Ettridge v Ozyjiwsky (No 3) - [2013] SADC 118

District Court of South Australia
(Civil)
ETTRIDGE v OZYJIWSKY (No 3)
[2013] SADC 118
Judgment of His Honour Judge Slattery (ex tempore)
25 June 2013
PROCEDURE - COSTS
Following a trial in which the plaintiff's claim was successful, the plaintiff made an application for money held in the District Court Suitors Fund (plus interest) to be paid to the plaintiff's solicitors trust account forthwith.
Defendant was unrepresented throughout the trial, and remains unrepresented. Defendant has prepared a Notice of Appeal to be filed in the Supreme Court following the outcome of the trial.
Held: application refused. It is inappropriate for an Order to be made for payment out of the Suitors Fund until the appeal has been disposed of. The plaintiff has sufficient security over the defendant by having the funds remain in the Suitors Fund.
Application made by the plaintiff for costs against the defendant on an indemnity basis.
The plaintiff delievered a letter to the defendant dated 3 September 2012 (some 15 days prior to the commencement of the trial) in the form of a "Calderbank" offer.
Held: application refused. It was not unreasonable for the defendant to not accept the offer, nor was the defendant's case at the time of trial so weak that indemnity costs ought to be awarded against him.
Order: Paragraphs 2, 3 and 4 of the plaintiff's interlocutory application dated 11 June 2013 dismissed.
District Court (Civil) Rules 2006 Rule 264(5)(c) , referred to.
S,DJ v Channel 7 Adelaide Pty Ltd & Anor (2007) 97 SASR 118; Fiduciary Limited v Morning Star Research Limited (2002) 55 NSWLR 1 ; Alstom Power Limited v Yokogawa Australia Limited (No. 2) (2006) 244 LSJS 65; Sands v Channel 7 Adelaide Pty Ltd & Anor. (No. 2) [2009] SASC 365, applied.

ETTRIDGE v OZYJIWSKY (No 3)
[2013] SADC 118

By interlocutory application dated 11 June 2013, the plaintiff seeks the following orders:-
“1. …
2. That the moneys held in the Suitor’s [sic] fund of the District Court pursuant to the order of Master Rice made on the 3^rd day of September 2012 in addition to interest thereon be paid to the Plaintiff’s solicitors Trust Account . [sic]
3. That the Defendant pay the Plaintiff’s costs of action on a solicitor and own client basis.
4. Such further or other order as this honourable court deems fit.”
This application follows the delivery by me of my judgment in this matter on 7 June 2013 [2013] SADC 77.
At para.129 of that judgment, I said the following:-
“1. The relationship between the plaintiff and the defendant that gave rise to the private loan agreement dated 17 April 2012 was an arms-length relationship between the plaintiff as a lender of the sum of $100,000 and the defendant as the recipient/borrower of the sum of $100,000 loaned to him by the plaintiff. The terms of that loan agreement were governed solely by the written private loan agreement dated 17 April 2012 and not by any other extraneous or collateral terms or contract or implied term.
2. The private loan agreement was not to be viewed in the broader context of any other type of relationship between the parties. The private loan agreement recorded the relationship between the parties and was not part of some broader form of agreement. The private loan agreement was to be construed according to its terms.
3. The plaintiff was entitled to obtain the benefit but not the burden of the Forex trading done by the defendant using the $100,000 provided by the plaintiff to the defendant under the terms of the private loan agreement. The plaintiff was also entitled to the benefit of a personal obligation upon the defendant to repay the private loan in accordance with the terms of the agreement.
4. The private loan agreement was properly to be construed as a monthly turnover agreement. It was not an agreement that would continue and roll-on month to month, except by agreement between the parties.”
In this interlocutory hearing, as in the trial, Mr Ozyjiwsky, the defendant, is unrepresented.
On 7 June 2013, I said the following in respect of the question of costs:-
“[130] …I will hear the parties as to ancillary orders including in relation to monies paid into Court and in respect of costs.”
I made Orders on that day that on the questions of costs, any application by any party was to proceed for argument on 21 June 2013. On that date Mr Ozyjiwsky informed me that solicitors whom he had spoken to could not or would not attend the hearing on 21 June, notwithstanding that I had asked him to ensure that he was represented on that occasion.
Mr Ozyjiwsky applied for an adjournment to the following week, that is until today, to enable him to brief solicitors and to be represented at the hearing of this application. I allowed that adjournment, but in doing so, I made the following orders:-
“1. That the plaintiff’s application for costs to be awarded on a solicitor/client basis is adjourned until Tuesday 25 June 2013 at 11 am. I indicate for the sake of the transcript that the matter will be heard and determined and disposed of on that day, and there will be no further adjournments of the matter.
