Anastasios Bellos and 3 Ors v Australian Mutual Provident Society

[2001] NSWCA 217

CITATION:	Anastasios Bellos and 3 Ors v Australian Mutual Provident Society [2001] NSWCA 217
FILE NUMBER(S):	CA 40458/00
HEARING DATE(S):	27 June 2001
JUDGMENT DATE:	27 June 2001
PARTIES :	Anastasios Bellos - 1st Appellant Vasilke Bellos - 2nd Appellant Kevin Bellos - 3rd Appellant Christie Bellos - 4th Appellant Australian Mutual Provident Society - Respondent
JUDGMENT OF:	Meagher JA at 41; Beazley JA at 42; Stein JA at 1

LOWER COURT JURISDICTION :	Supreme Court
LOWER COURT FILE NUMBER(S) :	SC 21103/96
LOWER COURT JUDICIAL OFFICER :	Simpson J

COUNSEL:	Appellants - In person Respondent - A Black
SOLICITORS:	Appellants - In person Respondent - Mallesons Stephen Jacques
CATCHWORDS:	PROCEDURE - conduct of jury trial - empanelling of jury - inadequate number of persons in panel - whether an irregularity which leads to nullity of jury verdict - PROCEDURE - jury trial - whether jurors so ill as to be unable to continue and do duty as jurors - ND
LEGISLATION CITED:	Evidence Act 1995
CASES CITED:	Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749 Sutherland v Zalakos (unreported, NSWCA, 8 October 1996)
DECISION:	Appeal dismissed with costs

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40458/00


MEAGHER JA
STEIN JA
BEAZLEY JA

Wednesday, 27 June 2001

Anastasios BELLOS, Vasilke BELLOS, Kevin BELLOS and Christie BELLOS v AUSTRALIAN MUTUAL PROVIDENT SOCIETY
JUDGMENT

1    STEIN JA: This is an appeal by four appellants from a verdict delivered by a jury. The first appellant is Mr Anastasios Bellos and he has conducted the appeal on his own behalf, indeed he did so in the Supreme Court before Simpson J and a jury of four. The other appellants are as follows. The second appellant is Vasilke Bellos, Mr Bellos’ wife, and third and fourth appellants are Kevin Bellos and Christie Bellos, the son and daughter of the first appellant. Each of the other appellants, that is the second, third and fourth, have adopted the submissions made by the first appellant on the appeal.

2    The verdict of the jury which is challenged was given on 1 June 2000 at the conclusion of a trial which took approximately 20 days. The appellants had sued the respondent, the Australian Mutual Providence Society (the AMP) on several causes of action. Each of them sued the respondent for damages for negligence in respect of personal injury, property damage and certain financial losses they claimed. Each of them sued the respondent for the same damages, for fraud or deceit, for misleading or deceptive conduct and in relation to claimed unconscionable conduct by the respondent.

3    I should provide a little background to the litigation. Apparently in July 1995 the first and second appellants leased premises from the respondent in Goldfields House at Circular Quay. The lease commenced on 26 July 1995. The respondent wrote to the first appellant shortly thereafter, I think on 28 July 1995, indicating that some traces of asbestos had been found in mortar between the bricks and in the concrete render of the premises.

4    The appellant opened a model ship museum in the leased premises on 9 December 1995. The museum was closed on or about 20 December of that year. On 21 December, that is the next day, solicitors then acting for the first and perhaps the second appellant, G H Healy & Co, wrote to the respondent’s solicitor stating that the first appellant had found some asbestos at the premises. The claim was denied by the respondent on the following day. Early in the new year, on 10 January 1996, there was apparently a report prepared by consultants which indicated that no asbestos fibres were released into the atmosphere during fit-out works conducted on the premises by the first and second appellants.

5    There had previously been issued in 1993 an asbestos safe certificate by WorkCover in relation to Goldfields House. On 12 March 1996 WorkCover, having taken some dust samples from the premises, indicated that it was unable to detect any asbestos particles in the samples. In the same month, March 1996, WorkCover confirmed the asbestos safe certificate that it had issued in November 1993 as remaining a valid certificate.

