Karam v Palmone Shoes Pty Ltd

[2012] VSCA 97

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:

1. 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.  

1. 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.

1. 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 to exclude from the proposed contents of the Appeal Book the transcript of the hearing before Macaulay J on 20 July 2011.

1. Fourthly, there is a summons dated 10 May 2012, which in effect augments the application of 4 May 2012 to set aside the Registrar’s decision to list the Notice of Appeal for mention today, and also seeks alternative directions.

Notices of Advice and Objection

1. The appellant is self-represented and, despite being on notice that all three matters would be listed for hearing today, and filing affidavits and written submissions in support of his applications, he has chosen to absent himself from the hearing.  On 7 May 2012, he filed in the Registry a ‘Notice of Advice’ in which he stated that:

there will be no attendance by the Appellant Akram Karam on 15 May 2012 due to the filing of an application by the Appellant in the Court of Appeal on 4 May 2012 to set aside the irregular directions which was issued [sic] by the Legal Officer Nicole Bristow on 23 April 2012, in which the decision of the legal officer to list a hearing on 15 May 2012 was erroneous and does not have any basis, as I stated in my application dated 4 May 2012 and the accompanied [sic] affidavits in support.  

1. On 14 May 2012, he filed a further ‘Notice of Objection’ in which he asserted that he was taken by surprise when on 14 May 2012 he received from the respondent an outline of submission which anticipated the need for the appellant to seek leave to appeal and in which the respondent advanced arguments in support of the respondent’s contention that leave should be refused.  He also complains that, despite making a written request to the Registry by letter of 11 May 2012 for ‘reasonable time’ in which to prepare a written submission in support of his application to set aside the Registry’s decision to list the matter for hearing today, he was not granted further time.  In the notice he contends that, because the Registry decision not to give him further time in which to prepare such a submission was unreasonable, he does not propose to appear.

1. It will be convenient to return to those objections later in these reasons.

Chronology of events

1. To put the applications in context, it is necessary to understand something of the history of the matter.  We shall endeavour to state it briefly:

·     

By Complaint and Summons dated 10 December 2008 the appellant instituted a proceeding in the Magistrates’ Court at Melbourne against the first respondent (‘Palmone Shoes’) claiming compensation by way of

weekly payments for medical expenses, pursuant to ss 82(6), 86(1) and 87 of the Accident Compensation Act 1985.

·     On 5 March 2009, which is to say out of time for the filing of a defence, Palmone Shoes filed a defence to the Complaint and on 22 February 2010 it filed an amended defence.

·     On 12 and 14 May 2010, respectively, the appellant made applications for orders ‘granting liability for compensation’ and striking out Palmone Shoes’ Defence.

·     On 27 May 2010, those applications came on for hearing before Magistrate Wright.  His Honour treated them as an application for judgement in default of defence and an application to strike out the defence as not disclosing a defence.  He then dismissed the application for judgment in default of defence because a defence had been filed and dismissed the application to strike out the defence because he considered that the defence was adequately pleaded in the circumstances which obtained. 

·     Some six months later, the appellant requested written reasons and shortly after that, Magistrate Wright provided written reasons for those orders dated 10 December 2010.

·     On 12 April 2011, the appellant filed an Originating Motion and summons seeking judicial review by way of an order in the nature of certiorari to quash Magistrate Wright’s decision not to strike out Palmone Shoes defence.

·     On 2 May 2011, Associate Justice Mukhtar granted the appellant leave to file and amended Originating Motion and adjourned the further hearing of the summons to 3 June 2011.

· On 23 May 2011, Palmone Shoes filed a summons seeking orders that the Originating Motion be dismissed pursuant to Rule 23.01(1)(a) of the Supreme Court (General Civil Procedure) Rules 2005 or, alternatively, pursuant to s 63 of the Civil Procedure Act 2010.

· On 3 June 2011, the appellant’s summons and Palmone Shoes’ applications came on for hearing before Associate Justice Daly. Her Honour dismissed the application for judicial review pursuant to s 63 of the Civil Procedure Act.