2. I order that the costs of the adjourned application be the plaintiff’s costs. I will hear Mr Anderson further in relation to the followings matters, first, whether I am entitled under the rules to fix an amount in respect of those costs as opposed to leaving the matter to the taxing master. Second, whether that order for costs should be in any event or alternatively an order for costs to be payable forthwith.
3. I give liberty to all parties to apply upon short notice.”
At the hearing today, Mr Ozyjiwsky was again unrepresented. He was not able to offer to me any explanation about why he was not represented at the hearing. He made the same suggestions as he had made on a number of occasions previously, that there were a number of people who were prepared to act for him but who would not attend today. Although I have significant doubts about the veracity of that explanation, it is not a matter that I need to resolve now.
I have had the benefit of very thorough written submissions and very helpful oral submissions from Mr Anderson of counsel for the plaintiff.
Turning first to the costs of the adjourned application hearing on 21 June 2013, I asked Mr Anderson to make submissions to me about whether I am entitled under Rule 264(5)(c) of the District Court (Civil) Rules to award a lump sum order for costs in respect of the adjournment on 21 June, and whether that order for costs should be an order for costs in any event or for costs to be payable forthwith.
I have had regard to all of the submissions made to me by Mr Anderson. I have also had regard to the authorities that he referred me to, and in particular the decision of the Full Court of the Supreme Court of South Australia in S,DJ v Channel 7 Adelaide Pty Ltd & Anor reported in (2007) 97 SASR 118. The relevant passages are at paras.12-13 inclusive and read as follows:-
“[12] It is a corollary of that principle that impecunious litigants who have a meritorious claim or defence should be able to be paid what is due on an interlocutory costs order if the interlocutory proceedings concern a discrete issue and that issue has been resolved especially where the principal proceedings are not likely to be resolved for some considerable time: Australian Flight Test Services Pty Ltd v Minister for Industry, Science and Technology [1996] FCA 288; Life Airbag (supra); Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No 13) [1995] FCA 626.
[13] That conclusion is consistent with the remarks of Priestley JA in Horrobin v Australia and New Zealand Banking Group Ltd (unreported, New South Wales Court of Appeal, 6 June 1997) at 9:
None of the cases is on all fours with the present one; indeed, a reading of them emphasises the need for cases to be considered by reference to their own particular facts. Nevertheless, those relied on by counsel for H and S show there is a tendency for costs orders to be made payable forthwith and without waiting for the conclusion of further proceedings when the proceedings in respect of which the costs orders have been made are regarded as sufficiently self contained and detached or detachable from proceedings yet to be heard, whether between the same or associated parties, as to make it seem just for an actual payment to be made in the meantime.
The Rule on which Priestley JA commented was Rule 9 of the Part 52A of the Supreme Court Rules 1970. Rule 9 relevantly provide:
9 (1)     Where before the conclusion of any proceedings … the Court makes an order for the payment of costs or a motion is refused with costs, the costs shall not, unless the court otherwise orders, be payable until the conclusion of the proceedings.
…
(3)     Where in any proceedings:
(a)        it appears to the Court that:
(i) a party has been subject to unreasonable delay or default on the part of any other party;
(ii)        the proceedings are unreasonably protracted; or
(b)        a costs order is made under r 43 or r 43A,
the Court may order that costs, or a specified amount on account of costs, be payable forthwith.
In Fiduciary Limited v Morningstar Research Pty Ltd (2002) 55 NSWLR 1, Barrett J held that sub-rule (3) did not represent an exhaustive catalogue of the circumstances in which the Court may order that costs be payable forthwith. He said that the starting point was the decision of Priestley JA in Horrobin to which I have already referred. From that starting point Barrett J identified three cases where it might be appropriate to depart from the general rules, namely,
1. where the interlocutory proceeding represents the determination of a separately identifiable matter or may be viewed as a completion of a discrete aspect of the action: see, for example, Charlie Brown Pty Ltd v Green (unreported, Supreme Court of NSW, McLelland CJ in Eq, 3 July 1995) and Bagley v Pinebelt Pty Ltd [2000] NSWSC 830;
2. where there has been unreasonable conduct on the part of the party against whom costs have been order: Gattellari v Meagher [1999] NSWSC 1279; and
3. a considerable time remains before the proceedings will ultimately be determined: Doran Constructions Pty Ltd v University of Newcastle (unreported, Supreme Court of NSW, Giles J, 16 December 1994) at 21.
There is an obvious correspondence between these principles and those expressed by judges in the Federal Court of Australia. The New South Wales rule has been replaced by r 42.7(2) of the Uniform Civil Procedure Rules 2005 (NSW) in that court which provides:
Unless the court orders otherwise, costs referred to in subrule (2) do not become payable until the conclusion of the proceedings.
