the claims are those of Shapher and/or Country Endeavours), and, by reason of her bankruptcy, Ms Giles has no standing to bring any claims for financial losses said to have been incurred by her;

(b) Ms Giles has not pleaded any viable cause of action in negligence, and, on the facts as pleaded she would not be able to bring a viable claim, as she has no real prospect of establishing that the defendants, or any of them, owed her a duty of care in the context of the litigation between them ;

(c) to the extent that Ms Giles would be permitted to bring a claim for an abuse of process, or a tortious conspiracy to give false evidence (which is not without doubt), the allegations made against the defendants with respect to the defamation proceeding and the bankruptcy proceeding all concern matters where the defendants would be immune from suit by reason of witness immunity and advocates' immunity;

(d) to the extent that Ms Giles would be permitted to bring a claim for malicious prosecution, such a claim would be unsuccessful, given that one of the required elements of the tort is that she must have been successful in the relevant proceeding;

(e) in relation to the claims under the heading 'fraud', these allegations relate exclusively to an agreement to which Ms Giles was not a party, and in any event, the quarry defendants' allegedly fraudulent breach of the settlement agreement would be time barred;

(f) in relation to the defendants' alleged intentional infliction of emotional harm, Ms Giles has not pleaded that she has suffered a recognised psychiatric injury. Further, given that most of the conduct complained of occurred in the context of the defamation proceeding, the defendants are immune from suit by reason of the principles of witness immunity and advocates' immunity;

(g) any claims Ms Giles may have for defamation and/or injurious falsehood have no real prospects of success, in that the alleged defamatory statements were largely made in the context of court proceedings, and are thus protected by absolute privilege;[32] and

(h) in any event, even if the conduct complained of was not immune from suit, it is an abuse of process for Ms Giles to seek to relitigate matters dealt with in the VCAT proceedings (the last of which was concluded in early 2011), the defamation proceeding, the s 29 application, and the appeals from the decisions in those proceedings. For present purposes, it is not in my view necessary to determine which claims and/or allegations Ms Giles is estopped from pursuing, or which are precluded as an abuse of process, given the nature of the claims made by Ms Giles in this proceeding, which are clearly intended to mount a collateral attack on the decisions in those proceedings. The only allegations which do not concern the initiation and conduct of court proceedings are some fairly minor instances of conduct on public roads and at community meetings, which will be considered further later in these reasons.

98 In their supplementary written submissions, the parties identified the possible causes of action as being discernible from the amended statement of claim, being:

(a) intentionally and/or recklessly causing emotional distress;

(b) intentionally and/or recklessly attempting to pervert the course of justice;

(c) abuse of process;

(d) fraud;

(e) negligence;

(f) malicious prosecution; and

(g) conspiracy to give false evidence.

99 For completeness, I have considered whether Ms Giles may have viable claims defamation and/or of injurious falsehood against the defendants, or any of them.

100 In relation to (a) above, I agree with the submissions of the lawyer defendants in that there is no known cause of action meeting this description, although the dissenting judgment of Maxwell P in Giller v Procopets (No 2)[33] suggests that the position is not as clear cut as contended for by the lawyer defendants. There is however known to the law the tort of intentional infliction of harm, which has been held by the authorities to extend to mental harm.[34] However, traditionally, the authorities (at least in common law jurisdictions other than the United States) have limited recovery of damages to circumstances where the intentional infliction of emotional distress has caused a recognised psychiatric illness.[35] Save for there being a reference in the amended statement of claim to Ms Giles receiving psychological care, Ms Giles has not pleaded that she suffers from a recognised psychiatric condition as a result of the defendants' conduct. The question of whether she should be given a further opportunity to plead a claim of such a nature will be considered later in these reasons.

101 In relation to (b) above, I agree that there is no civil cause of action of perverting or attempting to pervert the course of justice.

102 Further, in relation to (c) above, I agree that no action for abuse of process can be brought against the lawyer defendants, given that they were not parties to the defamation proceeding.[36] The position of the quarry defendants will be discussed later in these reasons.

103 In relation to (d) above, Ms Giles' claims in relation to fraud concern the settlement agreement reached between Cascacir and Shapher and Country Endeavours in relation to one of the VCAT proceedings on 30 August 2010. While the pleading of the claim of fraud is defective, this aspect of the amended statement of claim also falls away on the basis that Ms Giles was not a party to the settlement agreement. Further, in any event, on Ms Giles' own pleading, any claims are time barred, given that she says in the amended statement of claim that she discovered three months after the date of execution of the settlement agreement that the quarry defendants had no intention of complying with the terms of the settlement agreement, that is, sometime around the end of 2010. Given this proceeding was commenced on 19 September 2018, any claims arising before (or discovered before) 20 September 2012 are time barred.

104 In relation to (e) above, I agree that no duty of care is imposed upon the defendants to avoid foreseeable harm to the judiciary. In any event, to the extent that any obligations are imposed upon the defendants by the CPA, the issues raised by Ms Giles in the amended statement of claim, given they concerned the conduct of the defendant in the defamation proceeding, were dealt with in the s 29 application, as discussed in paragraphs 88 and 89 of these reasons. To the extent that Ms Giles relies upon the obligations imposed upon the lawyer defendants by professional conduct legislation, while the nature of those obligations may inform the standard of care to which the lawyer defendants must adhere to in their dealings with those to whom they owe a duty, those obligations do not of themselves give rise to a duty of care. While the categories of relationships which may give rise to a duty of care cannot be ever completely foreclosed, it seems to me to be so inherently unlikely that opposing parties in litigation and their legal representatives would be found to owe a duty of care to someone in the position of Ms Giles in relation to the conduct and subject matter of that litigation, that the defendants should not be put to the trouble and expense of defending such claims.

105 In the amended statement of claim, Ms Giles also alleged that the quarry defendants owed her a duty of care by reason of the following:

(a) their obligations under the CPA;

(b) the work plan and planning report with respect to the operations of the quarry;

(c) the planning permit and work authority for the quarry;

(d) the provisions of planning and environmental legislation, including the planning scheme with respect to the operations of the quarry;

(e) assertions made to the regulatory authorities regarding the operation of the quarry; and

(f) statements made in the quarry defendants' statement of claim in the defamation proceeding to the effect that 'they did not have an arrogant disregard for the people who lived in the area of the quarry'.

106 I have already noted that the provisions of the CPA do not give rise to an independent cause of action outside the statutory right to claim compensation under s 29 of the CPA. In relation to the other matters said to give rise to a duty of care on the part of the quarry defendants towards Ms Giles, I accept, at least for the purposes of the current applications, that these matters may give rise to a duty or duties on the part of Casacir with respect to the operations of the quarry (or the operations of the quarry may give rise to an action in nuisance). However, it seems to me to be entirely far-fetched that these matters could give rise to a duty to avoid causing harm to Ms Giles with respect to the bringing and conduct of the defamation proceeding.

107 A number of Ms Giles' claims under the heading 'negligence' concern an allegation that "the defendants conducted themselves in a negligent manner in relation to costs" (see paragraph 69 of the amended statement of claim: the particulars under this paragraph runs for some eight pages), in that they 'prepared, authorised, approved, charged for, filed served and/or refused to serve, bills containing and claiming a significant number of knowingly improper items charged falsely for costs in relation to the various cases'. Many of the complaints in this part of the amended statement of claim are phrased as if they were objections in a taxation proceeding. Ms Giles also alleged that the defendants caused her to run up significant unnecessary costs by reason of their conduct of the defamation proceeding, and had unreasonably delayed the service of bills of costs, stating that the quarry defendants, along with the fourth defendant:

... in spite of being legally unable to proceed with the costs, sought to not have those bills taxed but to have those bills adjourned sine die in order to have them hang over Giles' head indefinitely, presumably with the intention of forcing her to become bankrupt again after she had eventually emerged from the current bankruptcy they forced upon her.

