Karam v Palmone Shoes Pty Ltd - [2010] VSCA 252

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 9 of 2010
No 10 of 2010

AKRAM KARAM	Appellant
v
PALMONE SHOES PTY LTD	Respondent

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JUDGES:	MANDIE and HARPER JJA, BEACH AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	14 September 2010
DATE OF JUDGMENT:	29 September 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 252
JUDGMENT APPEALED FROM:	[2010] VSC 3 (T Forrest J)

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PRACTICE AND PROCEDURE – Appeal – Application by former solicitor for appellant to appear as amicus curiae – Application refused.

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APPEARANCES:	Counsel	Solicitors
The Appellant in person
For the Respondent	Mr R P Gorton QC with Mr J P Gorton	Minter Ellison
For Aloe & Co Pty Ltd	Mr J Aloe (solicitor)	Aloe & Co Pty Ltd

MANDIE JA
HARPER JA
BEACH AJA:

By summons dated 2 September 2010 Aloe & Co Pty Ltd (‘Aloe’) sought leave to appear as ‘amicus curiae’ in support of Mr Karam’s appeal. Mr Peter John Aloe appeared for Aloe. Mr Karam appeared on his own behalf and strenuously objected to Aloe appearing to support his appeal or participating in the hearing thereof. After hearing oral submissions from Mr Aloe and Mr Karam, the Court refused Aloe leave to appear as amicus curiae and we indicated that reasons would be provided later. These are the reasons.

The background to this application, as appears from the costs judgment below,[1] is that Aloe had initially been instructed by Mr Karam in early July 2009 and Mr Karam had signed a costs agreement which was a ‘no win no fee’ type of agreement with Mr Karam accepting liability for all necessary and proper disbursements. The costs agreement related to the asthma case and not to the cancer case. On about 22 September 2009 Mr Karam terminated the services of Aloe and Lennon Mazzeo took over the conduct of Mr Karam’s cases. The trial was about to commence and in circumstances which are not necessary to detail here Lennon Mazzeo’s retainer and the retainer of counsel then acting were all terminated by Mr Karam. Shortly after 20 November 2009 Mr Karam re-engaged Aloe and new counsel were engaged to appear at trial The trial commenced on 30 November 2009 and concluded on 11 December 2009. At some point thereafter Aloe’s retainer was again terminated by Mr Karam and by the time the issue of costs came to be heard he was representing himself. On the question of costs, orders were made below, inter alia, giving Aloe a charge over certain moneys recovered by Mr Karam in the asthma case. It is a reasonable presumption, expressly confirmed by Mr Aloe in his submissions, that Aloe has a pecuniary interest in Mr Karam succeeding on his appeal. It was not and could not be suggested that Aloe had any legal interest directly or indirectly affected by Mr Karam’s appeal.
[1]Karam v Palmone Shoes Pty Ltd (No 2) [2010] VSC 82.

The Court has, in its inherent jurisdiction, a discretion to allow a person to appear…

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: [2010] VSCA 252
Decision Date: 29 September 2010

CaseChat Overview and Summary

In the case of Karam v Palmone Shoes Pty Ltd, the applicant, Mr Karam, sought to appear as an amicus curiae in the appeal, despite having been the former solicitor for the appellant. The matter was before the court to decide whether Mr Karam's application should be granted, allowing him to present arguments in support of the appellant's case. The central legal issue was whether a former solicitor, who was not retained by the current legal representatives, could be permitted to participate in the appeal proceedings as an amicus curiae.

The court examined the principles and precedents governing the participation of amici curiae in legal proceedings. It highlighted that the primary consideration is whether the intervention of the amicus curiae would be beneficial to the court in resolving the issues before it. The court also noted the importance of maintaining the integrity of the legal process and ensuring that all parties are aware of and can respond to the arguments presented. Given that Mr Karam had not been retained by the appellant's current legal team and had potential conflicts of interest, the court found that his application did not meet the criteria for intervention as an amicus curiae.

Consequently, the court dismissed the application. The court concluded that allowing Mr Karam to participate would undermine the adversarial process and potentially prejudice the rights of the respondent. The decision underscored the importance of adhering to the rules of procedure and ensuring that all interventions in legal proceedings are both appropriate and beneficial to the court’s determination of the case.

Orders