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Karam v Palmone Shoes Pty Ltd

Karam v Palmone Shoes Pty Ltd

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Case Copied 15 May 2012 23 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2011 0112
AKRAM KARAM	Appellant
v
PALMONE SHOES PTY LTD & ANOR	Respondents

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JUDGES	NETTLE and OSBORN JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	15 May 2012
DATE OF JUDGMENT	15 May 2012
MEDIUM NEUTRAL CITATION	[2012] VSCA 97
JUDGMENT APPEALED FROM	(Unreported, Supreme Court of Victoria, Practice Court, 20 July 2011, Macaulay J)

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PRACTICE AND PROCEDURE – Appeal – Leave to appeal – Interlocutory order – Summary dismissal of application for judicial review of Magistrate’s rejection of application for summary judgment – No application for leave to appeal – Appeal dismissed as incompetent – Adjournment – Application to set aside listing, in effect for adjournment – Relevance of effect of proposed adjournment on court resources and competing claims by litigants in other cases – Little v State of Victoria [1998] 4 VR 596, applied; Sali v SPC Ltd (1993) 116 ALR 625; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, referred to.

COSTS – Self-represented appellant not present in court – Multiple applications in matters of practice and procedure – Applications all hopeless – Whether appropriate to award indemnity costs – Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd (1988) 81 ALR 397, referred to.

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Appearances:	Counsel	Solicitors
For the Appellant	No Appearance
For the First Respondent	Ms R N Annesley	Minter Ellison

NETTLE JA

OSBORN JA:

Today, in this proceeding, there are four matters before the court for consideration. The first is a Notice of Appeal dated 29 July 2011 which purports to give notice of an appeal from an order of Macaulay J made on 20 July 2011. By that order, his Honour dismissed an appeal from an order of Associate Justice Daly made on 3 June 2011. The effect of Associate Justice Daly’s order was to dismiss the appellant’s application by Originating Motion dated 12 April 2011 for judicial review of the judgment and orders of Magistrate Wright given and made in the Magistrates’ Court at Melbourne on 27 May 2010. The Notice of Appeal was listed by the Registrar for mention today in order to afford the appellant an opportunity to seek leave to appeal if so advised. The decision thus to list the matter was advised to the appellant by letter from the Registry to the appellant dated 23 April 2012, which was signed by Legal Officer Nicole Bristow on behalf of the Registrar.

Secondly, there is an application made by summons dated 4 May 2012 to set aside the decision of the Registrar to list the Notice of Appeal for mention today.

Thirdly, there is an application by summons dated 7 May 2012 to set aside an order of Cavanough J made on 27 April 2012, by which his Honour dismissed as incompetent an appeal from an order of Associate Justice Randall of 27 March 2012, of which the effect was to uphold a decision of the Registrar…

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] VSCA 97
Decision Date: 15 May 2012

CaseChat Overview and Summary

The matter of Karam v Palmone Shoes Pty Ltd involved the appellant, Karam, who sought to appeal an interlocutory order that dismissed his application for judicial review of a magistrate's decision. The application for judicial review itself pertained to the magistrate's rejection of Karam's application for summary judgment against Palmone Shoes Pty Ltd. The court had to consider whether the appeal was competent and, if so, whether to award indemnity costs to the respondent, given the appellant's multiple hopeless applications. The case was heard in the relevant appellate court where the appellant was represented by himself but did not appear in court.

The primary legal issues before the court were whether the appeal was competent and, if not, whether the court should award indemnity costs to the respondent due to the appellant's self-represented status and the futility of his applications. The court had to determine whether the appeal was competent in light of the appellant's failure to apply for leave to appeal, and if it was not, whether the circumstances warranted an award of indemnity costs under the precedent set by Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd.

The court found that the appeal was incompetent as the appellant had not applied for leave to appeal the interlocutory order, a requirement under the relevant rules of court. The court applied the principles from Little v State of Victoria and Sali v SPC Ltd, concluding that the appeal was not properly before the court. Furthermore, the court considered whether to award indemnity costs, referencing Aon Risk Services Australia Ltd v Australian National University and Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd. Given the multiple hopeless applications and the appellant's self-represented status, the court found it appropriate to award indemnity costs to the respondent.

Consequently, the appeal was dismissed as incompetent. The court also ordered that indemnity costs be awarded to the respondent, Palmone Shoes Pty Ltd, reflecting the futile nature of the appellant's applications and his status as a self-represented litigant.

Orders