108 It is apparent from the judgments in the appeal concerning the costs of the enforcement proceeding, the defamation proceeding, and the s 29 application that the quarry defendants obtained a number of substantial costs orders in their favour. There is little or no evidence before me as to the process by which these orders were quantified and enforced, save that I understand that Messrs Jeffrey and Curnow moved for bankruptcy after Ms Giles failed to satisfy a judgment debt pursuant to orders made by this Court by consent on 26 August 2017. I assume that the parties had the opportunity to go through the taxation process in the usual way. Indeed, a number of the complaints made by Ms Giles in the particulars must have been made on the basis of her access to bills of costs provided to her by the defendants.

109 Setting aside the question of whether the defendants, or any of them, could owe a duty of care to Ms Giles (which I have already answered in the negative), it seems to me to be an abuse of process to seek to re-litigate what are properly objections in a taxation hearing in a proceeding of this nature. Further, even if any such objections were resolved in her favour at a taxation hearing, the fact that certain items were taxed off or compromised does not of itself lead to a conclusion that the making of a claim for those items was negligent and/or malicious. Similarly, the complaint made by Ms Giles to the effect that the defendants' conduct of the defamation proceeding caused her to incur additional costs and expenses was squarely dealt with in the s 29 application.[37] To the extent any complaints by Ms Giles were not advanced and dealt with in the s 29 application, they should have been, in accordance with the principles in Anshun.[38] Further, it is entirely unclear as to how the conduct of the quarry defendants and the fourth defendant in refusing to serve bills of costs, or seeking to adjourn a taxation hearing, could give rise to a cause of action against the defendants, or any of them.

110 Finally, for completeness, a number of allegations under the heading 'Negligence', are more properly characterised as claims for malicious prosecution and/or a conspiracy to procure and/or give false evidence. I will consider these claims later in these reasons.

111 In relation to paragraph 98(f) above, I agree that the state of authority concerning whether a claim for malicious prosecution can be made with respect to the bringing of civil proceedings remains unsettled. It seems to be accepted that such a claim can be brought with respect to bankruptcy proceedings and disciplinary proceedings. For the purposes of the current application, I will assume, in Ms Giles' favour, that an action can be brought for malicious prosecution with respect to the initiation of civil proceedings such as the defamation proceeding and the bankruptcy proceeding.

112 Accordingly, the question remains whether leave should be given to Ms Giles to file an amended statement of claim with respect to the following causes of action:

(a) intentional infliction of mental harm;

(b) abuse of process (in the case of the quarry defendants only);

(c) malicious prosecution of civil proceedings;

(d) conspiracy to give false evidence; and

(e) defamation and injurious falsehood.

113 Leave should not be given to re-plead if any potential claims have no real prospects of success.[39] In determining whether Ms Giles has any viable claims against the defendants, or any of them, I will take Ms Giles' claims at their highest and best, that is, on the basis that she would be able to prove the factual allegations made in the amended statement of claim. That assumption should of course not be taken as suggesting that I accept that the allegations have been proved.

114 Prior to turning to the individual causes of action identified above, one overarching observation can be made about Ms Giles' submissions in opposition to the defendants' applications for summary judgment. Ms Giles appears to be labouring under the misconception that, because she has never made a claim for damages for personal injury in the various proceedings to which she has been a party, the bringing of her claims in this proceeding cannot be an abuse of process.

115 This submission fails to comprehend that the doctrines of cause of action estoppel, issue estoppel, Anshun[40] estoppel and abuse of process are generally concerned with preventing the re‑litigation of causes of action and issues. The fact that Ms Giles seeks substantially (but not entirely) different relief with respect to the conduct of the defendants in the defamation proceeding than she did in the s 29 application does not address the fact that the substance of her complaints concerning the conduct of the defendants in the defamation proceeding were comprehensively dealt with in the s 29 application (and the subsequent application for leave to appeal). The paramount principle underlying these doctrines is the public interest in there being finality of litigation, and it is this policy consideration which also underpins the doctrines of advocates' immunity and witness immunity. Put simply, when one looks at the substance of the allegations made by Ms Giles in the amended statement of claim, rather than the alleged consequences and losses said to have been caused by the conduct which is the subject of those allegations, it is abundantly clear that Ms Giles is seeking to revisit the issues in the previous litigation between her and the defendants.

116 Further, while Ms Giles does not claim any relief with respect to the defendants' conduct of the VCAT proceedings, a careful review of the amended statement of claim shows that, practically speaking, Ms Giles does in fact seek to re‑litigate the issues in the VCAT proceedings, including the costs orders which were the subject of an unsuccessful appeal to this Court. For example, paragraph 24 of the amended statement of claim concerns the allegation that the quarry defendants had brought their claims for injurious falsehood and misleading and deceptive conduct in the full knowledge that those claims were fraudulent and an abuse of process and/or an attempt to pervert the course of justice. Those claims were said to have arisen out of Ms Giles having revealed the fact that the quarry defendants had, among other things, lied under oath in the VCAT proceedings, had breached planning conditions, and had failed to comply with work plans, conditions, and undertakings with respect to the operations of the quarry. The particulars of the alleged misconduct that Ms Giles had revealed on the website (in statements which were ultimately found to be defamatory) run to some nine pages. While no loss or damage was claimed arising out of the conduct Ms Giles was said to have 'revealed', Ms Giles could only make good her claims that the quarry defendants' claims in the defamation proceeding were an abuse of process by proving the truth of the matters she had 'revealed' on the website.

117 Ms Giles appears to be contending that her allegation that the statements made by her on the website were true has not been litigated before, because she did not plead a defence of truth in the defamation proceeding. She says that she did not rely upon a defence of truth in the defamation proceeding because her then lawyers advised her that to do so would be very costly, because it would result in there being a much longer trial. At the commencement of the trial of the defamation proceeding before Pagone J (by which time she was self-represented) she made an application to amend her defence to plead a defence of truth.[41] Unsurprisingly, given the timing of the application, and the fact that if leave were granted, the trial would inevitably have to have been adjourned, that application was refused.

118 In my view, to the extent that Ms Giles seeks to re-agitate, in effect, a defence of truth in the defamation proceeding in this proceeding (noting that such a defence would have carried with it the vice of seeking to re‑litigate the issues in the VCAT proceedings, at least in part), Ms Giles is estopped from bringing these claims by reason of the principles in Anshun.[42] The occasion for bringing forward her claims that the statements she made on the website were true was when she filed her defence in the defamation proceeding, or at least within a reasonable period after that date. That she did not do so, apparently acting on the advice of her lawyers, is not something that can or should be visited on the quarry defendants in this proceeding. Allowing such claims to proceed would be oppressive to the quarry defendants, and would bring the administration of justice into disrepute.

119 Another general observation I would make is that Ms Giles seems to dismiss the findings made by McDonald J in the s 29 application on the basis that the s 29 application was not conducted as a 'real trial'. It is correct that the s 29 application was heard and determined on the basis of affidavits and submissions, rather than viva voce evidence. That seems to me to be in keeping with how such applications are generally conducted in this Court. In any event, the s 29 application was the subject of an application for leave to appeal on numerous grounds: any concerns Ms Giles had regarding the procedure adopted for the application, including any contention that she was denied procedural fairness by McDonald J, could have been and should have been ventilated in her application for leave to appeal.

