Eleftherios Koutroumanis v Gary J Mann - [2012] HCASL 6

ELEFTHERIOS KOUTROUMANIS
v
GARY J MANN & ORS
[2012] HCASL 6
M143/2011

The applicant seeks special leave to appeal against orders of the Court of Appeal of the Supreme Court of Victoria (Mandie JA and Whelan AJA) dismissing the applicant's application for an extension of time to provide security for costs.
In 2006, the applicant commenced proceedings in the County Court of Victoria against the respondents, who are partners in a firm of solicitors, alleging breach of retainer and negligence. On 27 September 2010, a judge of the County Court (Judge Cohen) awarded the applicant nominal damages of $20. The applicant instituted an appeal to the Court of Appeal.
On 17 June 2011, the Court of Appeal (Harper J and Macaulay AJA) ordered that the applicant provide security for the respondents' costs of the appeal in the amount of $31,987.90 by 15 July 2011, and that the appeal stand dismissed if such security were not given. The applicant did not provide the security for costs within the time required. On 14 July 2011, the applicant filed an application for an extension of time to provide the security. On 23 September 2011, the Court of Appeal (Mandie JA and Whelan AJA) dismissed the applicant's application for an extension of time on the basis that there was no evidence that the applicant would ever be able to raise the security for costs.
As the applicant is unrepresented, the application falls to be dealt with under r 41.10 of the High Court Rules 2004.
The applicant's written submissions do not advance any questions of law which would justify a grant of special leave to appeal. The application concerns a matter of practice and procedure – in particular, whether the Court of Appeal erred in refusing an extension of time to provide security for costs. The application does not raise a question of principle of public importance which would warrant consideration by this Court, and the interests of the proper administration of justice are not engaged.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application.

K.M. Hayne
9 February 2012 S.M. Crennan

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] HCASL 6
Decision Date

CaseChat Overview and Summary

Eleftherios Koutroumanis brought proceedings in the County Court of Victoria against Gary J Mann and others, alleging breach of retainer and negligence. The County Court awarded Koutroumanis nominal damages of $20. Koutroumanis appealed to the Court of Appeal of the Supreme Court of Victoria. The Court of Appeal ordered Koutroumanis to provide security for costs within a specified timeframe, which he failed to do. Koutroumanis applied for an extension of time to provide the security but the Court of Appeal dismissed his application. Koutroumanis sought special leave to appeal against the dismissal of his application.

The primary legal issue was whether the Court of Appeal erred in refusing Koutroumanis's application for an extension of time to provide security for costs. The Court of Appeal found that there was no evidence Koutroumanis could ever raise the required security. The Court had to determine if the Court of Appeal's decision involved a question of law warranting special leave to appeal, and if the interests of justice required the appeal to proceed.

The High Court held that Koutroumanis's application did not advance any questions of law justifying special leave to appeal. The matter concerned practice and procedure, specifically the refusal to extend the time for providing security for costs. The High Court found no question of principle of public importance or engagement of the proper administration of justice. Therefore, the High Court dismissed the application for special leave to appeal.

Orders