Plainly, the new rule does not affect the principles enunciated in respect of the former rule. These principles apply with equal force to an application for taxation of costs before the conclusion of the proceedings under both Rule 101.01(7) and Rule 265 of the 2006 Rules. While the Court has an unfettered discretion to make an order and that discretion must not be fettered by epithets such as “exceptional”, the applicant for taxation of costs before the conclusion of the proceedings must satisfy the Court that there are reasons to depart from the general rule.”
In their decision in S,DJ the Full Court referred with approval to the decision of Barrett J in his Honour’s decision in the Equity Division of the Supreme Court of New South Wales in Fiduciary Limited v Morning Star Research Limited reported in (2002) 55 NSWLR 1 and the relevant passages commence at para.11, 12, and 13.
“[11] This identifies the first recognisable category of case, namely, where the application or aspect in respect of which the particular costs order is made before conclusion of the proceedings represents the determination of a separately identifiable matter or may be viewed as the completion of a discrete aspect. Examples of this may be found in Charlie Brown Pty Ltd v Green (McLelland CJ in Eq, 3 July 1995, unreported) and Bagley v Pinebelt Pty Ltd [2000] NSWSC 830.
[12] A second factor which may incline the court to order that costs be payable forthwith is some unreasonable conduct on the part of the party against whom costs have been ordered. That was a factor taken into account by Simpson J in Gattellari v Meagher [1999] NSWSC 1279, although, in the end, her Honour did not think that the particular conduct warranted such an order.
[13] A third factor is, as it was put by Giles J in Doran Constructions Pty Ltd v University of Newcastle (Giles J, 16 December 1994, unreported) at 21, that “there was much to come in these proceedings” and “one can see a fairly long time before the proceedings are disposed of”. In Horrobin, the decision of Priestley JA to order that costs be payable forthwith was influenced to some extent by the fact that the controversy between the parties would run for at least a further year. In Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (Federal Court of Australia, Lindgren J, 18 August 1995, unreported), Lindgren J said that it may be appropriate for greater use to be made of the analogous provision in the Federal Court Rules 1979 (Cth), “particularly in cases such as this one where the final determination of the proceedings is so far away”.”
Having regard to the authorities that Mr Anderson has put to me, two matters arise. On my reading of rule 264(5)(c), it does not appear to be the case that the costs of an interlocutory application of this nature have been awarded on a lump sum basis by a Judge of this Court or of any Court. The rule provides as follows:-
“264—Basis for awarding costs
(1)     The Court may, in the exercise of its discretion as to costs, award costs on any basis the Court considers appropriate.
(2)     As a general rule, however, costs are awarded as between party and party (that is, on the basis that the party entitled to the costs will be reimbursed for costs reasonably incurred by the party in the conduct of the litigation to an extent determined by reference to the scale of costs in force, under these rules or the previous rules, when the costs were incurred).
(3)     …
(4)     …
(5)     In exercising its general discretion as to costs, the Court may—
(a)     award costs as between solicitor and client (that is, on the basis that the party will be fully reimbursed for costs reasonably incurred by the party in the conduct of the litigation); or
(b)     award costs on the basis of an indemnity (that is, on the basis that the party will be fully reimbursed for costs incurred by the party in the conduct of the litigation except to the extent that the party liable for the costs shows them to have been unreasonably incurred); or
(c)     award costs by way of lump sum; or
(d)     award costs on any other basis the Court considers appropriate.
(6)     …
(7)     …
(8)     A party who is entitled to costs, or against whom costs have been awarded, may apply to the Court to have costs, or a particular component of costs, awarded on a particular basis.”
I am not able to identify any authority which this question has been considered, or where a lump sum has been provided in terms of the judgment in favour of any party to a proceeding.
As a matter of principle, I am unable to see that a distinction is to be made between trial costs and interlocutory costs following a trial in a situation such as this. However, in the absence of any consideration of that matter by a higher Court, I am not satisfied that I am in a position to fix an amount in respect of those costs.
The second matter related to the question of costs to be payable forthwith. I was referred to the authority of Alstom Power Limited v Yokogawa Australia Limited[1] by Mr Anderson and the decision of Debelle J as follows:-
[1] (No. 2) (2006) 244 LSJS 65.
“[4] The discretion with which r 101.01(7) invests the court is unfettered. The rule is expressed in terms which make it clear that the general rule is that a taxation of costs will occur at the conclusion of the proceedings, unless the court makes an order to the contrary. It is not appropriate to state that the order for costs shall be paid forthwith will be made in “rare” or in “exceptional” circumstances. The rule clearly states the general position so that to add epithets such as “rare” or “exceptional” is to add words to the rule in an impermissible manner, which may cause the exercise of the court’s discretion to be improperly fettered.
