and Akram Karam v Palmone Shoes Pty Ltd
[2016] VSCA 208
•31 August 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2016 0086 | |
| AKRAM KARAM | Applicant |
| v | |
| PALMONE SHOES PTY LTD | Respondent |
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JUDGE: | BEACH JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | On the papers | |
DATE OF JUDGMENT: | 31 August 2016 | |
MEDIUM NEUTRAL CITATION: | [2016] VSCA 208 | |
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PRACTICE AND PROCEDURE – Application for leave to appeal – Service of documents – Service of respondent’s written case and list of authorities out of time – Directions – Directions made by Judicial Registrar – Directions made to facilitate progress of application for leave to appeal and appeal – Application to set aside orders of Judicial Registrar – Application refused – Supreme Court (General Civil Procedure) Rules 2015, rr 64.11 and 64.42.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearances | |
| For the Respondent |
BEACH JA:
Since March 2008, Mr Akram Karam (the applicant) and Palmone Shoes Pty Ltd (the respondent) have been adversaries in litigation. The litigation relates to claims made by Mr Karam under the provisions of the Accident Compensation Act 1985 (‘the Act’) and claims made by him for common law damages. There have been many disputes between the parties. The litigation has spawned satellite proceedings between Mr Karam (who is presently unrepresented) and various firms of solicitors who have acted for him from time to time. The background of Mr Karam’s litigation is set out in various decisions that have already been given, and it is not necessary to repeat those matters again.[1]
[1]See, for example, 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, [2016] VSC 228; Karam v Lennon Mazzeo [2011] VSC 507, [2012] VSCA 98; Karam v Aloe & Co Pty Ltd [2012] VSC 609, [2014] HCASL 44, [2016] VSCA 123; Karam v Toop [2014] VSC 104.
Additionally, in Karam v Palmone Shoes Pty Ltd [2014] VSCA 148, Nettle JA referred to the ‘large number of further applications’ made by Mr Karam, the details of which were set out by his Honour in a table attached to the Court’s reasons for that judgment.
The dispute underlying the present chapter of the proceedings between Mr Karam and Palmone Shoes concerns an order made in the County Court, on 6 June 2016, that Mr Karam’s proceeding in that court be suspended pursuant to s 112 of the Act until he submits himself for examination by an independent medical examiner. Mr Karam, being dissatisfied with that order, is currently seeking leave to appeal from that order in this Court. Mr Karam’s application for leave to appeal (and, if leave is granted, the appeal) is presently fixed for hearing on 28 October 2016.
In order to progress Mr Karam’s application for leave to appeal, on 9 August 2016, Judicial Registrar Irving made orders about the contents and preparation of the leave application book, an agreed summary, folders of authorities and other procedural matters (‘the orders’).
By an application dated 10 August 2016, Mr Karam seeks to have the orders set aside and an order that the application book be limited so as to contain only material filed by him, and not material filed by the respondent.
The present dispute in short compass
Mr Karam contends that the respondent did not file and serve its written case within the 28-day time period required by r 64.11 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). Mr Karam then contends that the failure to file and serve this material within time precludes the respondent from being able to rely upon a written case and other material at the hearing of his application for leave to appeal and appeal. Moreover, he contends that the orders should be set aside because they wrongly permit the respondent to have its written case and other material placed in the application book.
Background facts
On 30 June 2016, Mr Karam sent his application for leave to appeal and other relevant documents, by express mail, to the respondent’s solicitors. It may be accepted that service of these documents is taken to have been made on 1 July 2016.[2]
[2]See r 6.07(5) of the Rules.
Twenty eight days later, at 1:57 pm on 29 July 2016, the solicitor for the respondent filed the respondent’s written case, a list of authorities, a notice of objection to competency, a ‘rewritten summary for the Court of Appeal’ and a document setting out the respondent’s position in respect of the applicant’s application book index.
As to service of these documents on Mr Karam, the respondent’s solicitor has deposed that, at about 1:30 pm on the same day (29 July), he telephoned the applicant on his mobile phone and asked the applicant whether he had a fax or email contact for him to serve the respondent’s material on him. According to the respondent’s solicitor, the applicant said that he did not have access to either method of contact. The respondent’s solicitor then asked the applicant about arrangements for the delivery of documents by courier and, in the words of the respondent’s solicitor, ‘the applicant then hung up on me’.
The respondent’s solicitor then deposed to sending a letter dated 29 July 2016 enclosing the respondent’s materials to the applicant via courier. It would appear that these documents were delivered by courier to an address the respondent’s solicitor had for the applicant in Melton, at about 3:50 pm on 29 July 2016 (that is, still within the 28-day time limited for service under the Rules). The documents were signed for by a person who gave her name as ‘Maria’.
In sending the documents to the Melton address, the respondent’s solicitor overlooked that the applicant had, on his application for leave to appeal, provided a new address for service in South Melbourne.
Subsequent attempts to serve the respondent’s material on the applicant failed on various days in August 2016. However, eventually the respondent’s material came to be in the possession of the applicant. That this is so is shown by the fact that, on 17 August 2016, the applicant returned the respondent’s materials, stating:
I reject to receive your letter and the accompanying documents.
Analysis
In seeking to set aside the orders, the applicant emphasises the importance of time limits. The importance of time limits, and parties’ compliance with them, may for present purposes be accepted. That said, there is no merit in the applicant’s present application to set aside the orders.
The respondent filed its material within time. It attempted to serve the material within time, and would have served the material in time if the applicant had co-operated with it.[3] It is not acceptable for a party in civil litigation to ‘hang up’ on another party in circumstances of the kind described here.
[3]As to which, see ss 18, 19, 20, 22, 23 and 24 of the Civil Procedure Act 2010.
Accepting for present purposes that, while the respondent’s documents were filed within time, they were not served within time (albeit that they were received by ‘Maria’ at an address that the applicant has previously used as an address for service), this was not a case where the applicant was justified in refusing to accept the respondent’s documents. If an extension of time was needed for the serving of the documents that had been filed within time, then it would undoubtedly have been granted.[4] The applicant does not suggest that there was any relevant prejudice in his late receipt of the documents. Nor is it suggested that the respondent’s position on the application for leave to appeal (as a respondent supporting the primary judge’s order) is so devoid of merit that the granting of a very short extension of time should be refused on grounds of futility or the like.
[4]See for example Karam v Palmone Shoes Pty Ltd (Unreported, Court of Appeal, Warren CJ and Beach AJA, 16 August 2012) wherein Mr Karam was given an extension of time of more than 15 months to serve a notice of appeal. In that case it may be observed that, notwithstanding the much longer elapse of time than in the present case, the respondent neither opposed nor consented to the application for the extension of time.
There was no reasonable basis for the applicant to refuse to receive the respondent’s documents. The orders made by the registrar were, and are, entirely appropriate. There is no basis upon which the orders should be set aside. Notwithstanding the respondent’s failure to serve its documents within the 28-day time limited by the Rules, Mr Karam’s application to set aside the orders must be refused.
Conclusion
The application dated 10 August 2016 to set aside the orders made by the Judicial Registrar will be refused. The respondent seeks the costs of the application. There is no reason why costs should not follow the event. Accordingly, there will be an order that the applicant pay the respondent’s costs of and incidental to the application, to be taxed on the standard basis.
Finally, some of the dates in the orders have now passed. These dates will need to be extended. I will leave the extension of the various dates in the orders to the Judicial Registrar.
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