120 In any event, some of Ms Giles' concerns concerning the manner in which McDonald J conducted the s 29 application were raised by her in her application for leave to appeal, and were dealt with by the Court of Appeal, which is evident from the following extract of the reasons of the Court of Appeal (footnotes omitted):

Alleged premature cessation of the CPA proceeding. The applicant's contention that McDonald J erroneously determined that he had the responsibility to stop the litigation 'at that point' appears to be based on his statement set out at [64] above. The applicant submitted that McDonald J had 'misused' Yara 'to support his case of stopping the application' and that as a result, she had been deprived of any full and proper investigation of her claims. Reliance on Yara was said to be misconceived because the Court in that case had made orders pursuant to s 29 in the absence of an application by a party. The applicant's specific complains in relation to the application being stopped were as follows:

Instead of a proper hearing or a trial, the judge hearing my s 29 application held a 2½ hour hearing on the morning of 26 October 2015. The judge asked me no questions in relation to most of the material I had provided. I was not given an opportunity [to] present my case as fully as possible within the limits of the law, or to respond to any questions that the judge might have; neither the respondents nor their legal team had to answer to any of the allegations; and the judge did not give proper, informed, or sufficient weight to relevant allegations and proofs. This short hearing did not take the CPA seriously and the judge's finding is therefore erroneous.

The applicant submitted that McDonald J should have adopted the approach taken by Dixon J and the Court of Appeal in the Hudspeth v Scholastic Cleaning and Consultancy Services Pty Ltd proceeding which involved a full investigation of the conduct of various individuals. The applicant placed particular reliance on Dixon J's statement that 'the contraveners, as wrongdoers, cannot have their costs of the s 29 inquiry'.

We reject the applicant's contentions. McDonald J conducted a hearing that was appropriate for the s 29 application. He permitted the applicant to file multiple affidavits with exhibits running to hundreds of pages, detailed written submissions and other material in support of the application. The duration of the hearing was appropriate in the circumstances where no deponent was cross‑examined and the parties were given an adequate opportunity to make oral submissions. McDonald J's detailed reasons in his substantive judgment indicate that the gave careful and detailed consideration to the material upon which the parties relied on the factual and legal issues that were raised in the CPA proceeding. McDonald J did not at any stage prematurely terminate the CPA proceeding as suggested by the applicant. As discussed at [125] above, McDonald J considered the merits of the s 29 application.

Further, although McDonald J stated that he obtained guidance from the approach set out in Yara, he did not in fact adopt that approach - there was nothing quick or brief about the manner in which he dealt with the s 29 application. As we have stated at [127] above, a quick and brief approach to an application under s 29 of the CPA will not necessarily be suitable in all cases.[43]

121 Later in its reasons, the Court of Appeal went on to say as follows (footnotes omitted):

Although none of the applicant's grounds of appeal allege that McDonald J denied her natural justice, there are references to, or suggestions of, such a denial in para 5.2 of her application for leave to appeal and in paras 2 and 3 of her written case. Paragraph 5.2(c) of the application for leave to appeal appears to suggest that the hearing of the CPA proceeding was deficient because the respondents were not required to go into the witness box and 'explain each instance complained of'. Paragraph 2 of the applicant's written case states that McDonald J 'deprived [her] of any full and proper investigation' of her allegations of breaches of the overarching obligations by the respondents.

In our opinion, the application has not established that McDonald J failed to comply with the rules of natural justice. On 8 May 2015, he gave leave to the applicant to file any further affidavit in support of the s 29 application. Notwithstanding that the applicant filed 10 additional affidavits rather than a single additional affidavit, McDonald J permitted her to rely on those affidavits. At the hearing on 26 October 2015, the applicant relied on a 45 page written submission and stated that she did not propose to add anything by way of oral submissions. She was also given an opportunity to reply to the respondents' oral submissions and to answer questions put by McDonald J.[44]

122 Accordingly, to the extent that Ms Giles' allegations in this proceeding raise issues that were or should have been dealt with in the s 29 application (including the application for leave to appeal from the decision of McDonald J in the s 29 application), the raising of such allegations is prima facie an abuse of process. Ms Giles' contention that the findings in the s 29 application somehow lack validity lacks merit.

123 Finally, while it is not possible to conclusively determine the matter given the state of the pleadings, to the extent that Ms Giles claims that she suffered personal injury as a result of the defendants' initiation and conduct of the defamation proceeding, those claims are highly likely to be time barred. As noted above, by reason of her bankruptcy, the only claims Ms Giles has standing to bring are her claims for personal injury. Section 5(1AA) of the LAA provides that, subject to s 5(1A) of the LAA, an action for damages for personal injuries must be brought within three years after the cause of action accrued. Section 5(1A) of the LAA provides as follows:

An action for damages for negligence nuisance or breach of duty (whether the duty exists by virtue of a contract or of provision made by or under a statute or independently of any contract or any such provision) where the damages claimed by the plaintiff consist of or include damages in respect of personal injuries consisting of a disease or disorder contracted by any person may be brought not more than 3 years from, and the cause of action shall be taken to have accrued on, the date on which the person first knows -

(a) that he has suffered those personal injuries; and

(b) that those personal injuries were caused by the act or omission of some person.

124 Of course, Ms Giles has not actually pleaded that she has suffered any disease or disorder as a result of the defendants' alleged conduct, except in the most general terms. She refers to suffering from diabetes and breast cancer, without pleading any causal link between those diseases and the defendants' conduct, or without providing any dates from which she says she suffered those conditions. Ms Giles does not refer to any psychiatric or psychological condition from which she says she suffers, save to say that she has been under psychological care since 2007. However, given that the trial of the defamation proceeding was conducted in April 2013, and judgment was delivered on 23 May 2013, there is a strong possibility that many, if not all of Ms Giles' claims in respect of personal injury would be time barred, in that any alleged damage was suffered prior to 19 September 2015, being three years prior to the issue of this proceeding. The time limits for claims for defamation are even stricter, being twelve months from the date of the relevant statement or publication. I accept that s 5(1A) of the LAA provides that in actions for personal injury with respect to a disease or disorder time only starts to run once a plaintiff knows they suffer from that disease or disorder, and that the disease or disorder was caused by the conduct of another, but the likelihood that many, if not all of Ms Giles' claims would be time barred is relevant to the exercise of discretion under s 64 of the CPA.

125 I will now turn to consider the individual potential causes of action identified in paragraph 112 above.

126 As previously noted, the authorities do recognise the tort of intentional infliction of mental harm. In Wilkinson v Downton,[45] a woman who had been falsely informed that her husband had been severely injured in an accident was able to recover damages for nervous shock. Recovery of damages is available where a person does an act (not necessarily a physical act), which is calculated to cause harm to another and in consequence causes physical harm, including emotional shock. However, there are stringent limitations on liability. First, the actual misconduct must have been reasonably likely to cause harm to a normal person, and secondly:

The plaintiff's emotional distress must have been accompanied by an objective and substantially harmful physical or psychopathological consequences, such as actual illness.[46]

127 These requirements have generally been interpreted by the courts in Australia and the United Kingdom to limit liability to cases where the requisite intention of the tortfeasor must relate to not only the act itself, but must extend also to the infliction of harm, and where the harm concerned is a recognised psychiatric illness.[47]

128 There is some difficulty in the current case in identifying what conduct of the defendants was said to amount to the intentional infliction of mental harm: on one view of the amended statement of claim, it is all of it. Further, Ms Giles alleges that the defendants' conduct was 'intentional', but does not plead the facts, matters and circumstances by which she says that the conduct is intentional. Finally, Ms Giles does not identify any recognised psychiatric illness said to have been caused by the defendants' intentional conduct.

