Gajic v Harb

[2011] VSCA 132

SUPREME COURT OF VICTORIA

COURT OF APPEAL

MICHAEL GAJIC

S APCI 2011 0046

Applicant

v

NABIL HARB and

AMAL HARB

Respondents

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JUDGES:	TATE JA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2011
DATE OF JUDGMENT:	6 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 132
JUDGMENT APPEALED FROM:	Harb & Anor v Eid & Ors [2007] VCC 1792

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PRACTICE AND PROCEDURE – Extension of time within which to appeal from County Court of Victoria – County Court Act 1958 (Vic) s 74(2)(a) – Substantial delay in bringing appeal – Whether the applicant was denied procedural fairness because of a lack of legal representation at trial – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr S Woolley	Lewenberg and Lewenberg

TATE JA:

1. I invite Macaulay AJA to deliver the first judgment in this matter. 

MACAULAY AJA:

1. On 10 January 2008, following reasons published on 18 December 2007, Judge Morrow of the County Court entered judgment against the applicant, Mr Gajic, in favour of the respondents (the plaintiffs below), in the sum of $107,000 together with interest agreed at $44,100.44, and costs.

1. Mr Gajic did not appeal within the 14 days permitted by the County Court Act 1958.[1]  On 7 April 2011 he filed a summons in this court seeking an extension of time within which to file and serve a notice of appeal.  Such application is permitted by s 74(2A) of the Act.

   [1]County Court Act 1958 (Vic) s 74(2)(a).

1. The object of the statutory provision is to give the Court a discretion to extend time with a view to avoiding injustice.[2]  Whilst the factors to be taken into account are not confined, typically the exercise of discretion will involve a consideration of four main factors:[3]

·    the length of the delay

·    the reason for the delay

·    the existence of an arguable case

·    the extent of prejudice that would be suffered by the respondent if leave was granted.

[2]Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257, 262.

[3]Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Jackamarra v Krakouer [1998] 195 CLR 516, 520–521; Phillips v Australian Finance and Leasing Limited [2009] VSCA 256 [4]–[5].

Length of the delay

1. The length of the delay is substantial.  The applicant’s notice of appeal is more than three years out of time.  Such a delay should weigh heavily against the grant of leave unless there are good reasons to explain that length of delay.

Reasons for the delay

1. The applicant does not specifically address the reasons for the delay in seeking to appeal the orders of Judge Morrow.  However, the applicant does note that both he and his wife have suffered illness during the intervening three-year period.  He also claimed to have been sick during the conduct of the trial and indeed before us today, yet he participated in the trial and has made submissions to us today which we have been well able to understand and comprehend.

1. No evidence has been given linking his sickness, or that of his wife, to any inability to lodge a notice of appeal, or earlier application for extension.  The relative paucity of the material filed to initiate this application demonstrates that it was capable of being instigated with very modest effort.

1. Without more substantive evidence relating to these illnesses and the effect the illnesses may have had on the applicant’s capacity to appeal, his reasons for delay are wholly unsatisfactory.

Whether there is an arguable case

1. The applicant denies that he owes money to the respondents, on the basis that the agreement was between the respondents and another of the defendants to the proceeding, Mr George Eid.  More particularly, he claims that the $110,000 paid by the respondents (the foundation of the claim) was paid pursuant to a loan agreement between the respondents and their brother-in-law, Mr Eid.  The applicant denies he was a party to this agreement, and should therefore not be held liable.

1. This argument was considered by Judge Morrow at trial.  His Honour found that the applicant was party to an oral agreement reached between the respondents, on the one hand, and Mr Gajic, Mr Eid and the third defendant, Mr Joseph Nicolazzo, on the other.  His Honour also found that the applicant acknowledged his debt in a letter to the respondents on 15 February 2006.

1. Before us today, Mr Gajic said that there was other evidence he could have presented to Judge Morrow, but failed to do so.  Mr Gajic gave no particular reason for this failure.  Three years after the judgment, and a month after the application to this Court was filed, to raise the possible existence of these other documents now does, in my view, stretch credulity.   

