Akram Karam v Aloe and Co Pty Ltd

[2016] VSCA 123

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0055

AKRAM KARAM	Applicant
v
ALOE & CO PTY LTD	Respondent

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JUDGES:	BEACH and KYROU JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	27 May 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 123

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PRACTICE AND PROCEDURE – Application for extension of time within which to seek leave to appeal against an order of a judge dismissing an appeal from an associate judge – Unrepresented litigant – Associate judge plainly correct – Judge plainly correct – Proposed appeal manifestly hopeless – No prospects of success – Extension of time futile – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances
For the Respondent

BEACH JA

KYROU JA:

Introduction

1. This is an application for an extension of time within which to file an application for leave to appeal against an order made on 19 February 2016, by a judge of the Trial Division (Cavanough J).  The order was made in the Practice Court.  After hearing argument, the judge dismissed the applicant’s appeal against an order that had been made, on 4 December 2015, by the associate judge who is the Costs Judge[1] (Wood AsJ).

   [1]Supreme Court Act 1986, s 17E.

1. While the applicant has filed material in support of his application, and the respondent has filed material in opposition to the application, neither side has seen fit to provide copies of the orders or reasons for judgment given below;  nor has any side descended in their material to providing a description of what the matter is about or precisely what was ordered by the Associate Judge that has provoked the present application.  That said, a useful overview of the background circumstances that have spawned the present application can be found in the recent judgment of J Forrest J in Karam v Palmone Shoes Pty Ltd (No 3).[2]

   [2][2016] VSC 228. Further background material may also be found in the following decisions: Karam v Palmone Shoes Pty Ltd [2010] VSC 3, [2010] VSC 82, [2010] VSCA 252, [2010] VSCA 253, [2011] HCASL 6, [2011] VSCA 144, [2011] HCASL 142, [2012] VSCA 97, [2012] HCASL 148, [2014] VSCA 148, [2014] VSC 378, [2014] HCASL 204, [2015] VSC 433; Karam v Lennon Mazzeo [2011] VSC 507, [2012] VSCA 98; Karam v Aloe & Co Pty Ltd [2012] VSC 609, [2014] HCASL 44; Karam v Toop [2014] VSC 104.

The decision of the Associate Judge

1. Following receipt of the parties’ material, the Court obtained a copy of the associate judge’s reasons for decision of 4 December 2015.[3]  The reasons disclose the following chronology:

   [3]Aloe & Co Pty Ltd v Karam (Unreported, Supreme Court of Victoria, 4 December 2015, Wood AsJ) (‘Reasons’).

1.On 23 February 2010, T Forrest J made a costs order, in the respondent’s favour, against the applicant.

2.        On 17 September 2014, the respondent filed a Summons for Taxation in relation to the costs ordered in its favour by T Forrest J.

3.        On 21 January 2015, PRD Legal came onto the record as acting for the applicant.

4.        On 19 February 2015, PRD Legal filed a notice of objection to the respondent’s costs.  An amended notice of objection was filed by PRD Legal on 6 July 2015.

5.        On 14 July 2015, the taxation came on for hearing before a Costs Registrar.  The applicant was represented, and the matter resolved with a consent order being made against him in the sum of $143,392.47, with the respondent to pay the applicant’s costs to PRD Legal in the sum of $3,500.

6.        On 12 August 2015, the respondent (who by then was, again, unrepresented) filed a Notice of Review in relation to the consent order made on 14 July.  In an affidavit sworn 13 October 2015, the applicant conceded that PRD Legal were acting for him at the time the consent order was made.  However, the applicant deposed that he did not consent to the order that was made on 14 July.

1. The applicant’s Notice of Review came on for hearing before the associate judge on 26 November 2015.  After hearing argument, the associate judge reserved his decision.  The associate judge’s decision was, as we have said, delivered on 4 December 2015. 

1. In his reasons for decision, the associate judge noted that there was no taxation of costs that was capable of being reviewed.[4]  Plainly, this was because there had in fact been no taxation: the parties having settled their dispute.  His Honour said that, properly characterised, the applicant’s case was in fact an application to set aside the order made by consent: an order consented to on the applicant’s behalf by his then legal representatives.[5]

   [4]Reasons [6].

   [5]Ibid [7].

1. In careful and detailed reasons, the associate judge explained why the applicant’s Notice of Review had to be dismissed.  It is not necessary to set out those reasons here.  It is sufficient to note that the associate judge dismissed the applicant’s application to review the so-called taxation of the respondent’s bill of costs, because there never was any taxation: the dispute as to costs having been settled, and a consent order having been made.  Moreover, we note that at no stage has the applicant sought to articulate (much less demonstrate) any basis upon which the consent order made on 14 July 2015 might be set aside.

1. With respect, the associate judge’s reasons were plainly correct.  As the associate judge said:

If the [applicant] can establish that the matter was settled without his authority and that the costs would have taxed at less than $143,392.47 then he may have options in separate proceedings against his former representatives.[6]

[6]Ibid [18].

The decision of the Judge

1. As we have said, the judge heard the applicant’s appeal from the associate judge, in the Practice Court, on 19 February 2016.  The judge did not publish written reasons.  However, in ‘Other Matters’ of the authenticated order made by the judge, the following appears:

The decision under appeal is plainly correct for the reasons given by the Honourable Associate Justice Wood in writing on 4 December 2015.

1. Clearly, and again with respect, the judge’s order, like the associate judge’s order, was plainly correct.  Moreover, the judge was equally correct to adopt, as his own reasons, the patently correct reasons of the associate judge.

Conclusion

1. While the material filed by both parties is largely (if not wholly) unhelpful in the resolution of the present application, the applicant’s material, at least, contains an explanation for the applicant’s failure to file an application for leave to appeal within time.  For present purposes, the applicant’s explanation set out in his material may be accepted.

1. However, the problem for the applicant is that his proposed appeal is totally devoid of merit.  It has no prospects of success.  There was no taxation to be reviewed.  The applicant’s reliance upon rules of court that permit, or authorise, a review of a taxation that has actually been held is misconceived.  There is no possible basis to doubt the correctness of either of the decisions below.  Any application for leave to appeal must be refused.  In the circumstances, it would be futile to grant the extension of time sought by the applicant.

1. The application for an extension of time will be refused.

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