129 The above matters are of course only pleading issues: here, the defendants seek summary judgment. However, upon reviewing the amended statement of claim, including the particulars of loss and damage annexed to the amended statement of claim, it is clear that the conduct of the defendants which was said to have caused Ms Giles emotional distress and harm is intimately connected with the initiation and conduct of the defamation proceeding. That much is clear from paragraph 1(c) under heading "A1 - The damage and personal injury to Giles' reputation", where the particulars refer to Giles being falsely recorded in court documents, judgment and transcripts as a liar, and as a "defamer". Under heading "A2 - The damage and personal injury to Giles' emotions", the effects upon Ms Giles' emotional health is said to have been caused by the defendants' conduct is particularised, but the conduct itself is not particularised. However, read with the allegations in the amended statement of claim of negligence and/or malicious prosecution, I can infer that the conduct said to be negligent, or to have amounted to malicious prosecution, is the conduct which is said to have caused her emotional harm.

130 The difficulty facing Ms Giles in mounting a claim for intentional infliction of emotional harm as a stand-alone claim based upon the allegations in the amended statement of claim is that, with some minor exceptions (such as the quarry defendants' conduct at community meetings, and what was said to be intimidatory conduct in photographing her and blocking public roads), all of the conduct complained of relates to the prosecution and conduct of court proceedings, being the defamation proceeding and the s 29 application.

131 The authorities make it clear that there is a wide ranging immunity from suit conferred upon witnesses in court proceedings. The decision of the Court of Appeal in Bodycorp Repairs Pty Ltd v Australian Associated Motor Insurers Ltd ('Bodycorp')[48] reaffirmed the principle that no claim based upon giving or procuring false evidence in court proceedings can be maintained by reason of the principle of witness immunity. This immunity (along with the principle of advocates' immunity) is based upon the public interest in finality of litigation. While there may be an exception to this principle in cases where it is alleged that a witness has also been the instigator of a malicious prosecution, it is not necessary for me to decide that matter given the fundamental difficulty facing Ms Giles in pressing her claim for malicious prosecution, as discussed later in these reasons.

132 In Commonwealth of Australia v Griffiths,[49] the New South Wales Court of Appeal stated as follows:

The rationale for witness immunity is generally stated as being founded in the promotion of two objectives: first, ensuring that witnesses are able to give evidence freely in an atmosphere [devoid] of threats of suit from disappointed litigants; and secondly, to avoid multiplicity of actions in which the evidence would be tried over again[50]

133 Further, the principle extends to provide immunity from suit a person who would otherwise be held vicariously liable for the conduct of another,[51] and extends to out of court conduct, provided that the conduct is sufficiently connected with the relevant proceeding.[52]

134 In her written submissions, Ms Giles does not appear to take issue with the defendants' submissions concerning the immunity of witnesses. However, with regard to the claims made against the lawyer defendants, she rejects the proposition that these claims are barred by the principle of advocates' immunity, contending that the lawyer defendants must be accountable for their conduct.

135 Ms Giles submitted that the advocates' immunity only applies to protect lawyers from claims brought by their own clients and former clients. She observed that the immunity has been abolished in the United Kingdom, noting that Australian courts have traditionally followed developments in that jurisdiction. She referred to recent decisions confining the scope of the immunity, and some commentary critical of the immunity. While noting that her claims against the lawyer defendants were not brought under the CPA, she submitted that the power of the Court to make orders for compensation under the CPA illustrates the fact that lawyers can be ordered to pay compensation for breaches associated with in court conduct, and to be accountable for their conduct in court.

136 Ms Giles' submission that the principle of advocates' immunity does not preclude her from bringing claims against the lawyer defendants with respect to their conduct of the defamation proceeding lacks merit. First, I do not accept the contention that, because of the tendency of Australian law to follow developments in the United Kingdom, the principle is likely to be abolished under Australian law. In Attwells v Jackson Lalic Lawyers ('Attwells'),[53] the High Court was expressly invited to reconsider the decisions in Giannarelli v Wraith,[54] and D'Orta-Ekenaike v Victoria Legal Aid ('D'Orta')[55] to the effect that a barrister or solicitor is immune from suit in respect of their participation in the judicial process, including work done out of court which leads to a decision affecting the conduct of a case in court. The Court declined to do so, but confirmed that the immunity did not extend to protect a solicitor who had given negligent advice leading to the settlement of a pending court proceeding. The Court said the immunity was so confined, as:

the public policy, protective of finality, which justifies the immunity at the same time limits its scope so that its protection can only be invoked where the advocate's work has contributed to the judicial determination of the litigation.[56]

137 The decision of the High Court in Attwells[57] was the second time in just over a decade that the High Court had been urged to follow the United Kingdom and abolish the advocate's immunity, and declined to do so. A further attempt in the Kendirijian v Lepore ('Kendirijian')[58] was also rejected. In D'Orta,[59] the Court not only reaffirmed the existence of the immunity, but extended the immunity to the work of solicitors which are intimately connected with the conduct of a proceeding in court. The plurality stated as follows:

there is no reason to depart from the test described in Giannarelli as work done in court 'or work done out of court which leads to a decision affecting the conduct of the case in court' or ... 'work intimately connected with' work in a court. (We do not consider the two statements of the test differ in any significant way).[60]

138 The decisions of the High Court in Attwells[61] and Kendirijian[62] have no doubt emphatically closed the door against any further attempts to abolish the principle of advocates' immunity at common law, at least in the short to medium term. Relevantly, the maintenance of the principle, notwithstanding its abolition in United Kingdom (and New Zealand) reflects the great weight Australian law gives to the principle of finality of litigation. The relevance of that principle as the underpinning of advocates' immunity means that the immunity cannot be limited only to claims where a suit is brought by a lawyer's client or former client.

139 In the current case, there is some difficulty in disentangling the conduct said to have been engaged in by the lawyer defendants directly, and the conduct of the quarry defendants upon the advice of the lawyer defendants. However, it is plain from the amended statement of claim that almost all of the conduct sought to be laid at the feet of the lawyer defendants concerned the conduct of the appeal to this Court from the costs orders made in the enforcement proceeding, the defamation proceeding, and the s 29 application. Indeed, many of the allegations concern the manner and content of Mr Southall QC's submissions in court.

140 Further, to the extent that Ms Giles makes allegations concerning the conduct of the quarry defendants in the VCAT proceedings, the principles of witness immunity and advocates' immunity apply to preclude Ms Giles from bringing claims against the quarry defendants and Mr Smith. Section 143 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) provides as follow:

(1) A member of the Tribunal has, in the performance of his or her functions as member, the same protection and immunity as a judge of the Supreme Court has in the performance of his or her duties as judge.

(2) A person representing a party in a proceeding has the same protection and immunity as a legal practitioner has in representing a party in proceedings in the Supreme Court.

(3) A party to a proceeding has the same protection and immunity as a party to proceedings in the Supreme Court.

(4) A person appearing as a witness before the Tribunal has the same protection and immunity as a witness has in proceedings in the Supreme Court.

. . .