[5] As far as the research of counsel and my own research disclose, the rule has not been the subject of consideration by this Court in any reported decision. However, the rule is in the same terms as O 62 r 3(3) of the rules of the Federal Court of Australia which has received quite a degree of judicial notice.
The Underlying Policy
[6] The policy reasons underlying O 62 r 3(3) were noted by Sackville J in Courtney v Medtel Pty Ltd (No 3) [2004] FCA 347. They include
1. discouraging interlocutory applications: Stack v Brisbane City Council (1996) 71 FCR 523 at 534;
2. avoiding the inconvenience and possible oppression involved in a series of taxations where there are successive interlocutory applications: Vasyli v AOL International Pty Ltd [1996] FCA 804; and
3. the fact that it is usually inappropriate to require the unsuccessful party to interlocutory proceedings to pay costs immediately, since that party might ultimately succeed in the substantive proceedings and set‑offs can be made in light of the ultimate orders as to costs: Brasington v Overton Investments Pty Ltd [2001] FCA 571 at 13; Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136 at 145.
Those policy considerations apply with equal force to costs orders made in this Court. Those policy reasons inform the factors to be considered when this Court is deciding whether to depart from the general rule.
[7] In the Federal Court O 62 r 3(3) has been generally interpreted as conferring a discretion which should be exercised in favour of a party who establishes that the demands of justice require a departure from the general practice: Thunderdome Racetiming & Scoring Pty Ltd v Dorian Industries Pty Ltd (1992) 36 FCR 297 at 312; Stack v Brisbane City Council (supra) at 535; Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd (2000) 191 ALR 579 at 594. Some judges in the Federal Court have expressed the view that a departure from the general rule should be countenanced only in “rare cases”: Vasyli (supra). Others have suggested that the power might be somewhat under‑utilised: Allstate Life Insurance Co v Australia and New Zealand Banking Corporation Ltd (No 14) [1995] FCA 660; Life Airbag Company of Australia Pty Ltd v Life Airbag Company (New Zealand) Ltd [1998] FCA 545; McKellar v Container Terminal Management Services Ltd [1999] FCA 1639 at [41]. I do not believe that anything is to be gained by considering whether or not the power should be rarely used. The question for consideration is whether it is in the interests of justice to make an order in the individual case, having regard to the fact that the general rule is that costs are not payable until the conclusion of the principal proceeding.
Relevant Factors
[8] The factors identified by the Federal Court as justifying a departure from the general rule include the following.
1. Where an interlocutory proceeding involving a discrete issue has been resolved: Australian Flight Services v Minister for Industry Science & Technology [1996] FCA 288; Courtney v Medtel Pty Ltd (No 3). However, where the interlocutory proceeding concerns pleadings, especially pleadings in a complex action, such an order will not usually be made: All Services Australia Pty Ltd v Telstra (2001) 171 ALR 330 at 333; Murran Investments Pty Ltd v Aromatic Beauty Products Pty Ltd (supra).
2. Where the principal proceedings are not likely to be resolved for some time so that, in the absence of an order, the successful party will not enjoy the fruits of the interlocutory order for a long period: Life Airbag (supra); Allstate Life Insurance Co v Australia and New Zealand Banking Corporation Ltd (No 13) [1995] FCA 626.
3. Where the interlocutory application has had the effect of removing one of several causes of action in its entirety: Mitanis v Pioneer Concrete (Vic) Pty Ltd (1998) ATPR 41‑623.
4. Where the application is an unsuccessful application for leave to appeal on an interlocutory matter of practice and procedure given the strong public policy against the proliferation of such applications: Bailey v Beagle Management Pty Ltd (supra) at 145.
These principles are equally applicable to an application under r 101.01(7). There are further matters for consideration. The court will, as a general rule, set its face against multiple applications for costs to be taxed and payable forthwith as the interlocutory proceedings unfold. That proposition does no more than reflect the terms of the rule and the policy reasons underlying it.”

I have applied these principles in arriving at my decision.
I am not satisfied that this matter is a matter appropriate for costs to be payable forthwith. The reasons are these:
1.The interlocutory proceeding does not involve a discrete issue because the nature of the matter involves the completion of this action a judgment having been delivered after trial.
2. The principal proceedings have been resolved and these are matters ancillary to the principal proceedings.
3. The interlocutory application does not resolve part of the substantive claim because the question of costs are also ancillary to the substantial claim.