·     On 5 July 2011, the appellant filed a notice of appeal from her Honour’s orders to the Judge in the Practice Court.

· On 19 July 2011, the appeal came on for hearing before Macaulay J in the Practice Court. On 20 July 2011, his Honour dismissed the appeal pursuant to s 63 of the Civil Procedure Act and published his reasons therefor.

·     On 29 July 2011, the appellant filed his notice of appeal against the orders of Macaulay J of 20 July 2011.  The grounds of appeal stated in the notice are that the judge erred in (a) not stating the rule on which Associate Justice Daly relied; (b) not stating the rule under which the Originating Motion was dismissed; and (c) not finding that the appellant was entitled to relief in the nature of certiorari.

·     On 12 October 2011, the Registrar made directions for the conduct of the appeal and, on 19 October 2011, he delivered written reasons for those directions.

·     On 27 October 2011, the appellant filed a notice of appeal against the Registrar’s directions as to the contents of the appeal book.

· On 27 March 2012, Associate Justice Randall heard the appeal pursuant to s 113M of the Supreme Court Act 1986, and dismissed it.

·     On 16 April 2012, the appellant filed a notice of appeal to the judge in the Practice Court against the orders of Associate Justice Randall.

·     On 23 April 2012, the Registrar’s letter of that date was sent to the appellant advising him of the possible need to seek leave to appeal against the orders of Macaulay J and that the matter would be listed before this court on 15 May 2012 to permit the appellant to make such application for leave as he may be advised.  The letter referred to the relevant authorities and provided substantial guidance as to the issues which may be relevant.

·     On 27 April 2012, the appeal from the orders of Associate Justice Randall came on for hearing before Cavanough J in the Practice Court and, on the same day, his Honour dismissed the appeal as incompetent.

·     On 4 May 2012, the appellant filed his summons of that date seeking to set aside the Registrar’s decision to list the appeal from the order of Macaulay J for mention today.

·     On 7 May 2012, the appellant filed his summons of that date seeking to set aside the orders of Cavanough J of 27 April 2012.

·     On 10 May 2012, the appellant filed his summons of that date seeking directions in lieu of this mention of the Notice of Appeal.

Summons of 4 May 2012

1. It is convenient to deal first with the application made by summons filed 4 May 2012 to set aside the Registrar’s decision to list the notice of appeal for mention today in order to allow the appellant an opportunity to apply for leave to appeal if so advised.

1. As appears from the appellant’s affidavit sworn 10 May 2012, the application filed 4 May 2012 proceeds from the appellant’s concern over the exclusion from the proposed contents of the appeal book of the transcript of the hearing before Macaulay J on 19 July 2011.  Evidently, the appellant considers that the dispute as to the contents of the appeal book should precede any consideration of an application for leave to appeal.  Thus, the appellant contends that the appeal from Cavanough J’s orders of 27 April 2012 should be heard and determined before the court considers the application for leave to appeal from the orders of Macaulay J.  On that basis, he submits that the Registrar was in error in listing the matter today for the hearing of the application for leave to appeal.

1. We do not consider that the Registrar was in error in listing the matter for mention today.  If the appellant were in any way prejudiced by the listing, the court would entertain an application for adjournment.  But plainly there is no prejudice.  If it were necessary for the court to view transcript in order to determine an application for leave to appeal, the court would view the transcript whether or not it was included in the appeal book.  There is, however, not the slightest reason to think that it is necessary to view any transcript before determining an application for leave to appeal.  The court has Macaulay J’s reasons for judgment and the appellant’s grounds of appeal, and it is clear from the latter that there is no suggestion of any disconformity between the reasons and what occurred at the hearing.  As has been seen, the grounds of appeal are all directed to alleged legal error on the part of the judge in matters of principle not dependent on fact.  Understandably, the appellant does not refer in his affidavits to any part of the transcript on which he would seek to rely for the purposes of obtaining leave to appeal of the appeal itself.  For present purposes, it is irrelevant.