141 Finally, reference is made through the course of the amended statement of claim to a letter sent by or on behalf of the quarry defendants on 19 August 2011. That letter is not in evidence, but from its timing and description in the amended statement of claim, it seems that it may have been a letter of demand, or a 'concerns notice' within the meaning of s 14 of the Defamation Act 2005 (Vic). While the actual sending of a letter of this nature may not be protected by any immunity, Ms Giles' complaints in the statement of claim are focussed upon how this letter was deployed by the defendants in the defamation proceeding

142 Accordingly, Ms Giles' claims against the defendants for intention of infliction of emotional harm, insofar as she is says she has suffered harm as a consequence of their conduct of the VCAT proceeding, the defamation proceeding, the s 29 application, and the bankruptcy proceeding have no real prospects of success, and should be dismissed.

143 In Treasury Wine Estates Ltd v Melbourne City Investments Pty Ltd ('Treasury Wines'),[63] the Court of Appeal summarised the principles applicable to an application to stay a proceeding as an abuse of process, as follows (citations omitted):

The categories of abuse of process are not closed.

Those categories include the following circumstances:

(a) where the court's processes are invoked for an illegitimate or collateral purpose;

(b) where the use of the court's procedures would be unjustifiably oppressive to a party; and

(c) where the use of the court's procedures would bring the administration of justice into disrepute.

The category in (a) above has also been described as where the predominant purpose of bringing the proceeding is improper.

The question of whether the purpose of bringing a proceeding is improper must be assessed in the context of statements in the authorities that the legitimate purpose for bringing a proceeding is the protection or vindication of particular legal rights or immunities.

The question of what constitutes an improper purpose was recently considered by the Privy Council in Crawford Adjusters (Cayman) Ltd v Sagicor General Insurance (Cayman) Ltd. Lord Wilson JSC approved of a statement by Isaacs J in Varawa v Howard Smith Co Ltd that a purpose is improper if it is 'entirely outside the ambit of the legal claim upon which the Court is asked to adjudicate'. His Lordship stated that a purpose of achieving victory in the proceeding 'with all such consequences as may flow from it' is not improper. Lord Sumption JSC described an improper purpose as a 'purpose of obtaining some wholly extraneous benefit other than the relief sought and not reasonably flowing from or connected with the relief sought.'

There is a distinction between bringing proceedings to a successful conclusion, so as to take advantage of an entitlement or benefit which the law gives the litigant in that event, and bringing proceedings when the purpose is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed or some collateral advantage beyond what the law offers.

144 While the current application is not an application of the kind considered by the Court of Appeal in Treasury Wines,[64] the principles above are relevant to determining whether Ms Giles has a viable claim that the quarry defendants, in bringing the defamation proceeding, had engaged in an abuse of process.

145 Ms Giles claimed that the defendants engaged in an abuse of process and/or attempted to pervert the course of justice when they commenced the defamation proceeding, as they sought to use, and did use, court procedures 'for a purpose unrelated to the objectives for which they had purportedly taken action'. She said the purpose of these claims was to bully and intimidate Giles into removing the entirety of the website, and to assist the quarry defendants to gain access to her assets to force Giles and her related parties from the property and the area, because the quarry defendants knew they had the power to stop the quarry over the water issues.

146 As can be seen from the above, a person alleging that a plaintiff in a proceeding is engaging in an abuse of process because that action has been brought for an illegitimate or collateral purpose has a high bar to clear. In the current case, Ms Giles would have to establish that the purpose of the quarry defendants (or at least the predominant purpose)[65] in bringing the defamation proceeding was to shut down the website and/or to drive her from the neighbourhood, as opposed to seeking redress for words that were found by Pagone J to be defamatory, and 'ought never to have been made'.[66] Further, a plaintiff in an action for abuse of process is required to prove not only an improper purpose, but also deployment of the relevant litigation in furtherance of the improper purpose, distinct from the pursuit of the proceeding itself in the ordinary way.[67]

147 The difficulty with Ms Giles' allegations that the question of the quarry defendants' motivation in bringing the defamation was squarely addressed by McDonald J in the s 29 application. The relevant section of his Honour's reasons are reproduced below:

Mrs Giles contends that the plaintiffs were dishonest as to the real reasons for bringing their claim against her. Mrs Giles contends that the real reason was to have the entire website, www.quarryfight.com.au, removed from the internet, as opposed to removing the particular words which were the subject of the plaintiffs' claims in defamation. Mrs Giles contends that the failure of the plaintiffs to honestly disclose the real reason for bringing the claim against her was a breach of their overarching obligation under the Act to be honest and truthful.

Mrs Giles' website was the vehicle by which she published seriously defamatory statements in respect of the plaintiffs. If the plaintiffs wanted to have the website shut down that is hardly surprising. Mrs Giles closed the website. It was not done as a result of any court order. Mrs Giles could, if she had been minded to do so, simply have removed from the website the defamatory statements.

Mrs Giles alleges a breach of the overarching obligations by reason of the plaintiffs' failure to disclose their intention of closing the website. Exhibit D5 includes candid statements on behalf of the plaintiffs disclosing their desire to have the website shut down. In his opening submission before Pagone J, Mr Southall referred to correspondence from the plaintiffs' solicitor to Mrs Giles on 19 August 2011. That correspondence sought the removal of the website as a matter of urgency. Mr Jeffrey gave evidence in chief to the effect that his purpose in instructing Mr Smith, his solicitor, to send a letter to Mrs Giles was 'for the purpose of trying to stop the website'. Plainly, there was no attempt on the part of the plaintiffs to conceal their desire to have the website removed. Mrs Giles' contention that the plaintiffs were dishonest by failing to disclose their intention to have the website removed is misconceived.

Mrs Giles also complains that:

In spite of the entirety of the website not having been pleaded, the plaintiffs repeatedly refer to the entire website being on the internet for over a year and that it was the entire website that caused the plaintiffs' problems and concern...

It is difficult to understand what point Mrs Giles seeks to advance. Plainly, the website was on the internet for over a year. What is equally clear is that the claim for defamation is confined to particular defamatory statements which were published by Mrs Giles via the website.

Mrs Giles summarises her position on this issue as follows (citations omitted):

The plaintiffs admitted that the principal purpose of the action was the removal of the entire website (in spite of having admitted that it was not defamatory). I contend they have tried to use this to get yet further unwanted financial benefit for themselves, and to try to drag me down further than they already had. Truth appears to be a very capricious matter to them. The removal of the words they specified as having found offensive (although true) was a ruse by which they ultimately obtained their real objective - the removal of the entire website.

The plaintiffs presented to the Court a statement of claim that purports to limit the case to defamation, relating to a very limited scope a small number of words on a very large website. However, they subsequently admitted in testimony and submissions that the removal of the entire website was the real purpose of the action.

The small number of publications were, in fact, innocuous, and the action was not about them at all. In addition I have proved that it was the entire website that the plaintiffs wanted pulled down and that this purported action in relation to defamation was the means by which they tried to accomplish their ultimate goal and hidden agenda and by which means they sought to penalise me for revealing who they were and what they were doing, or not doing, as the case may be.

