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Iloski v State of Victoria [2023] VSC 321 (8 June 2023)

Last Updated: 14 June 2023

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

S ECI 2022 01343

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PRACTICE AND PROCEDURE – Mandatory orders – Tort claims - Order sought for the Bank to cause the first plaintiff to regain custody and control of goods removed by mortgagee when taking possession of a property – Mortgagee not a party and no claim made against it in the proceeding – Power to make orders for the custody and preservation of property– Application refused - Supreme Court (General Civil Procedure) Rules 2015 r 37.

INJUNCTIONS - Order sought restraining Victoria Police from repeating certain conduct – Application refused.

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HIS HONOUR:

1 Before the Court is a summons issued by Mr Robert Iloski, who is one of the two plaintiffs. The other plaintiff is his brother, Mr Daniel Iloski. The summons is issued to the defendant, the State of Victoria. The summons is also issued to the Commonwealth Bank of Australia, although it is not a party to the proceeding.
2 The summons seeks first, an order commanding the proper officer of the Commonwealth Bank to immediately do all, every and anything necessary to cause the first plaintiff, Mr Robert Iloski, to regain custody and control of all his goods and effects removed from him on 17, 18 and 19 September 2019 from a property in Thomastown.
3 Paragraph 2 seeks an order that ‘the person having conduct for the defendant’, the State of Victoria, be required to cause the Chief Commissioner of Victoria Police to instruct his members not to repeat the events of 17-19 September 2019 by obstructing or causing an obstruction to any person complying with paragraph 1 of the orders sought.
4 Paragraph 3 of the summons seeks any such or further order that the Court considers to be appropriate and necessary in the circumstances, so long as it does not negatively affect the first plaintiff or the coming into effect of paragraph 1 of the orders sought.
5 The summons is issued in a proceeding in which Mr Robert Iloski sues the State of Victoria for torts alleged to have been committed by Victoria Police officers at the Thomastown property on or following the events of 17-19 September 2019, 17 July 2020 and 1 December 2021. The police were involved in the Commonwealth Bank’s action in taking possession of the property and in subsequent events. The second plaintiff, Daniel Iloski, sues the State of Victoria for a number of the torts that the first plaintiff sues on.
6 An initial issue to be decided is the Commonwealth Bank’s objections to parts of two of Mr Robert Iloski's affidavits dated 14 and 15 March 2023. I consider that the Bank’s objections to the affidavit of 14 March were established and that paragraphs 27-29, 31-34, 46, 50-52 and 54-55 should be excluded on the basis that they contain conclusions, irrelevancies or comments.
7 The Commonwealth Bank also objected to paragraphs 3, 7–8 and 10 of Mr Robert Iloski’s affidavit of 15 March, filed on 23 March. In paragraphs 3 and 7-8, Mr Robert Iloski stated that a representative of the Commonwealth Bank made certain statements about its decisions and actions, and those of the Sheriff and Victoria Police, in taking possession of the Thomastown property, when giving evidence at the Magistrates’ Court in Heidelberg on 15 March 2023. I take into account that Mr Robert Iloski is a self-represented litigant. It is possible that those paragraphs give some relevant background to the case he seeks to make, and therefore I overrule the objection and allow them to remain in evidence. My ruling does not mean that the Court finds that the Bank’s representative said what Mr Iloski states in those paragraphs. Usually, evidence previously given in another proceeding is proved by tendering a transcript of that evidence. But, I will take these paragraphs as background, and no more, and overrule the Commonwealth Bank’s objections to them. However, I uphold the Bank’s objection to paragraph 10 of the affidavit. I exclude all the words commencing from ‘- and the reason why we have suffered’ to the end of paragraph 10, as they contain comment and conclusions, rather than evidence.
8 The summons arises from the Commonwealth Bank, as mortgagee, taking possession of the Thomastown property and causing the removal of goods located in it. The removal of the goods and their subsequent storage in a storage facility, arranged by the Commonwealth Bank, has understandably caused the plaintiffs hardship because many of the goods seem to be personal items. Anyone in the plaintiffs’ position would suffer, at the lowest, inconvenience, and, at the highest, considerable hardship, if they were placed in those circumstances.