1. It follows, in our view, that the application is misconceived and should be dismissed.

Application of 7 May 2012

1. We turn next to the application of 7 May 2012 to set aside the orders of Cavanough J of 27 April 2012.

1. In his affidavit in support of the application, the appellant contends that the hearing of this summons should be adjourned until after the hearing and determination of the summons of 4 May 2012.  His reasons for that appear to be the same as for seeking to have the hearing of the summons of 4 May 2012 precede the hearing of any application for leave to appeal from the orders of Macaulay J of 20 July 2011.  For the reasons which we have given, we consider that his concerns are misplaced.  In any event, the summons of 4 May 2012 may now be regarded as having been heard and determined.

1. There being no basis for the deferral of the hearing and determination of the summons of 7 May 2012, it is appropriate to deal with it now. As we have said, the application is to set aside the orders of Cavanough J of 27 April 2012 to dismiss as incompetent the appeal from the orders of Associate Justice Randall. Cavanough J so dismissed the appeal because s 113M of the Supreme Court Act 1986 provides that the Court of Appeal constituted by a Judge of Appeal or an Associate Judge may direct that the hearing and determination of a proceeding by the Court of Appeal constituted by a Judicial Registrar be reviewed by the Court of Appeal constituted by a Judge of Appeal or an Associate Judge.

1. His Honour was right to dismiss the appeal.  In making the orders of 27 March 2012, Associate Justice Randall comprised the Court of Appeal and, therefore, any appeal from his orders lay only to the Court of Appeal comprised of a Judge of Appeal or an Associate Justice.  Cavanough J was not a Judge of Appeal or an Associate Justice and, on any analysis, he did not comprise the Court of Appeal.  He had no jurisdiction to entertain the appeal and for that reason it was incompetent.

1. In case it matters, however, we add that any appeal from the orders of Associate Justice Randall would have been bound to fail on the merits.  As we have said, the transcript of hearing was irrelevant to the hearing of the appeal and, consequently, there was nothing even arguably wrong with his Honour’s decision to exclude it from the proposed contents of the appeal book.

Notice of appeal dated 29 July 2011 

1. We turn finally to the notice of appeal of 29 July 2011 against the order of Macaulay J of 20 July 2011, by which his Honour dismissed the appellant’s appeal from Associate Justice Daly’s order of 3 June 2011.  It will be recalled that Associate Justice Daly dismissed the appellant’s application for judicial review of the orders of Magistrate Wright

1. The first question is whether the order of Associate Justice Daly was an interlocutory order and, therefore, whether the order of Macaulay J was an interlocutory order. If it were, the appellant must obtain leave to appeal under s 17A(4)(b) of the Supreme Court Act 1986 and so demonstrate that the judge’s decision is attended by sufficient doubt and that, if wrong, would be productive of such injustice as to warrant the grant of leave to appeal.[1]

   [1]Niemann v Electronic Industries Ltd [1978] VR 431.

1. In Little v State of Victoria,[2] the court comprised of Callaway and Buchanan JJA held that an order dismissing a proceeding because no reasonable cause of action was disclosed was an order in an interlocutory application and that, because leave to appeal from such an order was required by s 17A(4)(b) of the Supreme Court Act 1986, an appeal brought without leave should be dismissed as incompetent.

   [2][1998] 4 VR 596.

1. In his reasons for judgment, Callaway JA essayed the apparent tension between the decisions of the Privy Council in Tampion v Anderson[3] and of the High Court in Licul v Corney,[4] and the decision of the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No 1).[5]  In Tampion v Anderson and Licul v Corney, it was held that an order dismissing a proceeding as frivolous or vexatious or as disclosing no reasonable cause of action is to be treated as interlocutory.  In Anshun, it was held that an order forever staying a proceeding as an abuse of process, in face of a Henderson v Henderson[6] estoppel, is a final decision.  In point of principle, it is hard to discern the difference.  As Callaway JA observed, however, the High Court in Anshun declined to say that Tampion v Anderson was inconsistent with its own decisions as to the distinction between interlocutory and final orders, and the New South Wales Court of Appeal concluded in Wickstead v Browne[7] that, despite Anshun, an order dismissing a proceeding as frivolous or vexatious or as disclosing no cause of action is an interlocutory order.  On that basis, Callaway JA reasoned, and Buchanan JA agreed, the court should not depart from Tampion v Anderson.