A number of observations may be made regarding the matters set out above. First, as with much of the material filed in support of her application, Mrs Giles has used the affidavits which she has filed in support of her application as a vehicle to repeat disparaging statements against the plaintiffs. Second, her statement that the publications on the website 'were in fact, innocuous' discloses her failure to accept the findings of the Court of Appeal that the publications on the website constituted a serious defamation of the plaintiffs. Third, Mrs Giles fails to establish how any conduct on the part of the plaintiffs was in any way false and misleading.[68]

148 The findings of McDonald J above were subject to a direct challenge in Ms Giles' application for leave to appeal. In its reasons[69] the Court of Appeal referred to one of Ms Giles' proposed grounds of appeal as being that McDonald J failed to give any or sufficient weight to, among other things:

the [quarry defendants'] dishonest conduct and false testimony, including in relation to their reasons for taking action against [Ms Giles].[70]

149 The Court of Appeal upheld the findings of McDonald J with respect to this ground, stating as follows:

McDonald J's substantive judgment indicates that he carefully considered the applicant's contentions that the respondents had lied and had breached their overarching obligations in the defamation proceeding. He found that the respondents had not deliberately lied on oath about any matter and that they had not breached any of their overarching obligations. Having reviewed the evidence relied upon by the applicant in support of her contentions, we are of the view that McDonald J made the correct decision.[71]

150 Accordingly, Ms Giles' attempt to re‑agitate the issue of the motivation of the quarry defendants in bringing the defamation proceeding by alleging that they had engaged in an abuse of process is itself an abuse of process.

151 However, Ms Giles' allegation that one of the quarry defendants' motivation in bringing the quarry proceeding was, in effect, to ruin her financially and to force her from her property, has not been directly raised in any proceeding before, save perhaps in the bankruptcy proceeding. In my view, it was unreasonable of her not to do so. While the amended statement of claim and the other evidence filed on behalf of Ms Giles in the current application does not disclose when Shapher sold the property, a transfer of land document exhibited to an affidavit sworn by the solicitor for the lawyer defendants suggests the property was sold in March 2014, over a year before the hearing of the s 29 application, such that she would have known that the conduct she sought to lay at the feet of the quarry defendants had caused her loss (noting that the compensation claimable under s 29 of the CPA is not limited to compensation for legal costs.) Further, it must also have been apparent to Ms Giles at the time of the hearing of the s 29 application that she was going to be required to pay substantial sums to the quarry defendants on account of damages and costs, the hearing of the s 29 application having post-dated the decision of the Court of Appeal with respect to the defamation proceeding, which substantially increased the damages payable to Messrs Curnow and Jeffrey. If Ms Giles had genuinely held the view that the bringing of the defamation proceeding was an abuse of process because the quarry defendants wanted to ruin her financially and to force her from the property, then that allegation should have been made in the defamation proceeding and/or the s 29 application.

152 Ms Giles, in contending that the defamation proceeding was brought for a collateral purpose, appears to be conflating the consequences of her disputation with the quarry defendants and the motives of the quarry defendants: that is, because the litigation has ruined her financially and she had to sell the property, that must have been what the quarry defendants intended to occur. With respect, that approach is consistent with the flavour of the entirety of the allegations made by Ms Giles against the defendants in this proceeding.

153 Finally, for completeness, both Deputy Registrar Ryan and the Judge Burchardt of the Federal Circuit Court held that the service of a bankruptcy notice by Messrs Jeffrey and Curnow on 2 December 2017 was not an abuse of process,[72] and they had legitimately invoked the insolvency jurisdiction of the Federal Circuit Court.

154 Ms Giles claims that the defendants commenced and continued a malicious prosecution by bringing and pursuing their claims in the defamation proceeding, including their discontinued claims for injurious falsehood and misleading and deceptive conduct, and their unsuccessful claim for aggravated damages. The High Court summarised the elements of malicious prosecution in A v State of New South Wales.[73]

For a plaintiff to succeed in an action for damages for malicious prosecution the plaintiff must establish: (1) that proceedings of the kind to which the tort applies were initiated against the plaintiff by the defendant; (2) that the proceedings terminated in favour of the plaintiff; (3) that the defendant, initiating or maintaining the proceedings acted maliciously; and (4) that the defendant acted without reasonable and probable cause.[74]

155 As noted above, there is some uncertainty as to whether the tort of malicious prosecution can apply to civil proceedings under Australian law,[75] and I have proceeded on the basis that the cause of action can so apply, as has been accepted in the United Kingdom in Willers v Joyce.[76] However, in pursuing a claim for malicious prosecution in relation to the defamation proceeding, Ms Giles faces an insurmountable hurdle, in that the defamation proceeding was not resolved in her favour, and the appeal process has been exhausted. The elements of the cause of action have not been satisfied, and cannot be satisfied.

156 I do not consider the failure of the quarry defendants to obtain an award for aggravated damages in the defamation proceeding to give rise to any liability for malicious prosecution, nor does the original pursuit of their claims for injurious falsehood and misleading and deceptive conduct. The claim for aggravated damages was not a separate cause of action, it was merely a head of damage, which Pagone J held that the quarry defendants had not made out to his satisfaction. The question of whether the quarry defendants' claim for injurious falsehood, and its subsequent discontinuance, was tainted by impropriety was comprehensively dealt with by McDonald J in the s 29 application, and Ms Giles has exhausted the appeal process in that regard. It is commonplace for parties to withdraw and amend claims during the course of civil litigation, often with cost consequences, as occurred during the pre-trial phase of defamation proceeding. I simply cannot see how the initial pursuit of the injurious falsehood and misleading and deceptive conduct claims could have caused Ms Giles loss and damage over and above the incurring of legal costs, and I am not the first to hold that view.[77]

157 It does not appear from the amended statement of claim that Ms Giles alleges that the initiation of the bankruptcy proceeding was an abuse of process. However, if that is a claim that Ms Giles intended to pursue, I repeat my observations in paragraph 153 above.

158 I agree with the submissions advanced on behalf of the lawyer defendants that the principle of witness immunity, recently discussed and reinforced by the Court of Appeal in Bodycorp[78] precludes Ms Giles from maintaining any claim of this nature against the defendants. In Bodycorp,[79] the Court of Appeal refused to grant leave to appeal against a decision of a County Court judge to grant summary judgment in favour of parties and witnesses in previous proceedings involving the applicants for leave to appeal, along with those parties' lawyers. The applicants had pleaded that the parties in the previous proceeding, along with their lawyers, and a number of witnesses, were all parties to a conspiracy to injure the applicant by the unlawful means of perverting the course of justice by procuring and giving false evidence. The primary judge had granted summary judgment in favour of the witnesses and the lawyers on the basis that the principle of witness immunity precluded any claim based upon their conduct as witnesses, and on the basis that the principle of witness immunity extends to defeat a claim based upon an alleged conspiracy to give or procure the giving of false evidence. She relied upon the decisions of the High Court in Cabassi v Vila ('Cabassi'),[80] and D'Orta‑Ekenaike v Victorian Legal Aid ('D'Orta'),[81] including the following statement of Rich ACJ in Cabassi[82] (citations omitted):

An action by the defeated party cannot, for equally good reasons, be maintained against a witness or witnesses for giving false testimony in favour of his opponent. Public policy and the safe administration of justice require that witnesses, who are a necessary part of the judicial machinery, be privileged against any restraint, excepting that imposed by the penalty for perjury. Though not a party to the former suit and judgment, the merits of that judgment cannot be re‑examined by a trial of the witness' testimony in a suit against him. The procedure, if permitted, would encourage and multiple vexatious suits and lead to interminable litigation.[83]

159 The primary judge also referred to the following statement of McTiernan J in Cabassi:[84]

But, even if a conspiracy to commit a criminal act could add to or change the tortious quality of the act and in that way provide ground for an action other than that which may lie for the act itself, such an action would not lie if the execution of the conspiracy consisted in the giving of evidence by a witness in the course of a judicial proceeding. It is a rule of law that no civil action lies at the suit of any person for any statement made by a witness in the course of giving evidence in a judicial proceeding. The rule, which is founded on public policy, is not confined to actions for defamation but applies to any form of action.[85]

160 The primary judge also referred to the following statement by the plurality from D'Orta,[86] which, among other things, makes it clear that the immunity extends to steps preparatory to the alleged giving of false evidence:

Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. Seldom will a party have contested litigation without believing, or at least hoping, that it will be resolved in that party's favour. If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others - the judge, the witnesses, advocates - anyone other than the party whose case has been rejected.