9 But, I have to decide the summons in accordance with law. As I have said, the goods have been stored at the direction of the Commonwealth Bank, and the costs of storage are increasing. The Bank says that it needs the authority of the registered proprietors of the property, and evidence of the first plaintiff’s entitlement to the goods, to release them to him. At the time that it took possession of the property, the registered proprietors were the plaintiffs’ mother and Mr Robert Iloski’s sister-in-law.
10 The Commonwealth Bank now claims the costs of removal of the goods and their storage under the security of a lien, which it says results from it being an involuntary bailee of the goods.
11 A previous summons issued in the County Court by Mr Robert Iloski for the return of the goods was dismissed. It appears this was because the Court considered that it required evidence that the registered proprietors of the property had no interest in the goods, and no such evidence had been provided.
12 Mr Robert Iloski relied on paragraph 3 of the summons and the words ‘any such or further order’ to overcome the fact that the Commonwealth Bank was not a party to the proceeding. He suggested that the Court could join the Bank as a party. But I do not consider that such an order can be made under paragraph 3 of the summons when no claim has been made against the Bank in the plaintiffs’ revised amended statement of claim.
13 The first plaintiff also relied on r 37 of the Supreme Court (General Civil Procedure) Rules 2015, which provides that in any proceeding the Court may make an order for the inspection, detention, custody or preservation of any property, whether or not it is in the possession, custody or power of a party. Rule 37 is particularly directed at the preservation of property, and there is no evidence here of a risk to the goods that are in storage.^[1] The plaintiffs have not pleaded a claim against the Bank which would justify an order being made that it deliver the goods to both or either of them. In most circumstances, an applicant for an order under r 37 must identify a legal or equitable right which provides the foundation for an order of preservation or other order under that rule.^[2] The plaintiffs have not done that in their revised amended statement of claim.
14 What is more, the Commonwealth Bank now claims that it has a lien or a security over the goods that are in storage, although no submissions of substance were put about that security.
15 In all the circumstances, Mr Robert Iloski has not established his entitlement to the orders sought in paragraph 1.
16 The second paragraph of the summons seeks orders that the person ‘having conduct for the defendant’ be required to cause the Chief Commissioner of Victoria Police to issue the instructions I have mentioned. This proposed order cannot be made because there is no basis for this Court to order or direct the ways in which Victoria Police should carry out its duty.^[3] The Court's role is generally limited to circumstances where police action has been taken or threatened, and a plaintiff brings a claim contending that actions already taken were unlawful. There is no evidence that officers of Victoria Police are proposing to repeat any actions that were previously alleged to have been engaged in. In those circumstances, there is no basis for making the order sought in paragraph 2.
17 So far as paragraph 3 is concerned, that paragraph might provide a basis for making orders against the Commonwealth Bank, if the plaintiffs had pleaded a claim against it and succeeded in that claim or a substantial part of it. But, that is not the case here.
18 This dispute has been ongoing for some time. I have heard the Iloskis’ and the Commonwealth Bank’s positions. In most disputes, compromise on both sides is required to achieve a resolution. All I can do is suggest that in accordance with their obligations under the Civil Procedure Act 2010, the parties give serious consideration to whether they can reach a compromise that resolves the dispute. Such a compromise would appear to require agreement to the terms of the authority that the Commonwealth Bank requires before it will release the goods to the plaintiffs and who should be required to give that authority.
19 I dismiss Mr Robert Iloski’s summons filed 3 October 2022.

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^[1] Pizzey Properties Pty Ltd v Edelstein [1970] VicRp 22; [1970] VR 161, 162.

^[2] Greenberger v State of Victoria [2008] VSC 357, [12] and [14]; Chen v Blockchain Global Ltd [2022] VSC 92, [30].

^[3] Enever v The King [1906] HCA 3; (1906) 3 CLR 969, 977; Siddique v Martin (No 2) [2016] VSCA 310, [21].