   [3](1973) 3 ALR 414.

   [4](1976) 180 CLR 213.

   [5](1980) 147 CLR 35.

   [6](1843) 3 Hare 100; [1843–60] 67 ER 313.

   [7](1992) 30 NSWLR 1.

1. Since Little was decided, it has been followed in this court without exception.[8]  Consequently, whatever doubts there may be about it, there is no doubt that we should follow it.[9]

   [8]See for example Puttick v Fletcher Challenge Forests Pty Ltd (2007) 18 VR 70, 95 [95] (Chernov JA); Australian Securities and Investments Commission v Lindberg (No 2) (2010) 26 VR 355, 360 [21] (Maxwell P, Buchanan and Weinberg JJA); Manderson M &F Consulting (a firm) v Incitec Pivot Ltd [2011] VSCA 444, [11] (Redlich JA, Judd AJA).

   [9]Green v R (2011) 283 ALR 1, 24 [83]–[88] (Heydon J) in diss but not in point of principle.

1. Accordingly, we turn next to the question of whether the judgment of Macaulay J is attended by sufficient doubt to warrant the grant of leave to appeal.  We do not think that it is. 

1. In rejecting the appeal from the Associate Justice’s decision, Macaulay J said this:

The Magistrate decided as follows;  first, although the defence was filed late, namely beyond the stipulated 21 days, it had nevertheless been filed before any application for judgment in default of defence was made.  Thus, there was no basis at the time of hearing for entry of judgment in default of defence.  That decision was undoubtedly correct and discloses no possible jurisdictional error.

Secondly, Mr Karam argued the defence as filed should be struck out as some paragraphs contained simple denials, in breach of the rules of court requiring reasons for denying facts.  The Magistrate rejected the argument for the reasons he gave.  That was a decision properly within his jurisdiction to decide, and discloses no possible jurisdictional error.

Thirdly, Mr Karam argued that because some matters were denied or not admitted, Palmone Shoes should be prevented from adducing evidence at trial.  In some respects that argument was premature, coming before trial.  Nevertheless, the Magistrate answered that argument in a satisfactory way and there is no possible jurisdictional error disclosed by it.

Fourthly, Mr Karam argued that there should be summary judgment in his favour because, (1) the essential facts on which his claim depended had been either admitted or proved in the Supreme Court trial and, (2), regarding the issue of causation, he argued it did not have to be proven because the provisions of ss 86(2) and 87 of the Accident Compensation Act foreclosed the need to do so, and the Supreme Court was wrong in rejecting his arguments about those provisions.  The Magistrate correctly identified the test for summary judgment, that is, that it should only be granted if it was clear there was no real question to be tried.  After examining the transcript of the Supreme Court proceeding, the learned Magistrate rejected the argument that causation had either been admitted or proved.  Clearly, he found that there was a real question to be tried.  That decision was plainly within the Magistrate’s jurisdiction to decide and there was no possible jurisdictional error in him refusing that application.

Mr Karam’s arguments in this Court essentially attacked these four decisions in a variety of different ways.  He also attacked other peripheral comments by the Magistrate which were not germane to the decisions.  Many of his arguments are only appropriate for a conventional appeal, not a judicial review.  I do not propose to deal with the detail of every argument, but, as to that detail, I generally agree with each of the submissions put by Ms Annesley and with the submissions made by her in writing.[10]

[10]Reasons, [14]–[18].

1. Subject to only one exception, we agree with his Honour.  The exception is that the fact that the defence was filed late was not necessarily a bar to the entry of judgment in default of defence.  Rather, where a plaintiff has applied for judgment in default of defence, and proved that a defence was not filed in time, but it appears that the defendant has served a defence out of time, the court has a discretion to refuse to give judgment.[11]  Strictly speaking, it was incumbent on the respondent to provide an explanation for its delay in filing its defence and to seek an extension of time in which to file it.[12]  In effect, Magistrate Wright short cut correct procedure, albeit in order to achieve the same result, and in a sense that was arguably an error.