6    The tenants’ property had remained on the premises after the model ship museum was closed in December 1995. On 10 April 1996 the respondent gave notice to the first and second appellant of the removal of the tenants’ property. Thereafter, in January 1997, the chattels were removed by the respondent and on 1 April 1998 the collection of model ships and other property was auctioned.

7    In relation to the auction there were proceedings in the Supreme Court, initially brought by the respondent, before Dowd J and decided by him on 24 June 1997. The first and second appellants appealed from that decision and the Court of Appeal dismissed the appeal for reasons given by the Court on 20 October 1999.

8    In relation to the subject proceedings, a statement of claim was originally issued on 18 September 1996 and was amended on 28 November 1997, including the claims which I have referred to earlier. The matter was originally listed for hearing before Simpson J and a jury on 2 May 2000 and, on the following day, the first jury was empanelled and the hearing proceeded. Unfortunately on 5 May it appears that the first appellant mentioned in open court that an offer of settlement had been made by the AMP and this led to the jury being discharged. A second jury was empanelled on 8 May 2000 but apparently one member became quite ill. The matter was adjourned to the following day, 9 May, but on that day it was clear that the juror was still ill. Accordingly, on 10 May her Honour discharged that jury. A further jury was empanelled on that day and this is the jury which on 1 June 2000 gave verdicts for the defendant on each of the appellants’ claims.

9    Mr Bellos has conducted the appeal as best he can but clearly is at a disadvantage. He, it seems to me, misunderstands some of the necessary court processes and procedures and, for example, has made a number of claims which his only substantiation is statements made from the bar table without the benefit of evidence. There is no doubt that he feels, on behalf of himself and the members of his family, a genuine grievance against the respondent. That much must be accepted.

10    However, one of the problems that the Court has is in understanding what the case of the appellants is on this appeal. In this situation it seems best for the Court to refer to the 14 grounds of appeal that form the Notice of Appeal filed and to examine those grounds. Also, the Court has the written submissions of the appellants in support of those grounds. I should mention, however, that on occasions the written submissions appear to raise additional matters than contained in the Notice of Appeal. I will attempt to examine those issues also. Further, I take account of the oral submissions made by the first appellant to the Court. I should mention also that the submissions made by the first appellant have been accepted and supported by the remaining appellants.

11    The first ground of appeal concerns the empanelling of the subject jury. It appears that the panel consisted of eight persons which was an inadequate number. Bearing in mind the number of parties, it seems that a panel of 14 was required. The empanelling of the jury took place in circumstances where two previous juries had been lost. The first because of a statement made by the first appellant in Court which led to the discharge, and the second because of a sick juror. It is important to look to what actually occurred when the subject jury was empanelled.

12    The transcript of 10 May 2000 at p 1 indicates that her Honour said:

The position is that we have a panel of eight potential jurors. Mr Bellos the only way the matter could proceed today would be if the plaintiffs were prepared to forego some of their rights of challenge, instead of having eight you would have two. I don’t want you to think I am suggesting you should do that but it is the only possible way this matter can go on today or this week.

13    Mr Bellos, according to the transcript, responded to her Honour’s statement as follows:

‘That is acceptable by the plaintiffs.’

14    Apparently counsel appearing for the defendant at the trial had nothing to say on the issue. Subsequently the jury was empanelled. It is not clear whether any members of the panel were challenged. This does not appear from a reading of the transcript. One might assume that there were no challenges although the first appellant has indicated to the Court that he made two challenges.

15    I should record that from the bar table the first appellant has said that the transcript is inaccurate and that he did not indicate to the trial Judge that the empanelment with a panel of eight was acceptable to him. However, in the absence of evidence, and there is none, we can do no more than accept the transcript at face value.