1. But more potently even still, it appears that Mr Nicolazzo, one of the three persons who Judge Morrow regarded as partners and who was also found liable, appealed to this Court.  On 23 April 2009, Ashley, Neave and Dodds‑Streeton JJA dismissed the appeal.[4]  Their Honours said that the evidence supported the learned trial judge's finding that Mr Eid, Mr Gajic and Mr Nicolazzo were partners for the purpose of the development project for which the loan was requested, and that Mr Gajic and Mr Nicolazzo were present during, and acquiesced in, Mr Eid's assertions that each of the partners was an owner of the Seaford land (so founding the misrepresentation allegation).[5]

   [4]Nicolazzo v Harb [2009] VSCA 79.

   [5]Ibid [94].

1. In my view, having regard to all of these matters, the applicant, Mr Gajic, has failed to demonstrate any doubt attending the decision below.

Prejudice to the respondents

1. The respondents were entitled to recover damages from the applicants more than three years ago.  It appears that they have not yet received any money from the applicant.  The impetus for this application may be explained by the apparent fact that, in September 2010, the respondents, through solicitors, caused a creditor’s petition to be served upon the applicant.  Here I refer to information which has been provided to the Court by Mr Gajic himself.  It is unnecessary for me to have regard to the affidavit of Kirenjit Cheema of 2 May 2011 handed to us today, which Mr Gajic says that he did not receive.

1. The respondents have the benefit of the judgment.  It has gone unchallenged for over three years.  It concerns a transaction that occurred in May 2004, now seven years ago.  At least some costs appear to have been incurred in the attempted recovery of judgment.  The material filed by the applicant indicates he is not employed and strongly suggests he may lack the financial means to meet any legal cost orders made in favour of the respondents should an appeal be permitted but ultimately fail.

1. In my opinion, and in view of there being no demonstrated prospects of success on the appeal, it is likely that the respondents would suffer irremediable prejudice should leave be granted.

Other considerations of justice

1. As I have mentioned, the discretion to extend time is given for the sole purpose of enabling the court to do justice between the parties.[6]  One of the grounds upon which Mr Gajic wishes to appeal is that he was not legally represented at the trial before Judge Morrow.

   [6]           Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 [262].

1. By this proposed ground the applicant may be seeking to argue that because of his lack of legal representation, he was denied procedural fairness.

1. In the judgment of Judge Morrow, his Honour states that the applicant ’until very recently had solicitors acting for him but represented himself at the hearing.[7]  No reasons are provided in the judgment, or in the applicant’s submissions in this Court, as to why his solicitors ceased to act for him.

   [7][2007] VCC 1792 [1].

1. In a criminal trial, a right to representation is an important element of the right to a fair trial at common law.[8]  A court has jurisdiction to grant an adjournment

or order a permanent stay of proceedings at a trial until such time as a person charged with a serious offence is provided with legal representation necessary for a fair trial.[9] 

[8]           Dietrich v R (1992) 177 CLR 292.

[9]           Dietrich v R (1992) 177 CLR 292, 311 (Mason CJ and McHugh J).

1. However, as outlined by the High Court in New South Wales v Canellis, ’there is no suggestion that a court could exercise a similar jurisdiction in civil proceedings’.[10]  There is no basis to suppose that by representing himself in the civil trial before Judge Morrow that the applicant was denied procedural fairness.

   [10](1994) 181 CLR 309, 328; see also Elliott v Australian Investment and Securities Commission [2004] 10 VR 369 [162].

1. In my view the application for extension of time is without merit and I would refuse it.

1. Mr Gajic also seeks a stay of execution of the judgment pending appeal.  Since I would not grant leave to appeal, no occasion arises to consider the grant of a stay.

TATE JA:

1. I agree with the reasons of Macaulay AJA.

1. The orders of the Court will be: 

1.        The application for an extension of time is refused.

2.The applicant pay the respondent’s costs of the application fixed at $2,000.

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