   [11]Charles v Shepherd [1892] 2 QB 622, 624; Gills v Woodfin (1884) LR 25 Ch D 707, 709; Gibbings v Strong (1884) LR 26 Ch D 66, 69; Bailey and Arthur, Civil Procedure in Victoria, [21.03].

   [12]Wiedenhofer v Commonwealth (1970) 172 CLR 172, 174 (Gibbs J).

1. If so, however, it was an error of law made within jurisdiction and, just as importantly, there is no reason to think that it was productive of substantial injustice.  As the rest of the Magistrate Wright’s and Macaulay J’s reasons serve to show, the appellant has not established that the defence is frivolous or vexatious or otherwise deficient and, consequently, if an extension of time in which to file the defence had been sought, it is to be assumed that it would have been granted.

1. To that may be added that there is no risk of any injustice to the appellant; for he is free to prosecute his claim in the Magistrates’ Court to judgment.

1. There is then the question of summary judgment. Since the coming into force of s 63 of the Civil Procedure Act 2010, the test for summary judgment in favour of a plaintiff in a civil proceeding has been whether a defence or part of it ‘has no real prospect of success’. In terms, it is a little different to the criterion under Rule 22.02 of the Supreme Court (General Civil Procedure) Rules 2005, of whether the defendant has no defence.  But the change in terms was not intended to establish a new or different test; rather to express more accurately the way in which the rule had been interpreted by the courts.  It remains, as the High Court said in Fancourt v Mercantile Credits Ltd,[13] that the power to order summary judgment is to be exercised sparingly and not ‘unless it is clear that there is no real question to be tried’.  Accordingly, we agree with the judge that the Magistrate correctly identified the test for summary judgment as being that it should only be granted if it is clear there is no real question to be tried. 

   [13](1983) 154 CLR 87, 99.

1. In this case, there is a real question to be tried.  The appellant’s statement of claim in the Magistrates’ Court proceeding alleges that he suffered plasmacytoma (a form of myeloma) in the region adjacent to the left kidney and that it was caused by his employment with the respondent.  In September 2009, the proceeding was adjourned sine die pending resolution of Supreme Court proceedings in which the appellant was making a similar claim against the respondent.  That claim was decided against the appellant by T Forrest J on 18 January 2010 and his Honour’s judgment was upheld on appeal to this court.  As Magistrate Wright observed, that may be enough in itself to provide a good defence.  There are, however, also a number of other considerations which support that conclusion and they are set out in detail in the Magistrates’ very carefully and clearly constructed reasons for judgment.

1. So to say is not to conclude that the issues which apply to the appellant’s claim for weekly payments are necessarily the same as those which were the subject of T Forrest J’s judgment.  In the first instance, that will be a question for the Magistrate to decide.  But, upon any realistic analysis, there is such an overlap of issues as between the claims as to mean that there is at least a real question to be tried. 

Conclusion and orders

1. Earlier in these reasons, we referred to the appellant’s notice of advice and notice of objection.  About those, there are five points to be noted.  First, the appellant has been on notice since 23 April 2012 that the reason for the matter being listed today was because it was considered that there could be no appeal without leave and that the point of the listing was to afford him an opportunity to make submissions about that and, if so advised, to apply for leave to appeal.  Secondly, by the Registry letter of 23 April 2012, the appellant was explicitly referred to the relevant authorities, so that he would be under no doubt as to what the application involved or as to the considerations which it would entail.  Thirdly, although the appellant has been on notice since 23 April 2012 that the matter was listed for hearing today, he did not before yesterday ever suggest that he had less than reasonable time in which to prepare his submissions; and in fact he prepared written submissions and filed them well in advance of the hearing of the matter.  Fourthly, nothing said in the respondent’s outline of argument takes the matter any further in terms of legal analysis than was advised in the Registrar’s letter of 23 April 2012; and, therefore, nothing advanced in the respondent’s outline of argument requires anything further by way of submission in reply than was presaged in the Registrar’s letter of 23 April 2012.  Fifthly, given the misconception on which the application to set aside the listing is based, there is nothing further which might be said which could possibly lead to a different result.  Finally, having regard to the High Court’s decision in Sali v SPC Ltd[14] and its more recent reaffirmation of that judgment in Aon risk Services Australia Ltd v Australian National University,[15] it is relevant to bear in mind the effect of any adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court.  