16    In any event, if there was an irregularity, and I do not see that there was, the irregularity was such that would not lead to a nullity of the jury verdict in all of the circumstances. See for example Morosi v Mirror Newspapers (1977) 2 NSWLR 749 at 762 and also Sutherland v Zalakos (Unreported, NSWCA, 8 October 1996, per Mahoney P). In my view, there is no merit in ground one of the Notice of Appeal.

17    The second ground of appeal claims that during the hearing two of the jurors were seriously ill and failed to withdraw from the proceedings. Again, we have no evidence in relation to this matter other than is found in the transcript of the trial. The only references appear at p 651 of Black AB 4 on 22 May 2000 where it is indicated that one member of the jury made known to the Judge that his (or her) nose was bleeding. The Judge then said to the jury that there was a matter that needed to be discussed in their absence and that they should return to the jury room. At p 656 of the same appeal book her Honour said, ‘I understand the juror who was ill’ (no doubt a reference to the person who indicated that his or her nose was bleeding) ‘has recovered sufficiently to go on’. That remark was made on the same day and within a relatively short time after the juror had indicated the nose bleed.

18    It also appears, at p 68 of the supplementary Red AB, that during the course of her Honour’s summing-up on 31 May 2000, she indicated in the absence of the jury that she had been told at 2pm that one of the jurors had taken some medication and that it was possible that she would not be well. In the circumstances she said that it might be better to break for the day. Shortly thereafter this occurred. The matter was adjourned part heard until 1 June 2000 and ultimately on that day the jury was sent out to consider their verdict.

19    That is the only evidence there is on the issue raised in the Notice of Appeal. It does not provide evidence that two of the jurors, or less, were so ill as to not be able to continue and to perform their duty as jurors. In my view, this ground of appeal should be rejected.

20    Ground three concerns an allegation that the defendant’s solicitors took the plaintiffs’ exhibits home overnight to make copies for the jury, without the plaintiffs’ authority. There is some material in the transcript which bears on this matter. It is to be found at Black AB 1 at p 172 on 5 May 2000.

21    Her Honour (at p 171) in an effort to move things along more quickly, asked whether there was any reason why the defendant could not prepare some bundles of correspondence which could be provided for the jury. The reason for this was obvious, it was to expedite matters. This was the third jury, the case was going to take some time and it would be, no doubt, useful for the jury to have all of the relevant exhibits and documents in a bundle together. It would be convenient for her Honour and for the parties, including the appellants. Counsel for the defendant agreed to do what her Honour suggested.

22    Her Honour said this to the appellants, ‘Mr McIntyre has offered to prepare four bundles of copies of the documents that you tendered’. The transcript notes that Mr Bellos said, ‘Yes’. Her Honour continued, ‘For the jury so they can read them and save some time that day. This is on the assumption that you want the bundle of documents to be put before them, do you understand?’ Mr Bellos responded, according to the transcript, ‘Yes I understand that’. Her Honour said further down that same page (172), ‘If you agree to it, every member of the jury will have a copy so they can follow you’. Mr Bellos is recorded as saying, ‘Yes, I understand’.

23    It was necessary, so that copies could be made up into the bundles, for the documents to be removed from the Courtroom. Clearly it was done with the understanding and approval of the appellants. There is nothing in this ground of appeal which I reject.

24    The fourth ground alleges that there were ‘signals’ between the Judge and defendant’s counsel and also between defendant’s counsel and his witnesses, on a number of occasions. I should say at once that there is no evidence, other than that contained within the transcript, in relation to the allegations of signals. The only references relevant to this ground that I can find one on 17 May and 24 May 2000 whilst the first appellant was examining two witnesses called by the respondent. The first appellant indicated to the witness not to look at defendant’s counsel when he was questioning.

25    There is no evidence before the Court of any signals between the Judge and the defendant’s counsel or vice versa, and there is no evidence of any signals by defendant’s counsel to any of his witnesses or to any other witness. This ground of appeal must also fail.