This is no new phenomenon. It is a problem with which the common law has had to grapple for centuries. Its response has been the development of immunities from suit for witnesses, judges and advocates. The origin of these rules can be traced to decisions of the 16th and 17th centuries.

From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. Nor could the disappointed litigant seek to demonstrate that what was said by the witnesses had defamed that litigant. All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed. And it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done or is alleged to have been done negligently or even done deliberately and maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps.[87]

161 The Court of Appeal rejected the applicants' contention that 'the doctrine of witness immunity does not apply to a conspiracy to induce a witness to give evidence, or conduct amounting to perverting the course of justice by procuring or inducing a witness to lie',[88] stating:

We wholly agree with the primary judge's reliance on those statements of the High Court. The effects of those (and other) statements in Cabassi and D'Orta-Ekenake is that witness immunity extends to civil claims for damages against all persons alleged to have induced or procured a witness to lie in his or her evidence in court, however the cause of action is framed.[89]

162 The Court of Appeal also found that the applicants' contention that the witness immunity did not apply to the conduct of legal practitioners, insofar as they were said to have been acting pursuant to a conspiracy to procure false evidence, had no prospects of success.[90]

163 Accordingly, the allegations against the defendants, insofar as they concern the alleged giving or procuring of false evidence at the trial of the defamation proceeding, and in the course of the bankruptcy proceeding, including the taking of any steps preparatory for the giving of such evidence, have no real prospects of success.

164 Ms Giles has not brought any claims under the headings of 'defamation' or 'injurious falsehood', However, for completeness, given the nature of the allegations in the amended statement of claim, and the multiple references to the defendants having 'defamed' Ms Giles, and to the reputational damage alleged to have been suffered by Ms Giles, I have considered whether she may have viable claims of this nature. I have concluded that she does not have any viable claims.

165 The amended statement of claim contains a number of references to the defendants having defamed Ms Giles in the VCAT proceedings and the defamation proceeding (see, for example, paragraphs 52 to 54, 63, and 77 of the amended statement of claim, and part A-1 of the annexure to the amended statement of claim). However, Ms Giles makes no express claims for defamation. Nor could she. The conduct complained of took place almost exclusively in the context of the conduct of the defamation proceeding. That much is clear from part A-1 of the annexure to the amended statement of claim, which refers to false allegations being made against her being available in judgments, transcripts and other court documents. To the extent allegations are made concerning what was said by the quarry defendants at community meetings, while there is no detail as to when these community meetings occurred, I suspect that, given the chronology of events regarding the development of the quarry, Ms Giles would be hopelessly out of time to bring any claim for defamation, noting the one‑year limitation period for claims for defamation under the LAA.

166 While Ms Giles refers to the defendants making false statements about her throughout the amended statement of claim, even setting aside the fact that these false statements were made in the context of ongoing litigation, any claims by Ms Giles against the defendants would have no real prospects of success, as she would be unable to satisfy the elements of an action for injurious falsehood. In order to maintain an action for injurious falsehood, Ms Giles would need to establish:

(a) a false statement of and concerning the plaintiff's goods or business;

(b) publication of that statement to a third person;

(c) malice on the part of the defendant; and

(d) proof by the plaintiff of actual damage.[91] (emphasis added)

Here, any claim by Ms Giles falls at the first hurdle, in that, on the basis of the facts pleaded by her in the amended statement of claim, she would be unable to establish that the defendants had made false statements of and concerning her goods or business. The statements said to have been made by the defendants (or any of them) regarding Ms Giles concern her personal conduct, not her goods or business. In any event, any statements by the defendants or any of them which could otherwise be found to have amounted to an injurious falsehood would, if made in the course of court proceedings, be protected by witness immunity.[92]

167 On the basis of the above reasons, the only allegations made by Ms Giles in the amended statement of claim which could found a viable cause of action, and would not be precluded by any lack of standing, witness immunity, advocates immunity, estoppel, or the various species of abuse of process, are possible claims with respect to the conduct of the quarry defendants at community meetings and in other public places, and statements said to have been made by the quarry defendants outside the context of the defamation proceeding. It may well be that Ms Giles, at least theoretically, may be able to bring an action for intentional infliction of mental harm and/or defamation with respect to that conduct and/or those statements. The question remains whether this Court should permit her to do so in this proceeding. On balance, I think not.

168 In the amended statement of claim, Ms Giles makes numerous and wide ranging claims about the conduct of the defendants. The allegations regarding the conduct of the quarry defendants outside the litigation context are relatively minor in the scheme of things, and are summarised in the table below.

Abuse of Process and/or attempting to pervert the course of justice

Jeffrey, Curnow and Casacir, with the later assistance of Southall, by their conduct at, or in relation to, community meetings caused Giles to feel threatened, intimidated, embarrassed, defamed, repudiated, belittled, ashamed and humiliated ... (note, this paragraph refers to 'minutes of 12 July 2013).

Jeffrey, Curnow, Casacir and Smith, threatened Giles over the water issues, and against taking further action to make Jeffrey, Giles over the water issues, and against taking further action to make Jeffrey, Curnow and Casacir comply with legislation, their permit and work authority and with their own undertakings ...

Jeffrey made Giles feel intimidated and threatened by blocking public roads (including the road upon which Giles lived), following her around on the public roads and taking photographs (including when others were with her ) ...

Jeffrey, Curnow and Casacir's employees threatened Giles over the radio ...

Damage to Giles by way of obstructing justice through aggravating the damage.

(d) the defendants have lied to Giles and to others lied about Giles.

(e) the defendants have defamed, bullied and intimidated Giles.

The damage and personal injury to Giles' reputation

Without any evidence, and against the true facts, their intention conduct has caused Giles to suffer injury to credit and reputation by:

(q) now falsely being known as a mad woman: this fraudulent allegation by Jeffrey, Curnow and Casacir is available through the Government department previously known as the Department of Primary Industry and personally from Anne Bignell or through FOI.

(23) now falsely being known as a person who did not accept VCAT or court judgments and outcomes and who just kept on complaining: this fraudulent allegation is available in court documents and transcripts, as well as in minutes of community meetings.

169 As indicated earlier in these reasons, the amended statement of claim does not specify when events referred to in the above table occurred, save for there being a reference to minutes of a meeting in July 2013. However, I can infer from the chronology of events that, to the extent that any statements made by the quarry defendants are said to have been defamatory, any claim by Ms Giles for defamation would be hopelessly out of time. Section 5(1AAA) of the LAA provides that an action for defamation must be brought within one year of the date of the publication of the allegedly defamatory matter. Section 23B of the LAA enables a person to apply to extend the period of limitation for up to three years, but the authorities make it clear that the hurdle for a party seeking an extension of time under s 23B of the LAA is set high.[93] Even on the evidence before me, I can conclude that such an application would have very limited prospects of success, even if the relevant conduct fell within the three year time frame referred to in s 23B of the LAA, that is, after 19 September 2015.