   [14](1993) 116 ALR 625.

   [15](2009) 239 CLR 175.

1. All things considered, we see no need still less justification for adjourning the question of leave to appeal to another day.  It should be dealt with now.  We shall refuse leave to appeal and dismiss the appeal as incompetent.  In the result, the order of Associate Justice Daly will be affirmed with the effect that there will be summary judgment for the respondent and the proceeding will be at an end.

Costs

1. There is then the question of costs.  In our view, the appellant should pay the respondent’s costs of each of the applications.  If the appellant were present, we should also be minded to consider an application that those costs be taxed and paid on a solicitor and own client or indemnity basis. 

1. As Woodward J said in Fountain Selected Meats (Sales) Pty Ltd v International Produce Merchants Pty Ltd:[16]

… it is appropriate to consider awarding ‘solicitor and client’ or ‘indemnity’ costs, whenever it appears that an action has been commenced or continued in circumstances where the appellant, properly advised, should have known that he had no chance of success.  In such cases the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.  Such cases are, fortunately, rare.  But when they occur, the court will need to consider how it should exercise its unfettered discretion.

[16](1988) 81 ALR 397, 401; Sommerville Retail Services Pty Ltd v Victoria Workcover Authority (No 2), [2011] VSCA 188, [2]–[5].

1. Subject to hearing further argument on the point, it seems to us that each of the applications before us was hopeless and it should have been apparent to the appellant that they were hopeless. 

1. Of course, the appellant is self-represented and it is perhaps just conceivable that he honestly believed that these applications stood some chance of success.  But even if he did, a self-represented litigant cannot be allowed forever to stand behind the shield of his own ignorance; especially when it continues to subject other parties to cost and inconvenience and to add pointlessly to the load on the court’s already limited resources.  There comes a point at which a self-represented litigant must be required to take responsibility for his choices and, subject to hearing argument on the point, we should have thought that it has well and truly come in this case. 

1. The appellant had the benefit of a reasoned decision from the Associate Justice Daly, which was plainly right.  He had the further benefit of a reasoned decision from Macaulay J, which was in substance also plainly right.  He had the benefit of considerable assistance from the Registry in the form of the letter of 23 April 2012, which in effect he chose to ignore if not repudiate.  He had reasoned decisions from the Registrar and Associate Justice Randall on the contents of the appeal book and he had the benefit of a reasoned decision of Cavanough J, which was also plainly right, on appeal from Associate Justice Randall’s orders.  Despite all that, he brought these matters here for no better reason than to repeat arguments which had been clearly and properly rejected. 

1. That said, it is apparent that the appellant was not given notice of any intention on the part of the respondent to apply for indemnity costs, and it would be unfair to make a special order as to costs without first affording the appellant an opportunity to be heard on the subject.  Since that is not possible on this occasion, we shall order that the respondent’s costs of the application be taxed and paid on a party and party basis.

1. The orders of the court are as follows:

(1)       The appellant’s summons of 4 May 2012 is dismissed.

(2)       The appellant’s summons of 7 May 2012 is dismissed.

(3)       The appellant’s summons of 10 May 2012 is dismissed

(4)       The appellant shall pay the first respondent’s costs of each of the summonses of 4 May 2012, 7 May 2012 and 10 May 2012.

(5)       The appeal instituted by Notice of Appeal dated 29 July 2011, from the order of the Honourable Justice Macaulay which was made herein on 20 July 2011, is dismissed as incompetent.

(6)       The appellant shall pay the first respondent’s costs of the appeal.

(7) There shall be summary judgment in the proceeding for the defendant, Palmone Shoes Pty Ltd, pursuant to s 63 of the Civil Procedure Act 2008.

(8)       The appellant shall pay Palmone Shoes Pty Ltd’s costs of the proceeding.  

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