4. There is no suggestion the interlocutory application has been used inappropriately.
5. There is no suggestion that a payment, albeit that a payment forthwith, may stultify the proceedings, because there is no evidence on the point. I am satisfied from what Mr Ozyjiwsky has said from the bar table that he has been left bereft financially by virtue of the order of payment in of moneys to the Court that have been made on an interlocutory basis.
Finally, I am unable to identify any matter which would inform the question of whether an immediate payment would include an offsetting of costs orders. In those circumstances I am not prepared to make an order that those costs either be fixed in a lump sum or that they be paid.
Turning then to para.3 of the interlocutory application. On the last occasion the matter was before the Court I drew Mr Anderson’s attention to the decision of his Honour Bleby J in the decision of Sands v Channel 7 Adelaide Pty Ltd & Anor (No.2) (Sands).[2] A question arising in that decision was whether an offer called a Calderbank offer not having been accepted should be viewed and acted upon as a basis for an award of costs on an indemnity basis. The plaintiff’s application in this matter on costs is on a solicitor-client basis. For present purposes there is no material difference between the two for the purposes of discussion.
[2] [2009] SASC 365.
In his judgment in Sands, Bleby J summarised the relevant principles concerning primarily the defendant Channel 7 Adelaide Pty Ltd (and not the ABC) concerning its position in that litigation. The relevant facts of that litigation are as follows:-
“[2] On 14 and 15 May 2004, Channel 7 broadcast a promotion for its “Today Tonight” program which contained a reference to the plaintiff as “a suspect in a murder case”. Another person who was identified in the same promotion sought and obtained an injunction restraining the broadcast of the program. The ABC published radio and internet reports on proceedings in the District Court relating to the injunction. These reports made reference to the Judge’s concerns that Channel 7 had named the plaintiff as a murder suspect.
[3] The plaintiff commenced his action against both defendants on 21 May 2004. There have been a number of interlocutory applications and appeals from interlocutory orders in the proceedings. I will refer to them only where relevant. The trial commenced in February 2009 and occupied 13 sitting days.
[4] In its final form, the statement of claim included a plea that the Channel 7 publication bore the imputation that the plaintiff was a suspect in a particular murder case, and that there were reasonable grounds for that suspicion. Channel 7 denied that the publication bore the pleaded imputation, and in addition relied on the defences of justification and extended qualified privilege. I found that the publication did bear the pleaded imputation and that the defence of extended qualified privilege was not made out. However Channel 7 succeeded in its defence of justification.”
In his judgment his Honour discussed the relevant authorities applicable under the former Rules (the 1987 Rules).
“[8] There was some discussion of whether the applicable rules relating to the costs consequences of offers of settlement in this action are contained in the Supreme Court Rules 1987 (SA) (“the 1987 Rules”) or the Supreme Court Civil Rules 2006 (SA) (“the 2006 rules”). The rules setting out the consequences of filed offers are r 40 of the 1987 Rules and r 187-188 of the 2006 Rules. This action was conducted under the 1987 Rules. The costs provisions in Chapter 12 of the 2006 Rules clearly apply to this action by virtue of the transitional provision in r 8(2)(a) of the 2006 Rules. However, r 187 and r 188 are not contained in Chapter 12. This point was not fully argued before me and in any event it is not necessary to decide which of the provisions relating to filed offers apply.
[9] This is because, first, neither the ABC nor Channel 7 filed an offer of settlement. Therefore the Rules of Court relating to filed offers can have no direct application. In any event neither the 1987 nor the 2006 Rules direct that a defendant who files an offer of settlement and is wholly successful in the action is necessarily entitled to indemnity costs. The court is, however, entitled to have regard to the offers in considering the question of costs. This is the situation at common law[3] and is made explicit in r 263(3) of the 2006 Rules. A Calderbank letter may be the basis for awarding indemnity costs if rejection of the offer is unreasonable in all the circumstances.[4] It was common ground that regard ought only be had to an informal offer if it complies with the spirit and intent of the rules regarding filed offers.[5]”
[3]    Bates v Nelson (1973) 6 SASR 149, 158; Pirrotta v Citibank Ltd (1998) 72 SASR 259; Glenmont Investments Pty Ltd v O’Loughlin [1999] SASC 504.
[4]    See, eg, Pozzan v Gibbons (No 2) [2006] SASC 182, (2006) 244 LSJS 442; Jacomb v Australian Municipal, Administrative, Clerical and Services Union [2004] FCA 1600.
[5]    Morris v McEwen [2005] SASC 284, (2005) 92 SASR 281.