26    The fifth ground claims that during certain adjournments of the trial, defendant’s counsel was seen to discuss with court reporters amendments that he required to be made to the transcript. It is assumed that the ground would then go on to suggest that amendments were made to the transcript, which were impermissible, at the behest of the defendant. There is absolutely no evidence produced to the Court by the appellants that would support this ground of appeal.

27    Ground six concerns an allegation that her Honour did not correctly interpret part of the judgment of Dowd J in relation to the goods of the appellants which I referred to earlier. As I mentioned, the proceedings before Dowd J involved the Court authorising the sale at auction of goods of the appellants. The case before Simpson J and the jury involved her Honour ruling that the appellants could not raise issues already determined by Dowd J. Her Honour was obviously correct to do so.

28    Ground seven alleges that her Honour insisted that the third and fourth appellants give evidence in the absence of the jury. What I understand the first appellant to be submitting in relation to this ground is that he was not permitted to have the evidence of his son and daughter placed before the jury and that what occurred was that their evidence was taken in the absence of the jury, on a voir dire, to determine whether or not it was admissible to be called before the jury. The situation arose in this way, the appellants called all the admissible evidence that they wanted to and closed their case. The defendant then called its evidence. The appellants then sought to call evidence in reply, that is the evidence of the third and fourth appellant. This was objected to by the defendant and, in the absence of the jury, their evidence was given so her Honour could rule on admissibility. On 24 May 2000 her Honour ruled their evidence to be inadmissible.

29    It appears that on 16 May 2000 the first appellant told her Honour (this is to be found in Vol 2 of the Black AB 304) that the only person he had to call was a Mrs Aphrodite Daskalakis and that she would be available the following day. Her Honour said to Mr Bellos, ‘Is she the last of your witnesses?’ Mr Bellos answered, ‘Yes’. In that circumstance, it is hardly surprising that her Honour ruled the evidence sought to be called from the third and fourth appellants inadmissible by way of the appellants’ case in reply.

30    I move to the next ground, no. eight, in the Notice of Appeal. This suggests that the Judge would not allow the appellants to mention any fitting out costs in relation to aspects of the damages they claimed. I am unable to find in the lengthy transcripts of the trial any ruling by her Honour which specifically refused to permit the appellants to place proper evidence before the jury in relation to this issue. However, it is clear from Black AB 5 1085 - 1086 that the respondent specifically admitted certain fit-out costs. This occurred on 31 May 2000 and was therefore before the jury.

31    Ground nine is a ground which, in its form, is embarrassing in the legal sense of the word. It alleges perjury, forgery and lies (to use the words in the ground) by all of the respondent’s witnesses. The plain fact of the matter is that the verdicts that the jury delivered are indicative that the respondent’s witnesses were accepted and it is a virtual impossibility in the circumstances for the appellants to be able to challenge in this manner.

32    Ground 10 concerns the alleged presence of a security guard or security guards in the Courtroom when the verdict was handed down or shortly before the verdict was handed down. If it be the case, it is quite irrelevant and does not constitute a proper ground of appeal.

33    Ground 11 makes a general allegation that her Honour and defendant’s counsel had breached the law in many ways. Most of the matters traversed have already been dealt with, but insofar as this ground raises matters not already covered I will deal with it briefly. Apparently particulars were provided by the appellants of the matters that were to be included in this ground. The only particular that seems to be in addition to grounds already included in the Notice of Appeal is particular D. Reference to it is to be found in various points in the transcripts of 18, 19, 22 and 30 May 2000 where Mr Bellos made certain allegations in front of the jury. There was no evidence to support the allegations, which were denied in evidence given by a Ms Joyce Bainy on 22 May 2000. Again, it was a matter for the jury and they clearly rejected the allegation made by the first appellant which, as I have said, was unsubstantiated in terms of evidence and specifically denied.

34    Ground 12 makes a general allegation that the trial Judge behaved in an unfriendly way to the appellants and in a friendly way to the respondent. If this is intended to raise an issue of bias or prejudice by her Honour, it is wholly unsubstantiated by the appellants. Indeed, perhaps I should say that in his oral submissions the first appellant seems to be suggesting that her Honour had, in the way she had summed-up to the jury, indicated a bias against the appellants and in favour of the respondent. A fair reading of her Honour’s summing-up reveals that this was just not the case. There is not a scintilla of a suggestion of bias, actual or apprehended, by her Honour in the conduct of the trial or in her summing-up to the jury.