170 I suspect that any claim by Ms Giles to the effect that some or all of the conduct referred to in the above table amounted to conduct which rendered the quarry defendants, or any of them, liable for the tort of intentional infliction of mental harm would also be statute barred. I cannot, however, on the current state of the pleading, be entirely certain of that, as Ms Giles makes no reference to when she suffered any psychiatric disorder, or when Ms Giles discovered that she suffered from any psychiatric disorder. However, given the manner in which Ms Giles has put her claims in the amended statement of claim, it would be very difficult, forensically, to disentangle the impact of the conduct referred to in the table above from the impact upon her of the totality of the conduct referred to in the amended statement of claim.

171 It is clear from the amended statement of claim that to the extent that Ms Giles considers that she has suffered personal injury and financial loss, it has been caused by the opening and operation of the quarry, her lack of success in the VCAT proceedings to prevent the opening of the quarry and/or to restrict the operations of the quarry, her inability to successfully defend the defamation proceeding, and the financial, health and lifestyle consequences of the outcome of the litigation between her and the quarry defendants. However, for the reasons above, various legal principles and immunities, largely founded on the overarching principle that the public interest in the administration of justice requires that there be finality in litigation, preclude Ms Giles from bringing claims concerning the initiation and conduct of that litigation. To dismiss the preponderance of the claims in the amended statement of claim, while allowing Ms Giles to now turn around and say that her loss and damage was in fact caused by the conduct referred to in the above table, would be unjustifiably oppressive to the defendants.

172 The time that has been taken to deliver these reasons and the length of these reasons may indicate to some that the number of allegations and causes of actions referred to in the statement of claim means that this proceeding is not amenable to summary disposition. However, simply because the question of whether any proceeding, or any claims in a proceeding has no real prospect of success requires some detailed analysis of the factual matrix, the subject matter and conduct of other proceedings, and the relevant authorities, a finding that the proceeding has no real prospect of success is not precluded. Such an approach is consistent with the overarching purpose of the CPA.

173 Accordingly, I will dismiss the proceeding, on the basis that Ms Giles' claims have no real prospects of success. For completeness, for all of the foregoing reasons, this is not the occasion for the exercise of the Court's discretion under s 64 of the CPA.

[1] For ease of reading, the reference to 'quarry defendants' may be a reference to Messrs Jeffrey and Curnow, not including Casacir, depending upon the context. The distinction is not material for the purposes of the current applications.

[2] [2016] VSCA 314.

[4] [2013] VSC 22.

[6] 'Obstruction of justice' is not a term known to Australian law, but has been the subject of a great deal of media attention in recent times, particularly concerning events in the United States.

[7] The paragraph references in these reasons refer to the 'clean copy' of the Amended Statement of Claim provided to the Court.

[8] I assume, but cannot be certain, that the reference to 'her land' is a reference to the property.

[9] [2013] VSCA 158; [2013] 42 VR 27.

[12] Port of Melbourne Authority v Anshun [1981] HCA 45; (1981) 147 CLR 589, ('Anshun').

[13] [2016] VSCA 314 [161].

[14] [1992] HCA 34; (1992) 174 CLR 509.

[16] [2013] VSCA 337; (2013) 41 VR 302.

[17] [2010] VSCA 30.

[18] [1994] HCA 42; (1994) 181 CLR 251.

[20] [2019] VSC 577.

[22] [2010] NSWCA 33; (2010) 75 NSWLR 245.

[24] [2015] VSCA 140; (2015) 49 VR 131.

[25] [1994] HCA 42; (1994) 181 CLR 251.

[27] [1981] UKHL 13; [1982] AC 529.

[29] [2016] VSC 78.

[31] See also Sheehan v Brett Young & ors (No 3) [2016] VSC 39; (2016) 50 VR 467 [69], where John Dixon J held that a claim for malicious prosecution was 'personal' to the bankrupt plaintiff.

[32] See, for example, s 27 of the Defamation Act 2005 (Vic).

[33] [2008] VSCA 236; (2008) 24 VR 1, see also Neave JA at [471].

[34] This has been described as the 'Wilkinson v Downton principle', after the decision in Wilkinson v Downton [1897] 2 QB 57, which has been followed by Australian courts on a number of occasions.

[35] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317, 329 per Gleeson J.

[36] See Emanuele v Hedley (1998) 179 FCR 290 [44]; Leerdam v Noori [2009] NSWCA 90; (2009) 255 ALR 553 [65]; Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146; (2014) 86 NSWLR 481 [59].

[37] [2016] VSC 2 [42]-[48], and [2016] VSCA 314 [163]-[176].

[38] [1981] HCA 45; (1981) 147 CLR 589.

[39] Mandie v Memart Nominees Pty Ltd [2016] VSCA 4 [43].

[40] [1981] HCA 45; (1981) 147 CLR 589.

[41] [2013] VSC 268 [38].

[42] [1981] HCA 45; (1981) 147 CLR 589.

[43] [2016] VSCA 314 [137]-[140].

[45] [1897] 2 QB 57. See also Magill v Magill [2006] HCA 51; (2006) 226 CLR 551 [20].

[46] Sappiden C and Vines P (eds) 'Flemings - The Law of Torts' (10th Ed, 2011, Lawbook Co) p [2-100].

[47] See Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317; Giller v Procopets (No 2) [2008] VSCA 236; (2008) 24 VR 1.

[48] [2018] VSCA 174.

[49] [2007] NSWCA 370; (2007) 70 NSWLR 268.

[53] [2016] HCA 16.

[54] (1988) 165 CLR 543.

[55] [2005] HCA 12; (2005) 223 CLR 1.

[56] [2016] HCA 16 [5].

[58] [2017] HCA 13; (2017) 259 CLR 275.

[59] [2005] HCA 12; (2005) 223 CLR 1.

[61] [2016] HCA 16.

[62] [2017] HCA 13; (2017) 259 CLR 275.

[63] [2014] VSCA 351.

[65] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529.

[66] [2013] VSC 268 [58].

[67] Maxwell-Smith v S & E Hall Pty Ltd [2014] NSWCA 146; (2014) 86 NSWLR 481 [54].

[68] [2016] VSC 2 [20]-[25].

[69] [2016] VSCA 314.

[72] Jeffrey v Giles [2018] FCCA 2073.

[73] [2007] HCA 10; (2007) 230 CLR 500.

[75] See Perera v Genworth Financial Mortgage Insurance Pty Limited [2019] NSWCA 10 [7], where Basten JA noted without comment the primary judge's observation that it would be inappropriate to grant summary judgment on the sole basis that the relevant proceeding was a civil proceeding.

[76] [2016] UKSC 43; [2016] 3 WLR 477.

[77] See [2016] VSC 2 [47] and [2016] VSCA 314 [71].

[78] [2018] VSCA 174.

[80] [1940] HCA 41; (1940) 64 CLR 130.

[81] [2005] HCA 12; (2005) 223 CLR 1.

[82] [1940] HCA 41; (1940) 64 CLR 130.

[86] [2005] HCA 12; (2005) 223 CLR 1.

[91] Palmer Bruyn & Parker Pty Ltd v Parsons [2001] HCA 69; (2001) 208 CLR 388.

[92] Hamod v State of New South Wales (No 12) [2009] NSWSC 242 [210].

[93] Section 23B of the LAA provides that the court must grant an extension of time 'if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year of the date of publication.' In Brott v FGD Pty Ltd & ors [2018] VSC 182, I referred to the decision of Beach J in Casley v Australian Broadcasting Corporation [2013] VSC 251, and stated (at [13]) as follows:

... while the type of circumstances which might be taken into account in these applications is not limited, the language of s 23B of the [LAA] means that those circumstances must be quite compelling for the Court to achieve the necessary degree of satisfaction before an extension of time is to be granted.