On the question of the nature of the costs orders to be made, his Honour was not prepared in the matter of Sands v Channel 7 to conclude that the plaintiff’s case was so weak as to justify an award of indemnity costs and in this instance I will treat that as being an elevated costs order. That is because at trial certain findings were made against Channel 7 which substantiated the plaintiff’s case. Also certain defences of Channel 7 were rejected by his Honour. His Honour’s findings and conclusions on that issue turn on an assessment of the credibility of the plaintiff and other witnesses as follows:-
“[17] …My findings and conclusion on this issue turned on an assessment of the credit of the plaintiff and of other witnesses. Counsel for Channel 7 submitted, in this application for costs, that those findings were natural and inescapable, and that this would have been apparent to the plaintiff and those advising him at the time Channel 7 made its offer. I cannot accept that submission. My findings on credit depended on a number of factors including the answers that the plaintiff gave to questions asked in cross-examination, his demeanour in the witness box, and the evidence given by witnesses called by Channel 7. These matters, let alone the conclusions that the trial Judge would draw from them, cannot have been known to the plaintiff or his advisors in April 2006. Nor would they necessarily have become obvious as the matter drew closer to trial.”
Notwithstanding a submission by counsel for Channel 7 that those findings were natural and inescapable and should have been apparent to the plaintiff, Bleby J rejected that submission. Bleby J found that findings on credit depended upon a number of factors: ‘...(including) the answers that the plaintiff gave to questions asked in cross-examination his demeanour in the witness box and the evidence given by witnesses called by the (defendant).’ These matters, let alone the conclusions that the trial judge was to draw from them, could not have been known to the plaintiff or his advisers (at the relevant time), nor would they necessarily have become obvious as the matter drew closer to trial.
Bleby J then considered the offer that was made by Channel 7 which was a cash offer of $20,000 with a component of $2,000 for costs and, having assessed that offer in the context of the plaintiff’s position, his Honour said at para.22 as follows:-
“[22] In hindsight it is easy to see that the plaintiff would have been far better off had he accepted the offer. But at the time it was made, I do not consider that it was unreasonable for the plaintiff to choose not to accept the offer. By the time that the issues for trial had crystallized, the costs component of the offer did not justify acceptance. Nor do I consider that the plaintiff’s case, either at the time of the offer or at the time of trial, was so weak that indemnity costs ought to be awarded against him.”
In this matter I refer to my judgment in Ettridge v Ozyjiwsky (No.2). In that judgment I have set out the details of the application for an interim injunction, the further hearing before other District Court Judges when the interim injunction was made interlocutory, the applications before the master concerning the payment into Court as required by the interlocutory injunction orders and the failure of Mr Ozyjiwsky to comply with those orders.
On the first day of trial I heard and determined an appeal from the decision of Master Rice and that is contained within judgment No.2. Having delivered that judgment, I then proceeded to hear the trial of the matter.
In his affidavit Mr Fidler correctly informs the Court that the offer that was made to Mr Ozyjiwsky in the Calderbank letter of 3 September 2012 (Exhibit DWF2 to the affidavit of David Warwick Fidler sworn 11 June 2013 FDN24B) stated that the plaintiff was prepared to accept the sum of $90,000 plus costs incurred to date and inclusive of interest in full and final satisfaction of his claim for $100,000 plus costs and interest.
That offer was made some 15 days or so before trial and in the facts of this matter that included the time leading up to the hearing of the appeal against the determination of Master Rice concerning the payment into Court of the sum of $100,000 which was the subject of the appeal judgment which I delivered (No.2).
At that time Mr Ozyjiwsky did not have legal representation and this remained the position during the trial. There has been some suggestion that notwithstanding that he has not had legal representation in Court, Mr Ozyjiwsky has had assistance from other persons with legal training. On a number of occasions that are recorded in the transcript, Mr Ozyjiwsky informed me that he was taking advice from a Mr Tennyson Turner and that he was taking advice from other persons and having discussions with other persons who had legal training or who were lawyers in relation to the conduct of the hearing. The view that I formed was that having regard to the persons identified by Mr Ozyjiwsky, those discussions with Mr Turner would burden Mr Ozyjiwsky as opposed to assisting him. Notwithstanding the position was reached that there was quite frenetic activity in this matter in the period leading up to trial and in particular in the period from the time of Mr Fidler’s letter of 3 September 2012.
I accept Mr Anderson’s submissions that the Calderbank offer made by the plaintiff was consistent with the spirit and intent of the District Court Rules. In particular, the offer was made 18 days prior to the commencement of trial. 6R 187 identifies the ‘relevant date’ as being 21 days before the date fixed for the trial to commence. It was never withdrawn and it remained open for acceptance until the first day of trial and, in fact, until delivery of the Judgment.
I am unable to place any weight upon the fourth submission made by Mr Anderson[6] because there is no evidence of those matters and Mr Anderson merely refers to the copy of the record of activity in the Court.