35    Ground 13 is in a similar vein and is unsubstantiated and must be dismissed.

36    Ground 14 seems to relate to the costs that her Honour awarded against the appellants at the conclusion of the trial. It is difficult to know what the appellants say about the costs order. No reason has been given by the first appellant why a costs order should not have been made as it was. It appears to be an entirely appropriate order.

37    In the appellants’ submissions some matters are raised which have not been specifically included in the grounds of appeal. For example, paragraph ten relates to an affidavit in support of a notice of motion that was sworn on 9 December 1999. The first appellant, so far as I can understand the paragraph in his written submissions, says that the jury had been instructed and influenced to reach their verdict in accordance with some matter in this affidavit. It appears that the affidavit was one sworn in support of an interlocutory application and was never placed before the jury so this paragraph goes nowhere.

38    In para 18 of the submissions, an allegation is made by the first appellant that the Judge, and indeed defence counsel, prohibited the appellants doing certain things. Only paras (b) and (c) are relevant here because the other sub-paragraphs have been dealt with under specific grounds of appeal. Paragraph (b) and (c) refer to the reading of an affidavit by one of the appellants’ witnesses, a Mr Tabone. The claim seems to be that the most important words and paragraphs in the affidavit were not permitted to be read to the jury. So far as I can understand the situation, Mr Tabone was not present to give evidence. The question arose as to whether the affidavit could be read to the jury. Strictly speaking of course, defendant’s counsel could have objected, and that would have been the end of the matter. The affidavit would not be permitted to be read unless somehow under the Evidence Act it would have become admissible. However, defendant’s counsel did not object to the affidavit being read, except for certain paragraphs which were objectionable. Her Honour allowed the remainder of the affidavit to be read to the jury. Again, I can see nothing in this submission.

39    There is mention in para 19 of the written submissions concerning the written questions which were provided to the jury in order to return their verdicts. The suggestion seems to be that this was a document which was concocted between her Honour and counsel for the defendant and done expressly to assist the AMP. There is not a tittle of evidence to support this allegation. It was obviously necessary for the jury to have written questions since, as I have indicated, there were four discrete causes of action by four separate plaintiffs. There were a number of questions for the jury to consider under each of the claims. Again, if this be seen as a ground of appeal, it fails.

40    I add that in relation to the Judge’s summing-up, with one exception, no specific reference has been made by the first appellant to any particular error in it. As a general allegation it is said (and this is to be found in para 20 of the appellants’ written submissions) that her Honour ‘insulted and demoted the plaintiffs’ and that she influenced the jury in her summing-up. As I have indicated, a fair reading of her Honour’s summing-up discloses none of these things. She certainly did not in any way seek to insult or make any comment derogatory of any of the plaintiffs.

41    In my opinion, the appeal must fail. It is always difficult to challenge a decision of a jury. There is no material before the Court that leads me to conclude that the appeal should be upheld. I would propose that the appeal be dismissed with costs.

42    MEAGHER JA: I agree with the orders proposed by Stein JA and subject to one fairly small thing I agree with his Honour’s reasons. In the course of his Honour’s reasons he said that there is no doubt that he, Mr Bellos, has a genuine grievance against the respondent, AMP. I take it that that means there is no doubt that Mr Bellos believes he has a genuine grievance against the AMP and in that sense I agree with it.

43    BEAZLEY JA: I agree with the reasons of Stein JA and the orders proposed by him. I agree with the qualification made by Meagher JA that, whilst these parties have had issues with AMP, the jury has pronounced on their signing in a legal action and that has not been successfully challenged in this Court.

44    MEAGHER JA: The orders of the Court therefore are that the appeal is dismissed with costs.

oOo