[6] 2.6.4 At the time that the offer was made, pleadings had not been filed. The attention of the Plaintiff’s legal advisers was directed to other matters (given the urgent nature of the proceedings) and a Calderbank offer was a convenient and expeditious manner to make an offer (noting that the Calderbank offer was sent by email communication).
In the end this is a matter for the exercise of my discretion in relation to costs. It is not sufficient to say that Mr Ozyjiwsky might have been far better off if he accepted the offer. In my opinion it was not unreasonable for him to choose not to accept the offer and nor do I think that at the time of the offer or at the time of trial was his case so weak that indemnity costs or that solicitor-client costs ought to be awarded against him.
The reasons for that finding are contained in the relevant findings that I have made in my decision: Ettridge v Ozyjiwsky [2013] SADC 77. In that decision I reported that Mr Ozyjiwsky’s principal defence was that this matter was not one which merely revolved around the terms of a loan agreement, but that in particular there was some form of other agreement extant between the parties, either collateral with or existing in some other way that would entitle Mr Ozyjiwsky to claim that the plaintiff had agreed to suffer the burden as well as to enjoy the benefit of any foreign exchange trading that he did.
I refer in particular to the fact that I was not prepared to accept the evidence of Mr Ettridge unless it was objectively or otherwise corroborated. That is the basis upon which I proceeded to reach my decision in this matter. My decision reflects the fact that it was Mr Dichiera, the accountant for Mr Ettridge, who was the key witness in the matter and who gave very strong and clear advice to Mr Ettridge that he should not enter into any form of joint venture or arrangement with Mr Ozyjiwsky in relation to the contribution of his $100,000 capital, but should only make that money available on the basis of a loan agreement. He strongly advised Mr Ettridge that any such agreement be reflected in a document in writing. That is what has occurred and that result is reflected in my judgment.
The issue is further complicated by the fact that Mr Ozyjiwsky and Mr Ettridge were dealing with each other in the lead up to the execution of the loan agreement. This occurred largely in the absence of Mr Dichiera and it was only after those communications that Mr Dichiera became more involved, and this was in January and February of 2012. There was no evidence that Mr Ettridge made Mr Dichiera aware of everything that was discussed between he and Mr Ozyjiwsky. Obviously enough, Mr Dichiera was told enough to be aware of the joint venture proposal. In the view that I formed there was opportunity enough for Mr Ozyjiwsky and Mr Ettridge to have formed very different views about the factual background and circumstances pertaining to this dispute. A primary area of dispute concerned the parties’ discussions leading to the formation of any agreement between them.
In my opinion, Mr Ozyjiwsky’s defence was not so weak that at the time of the offer or at the time of the trial that, if properly advised, Mr Ozyjiwsky would not have challenged the claim of Mr Ettridge. It was a matter for Mr Ozyjiwsky to put whatever evidence was available to him before me as the trial judge to entitle him to whatever verdict that he sought in terms of the claim of the plaintiff.
Mr Ozyjiwsky has said to me today that he considers that there was other evidence that he might have brought. He is not able to identify it and I am satisfied that I gave him every opportunity to put before me any matter that he wished to put in support of his defence of the matter.
For those reasons I order that subject to any specific costs for orders relating to the interlocutory orders already made, and any costs issues arising from the appeals from those interlocutory orders which are matters that I dealt with in September 2012, the defendant should pay the plaintiff’s costs on a party and party basis. I make no order in terms of the defendant’s interlocutory application in para.3.
I turn then to para.2 of the interlocutory application. That paragraph seeks an order that the moneys held in the suitors fund of the District Court pursuant to the order of Master Rice made on 3 September 2012 in addition to interest thereon be paid to the solicitor’s trust account.
Mr Ozyjiwsky has now commenced an appeal to the Full Court of the Supreme Court against my judgment. Mr Ozyjiwsky has delivered to me a copy of a notice of appeal. It reads as follows:-
“The Appellant ROMAN OZYJIWSKY appeal to a Full Court of the Supreme Court of South Australia against the Judgment of His Honour Judge Slattery dated the 6^th day of June 2013.
…
The appeal is against the whole of the Judgment of Judge Slattery FOR THE RECOVERY OF THE SUM OF $100,000 ACT NO 1137 OF 2012.
It is my intention to file an appeal against the Judgment set out above on the following grounds:-
1.   The Learned Judge erred in that he failed to find that there was a joint venture between the Appellant and Respondent regarding all their activities relating to trading in the Forex Market.
2.   The Learned Judge contradicted himself on several occasions in the aforesaid Judgment in finding on one occasion that there was probably a joint venture and on another that the written agreement between the Appellant and Respondent was a Private Loan Agreement.
3.   The Judgment displays a bias of the Learned Judge against the Appellant.
4.   Such other matters and opinions expressed in the Judgment are numerous and incorrect in law.
5.   Many statements in the Judgment contradicting one with the other.
6.   The Learned Judge erred improperly and incorrectly relied on evidence given by an accountant Mr. Dichiera.
7.   Such other matters as the Appellant may consider engaging.”
The orders sought on the notice are as follows:-
“1. The striking out of the said Judgment of His Honour Judge Slattery.
2. Such other order or orders as the Court deems fit or a re-hearing of the matter.”
Rule 300 of the District Court Rules reads as follows:-
“300—Stay of execution
(1) An appeal does not operate to stay execution of, or proceedings on, the judgment subject to the appeal nor does it invalidate proceedings that have already been taken on the judgment.
(2) The Court may, however, order a stay of execution of, or proceedings on, a judgment because it is subject to appeal or for any other proper reason.”
In this application (as well, it appears, in the appeal), Mr Ozyjiwsky remains unrepresented, despite a number of opportunities being given to him to obtain representation before this Court. I am not satisfied from the explanations given to me by Mr Ozyjiwsky of his inability to be represented in Court today and I have significant doubts about the suggestions made by him that particular solicitors, whom he has named; namely a Mr Ramsey, a Mr Sanders and a Mr Hollidge would have been prepared to represent him today, but were otherwise engaged. I say that for these reasons: first, it is almost 20 days since the decision was handed down and there have been three appearances in the Court in respect of the judgment. They are the handing down of the judgment, the hearing on 21 June and the hearing today.
Second, Mr Ozyjiwsky has informed me that he has obtained assistance from the solicitors to prepare the notice of appeal, that there is no explanation as to why that solicitor is not prepared to be here today to represent Mr Ozyjiwsky. And finally, having regard to the whole of the history of the matter, there is no suggestion that any solicitor has ever filed a notice of acting on behalf of Mr Ozyjiwsky throughout the life of this matter.
Having regard to all of the views that I have previously expressed, and having regard to the fact that I am required to deal with an unrepresented defendant, I have taken the view that it is inappropriate to make an order for payment out of the money in the suitors fund in the District Court.
I make the decision for the following reasons: first, the funds remain in the suitors fund and will remain there until the disposition of the appeal. That is the position despite the fact that on the basis of the material contained in the notice of appeal the prospects of success of the appeal are at the lower end of the poor in my estimation. The document is recognisable as a “scattergun” attempt that lacks focus, appropriate merit and the necessary acuity.

The second is that having regard to the fact that Mr Ozyjiwsky is self represented, I will assume that a submission would be put to me that there is presently sufficient security for the plaintiff by having the funds remain in the suitors fund and there attracting interest so that in the exercise of the discretion there is no reason to order the payment out.
And third, I will also assume that a submission would be made to me that having regard to the relative positions of the parties, and because the plaintiff has the benefit of the security of having money of the defendant in the suitors fund, it is inappropriate for the plaintiff now to have the benefit of the money being paid out. That in turn may lead to the Court making some other order against the plaintiff to secure all or part of that judgment sum at the cost of the plaintiff. It seems to me that this would impose an unnecessary expense and burden (including costs) on one of the parties to the proceedings and the better result is that the money remain in the suitors fund pending any decision of the Supreme Court.
If Mr Ozyjiwsky does not proceed with his appeal in accordance with the terms of the rules, that is a relevant matter in the exercise of my discretion concerning the payment out of the suitors fund. In coming to my decision to reject para.2 of the interlocutory application today and notwithstanding my views as to the merits of the ground set out in the notice of appeal, it is necessary for Mr Ozyjiwsky to prudently, efficiently and timeously proceed with his appeal in accordance with the rules of Court.
That said, if Mr Ozyjiwsky proceeds in the way in which he has in this matter absent a representation by solicitors, it is almost assured that a prudent, efficient and timeous prosecution of his appeal will not occur. It is, therefore, very necessary for Mr Ozyjiwsky - and I have urged this upon him on a number of occasions – to obtain legal representation and to proceed with his appeal expeditiously.
It seems to me that as the matter is now before the Supreme Court under the notice of appeal, the question of any failure of Mr Ozyjiwsky to properly prosecute his appeal ought to be adjudicated upon by a justice of the Supreme Court. The plaintiff’s position must be reasonably protected. The further formal order that I make are that I reject para.2 of the plaintiff’s interlocutory application of 11 June 2013.
In summary, the formal Orders that I make are as follows:-
Paragraphs 2, 3 and 4 of the plaintiff’s interlocutory application dated 11 June 2013 are dismissed.