Karam v Palmone Shoes Pty Ltd - [2018] VSC 206

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2009 09926

AKRAM KARAM	Plaintiff
v
PALMONE SHOES PTY LTD	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	1 May 2018
CASE MAY BE CITED AS:	Karam v Palmone Shoes Pty Ltd
MEDIUM NEUTRAL CITATION:	[2018] VSC 206

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VEXATIOUS PROCEEDINGS – Extended litigation restraint order – Application to vary or revoke – Application dismissed – Vexatious Proceedings Act 2014 ss 17, 65.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No parties or practitioners appeared
For the Defendant

HIS HONOUR:

Mr Karam is subject to an extended litigation restraint order made by J Forrest J on 20 May 2016 (‘the restraint order’) pursuant to s 17 of the Vexatious Proceedings Act 2014 (‘VP Act’).

The order provided that:

(a) Mr Karam must not continue in, or commence any appeal from, proceeding S CI 2009 9926 against Lennon Mazzeo without leave of the Supreme Court.
(b) Mr Karam must not commence any proceeding, including instituting any appeal, against Lennon Mazzeo without leave of the Supreme Court or the Victorian court or tribunal in which the proceeding is commenced for a period of five years.

The history of the litigation is set out in the judgment of J Forrest J.[1]
[1]Karam v Palmone Shoes Pty Ltd (No 3) [2016] VSC 228.

Section 65(1)(a) of the VP Act entitles Mr Karam to apply to the court to vary or revoke the order, if the court gives him leave to do so. Mr Karam seeks the varying or revocation of the extended litigation restraint order.

Mr Karam sought by applications dated 17 February 2017 and affidavits dated 21 February 2017 leave to continue three other applications which arise from proceeding SCI 2009 09926 or are connected to it, namely:

· leave to continue the appeal against the decision of Associate Justice Lansdowne dated 11 August 2015 (S CI 2009 09926), which was an order made for payment out of funds in court to satisfy a solicitor’s lien;

· leave to continue the appeal against the decision of Associate Justice Wood dated 1 September 2015 (S CI 2010 00791); and

· leave to appeal the judgment of Associate Justice Lansdowne dated 22 December 2016 (S CI 2011 03123) which is a negligence action against his former solicitors.

I decided that Mr Karam’s appeal against the order of Associate Justice Wood was not subject to the litigation restraint order and considered and dismissed the appeal.[2] I considered that Mr Karam’s application to vary or revoke the litigation restraint order should be considered next before the other two applications.
[2]Karam v Lennon Mazzeo [2017] VSC 756.

Pursuant to s 66 of the VP Act, I determined Mr Karam’s application without notice to any other party or person. Under s 71, the court may determine the substantive application on the basis of written submissions and I adopted…

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: [2018] VSC 206
Decision Date: 1 May 2018

CaseChat Overview and Summary

The applicant, Karam, applied to vary or revoke an extended litigation restraint order made against him under the Vexatious Proceedings Act 2014. The application was dismissed by the court, which found that Karam had not demonstrated a sufficient basis for the order to be varied or revoked. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether Karam had satisfied the requirements under the Vexatious Proceedings Act 2014 for the extended litigation restraint order to be varied or revoked. The court considered whether Karam had demonstrated a sufficient change in circumstances or provided compelling reasons for the order to be altered, given the purpose of the legislation to protect defendants from vexatious litigation.

The court examined the evidence presented by Karam and found that it did not meet the threshold for a change in circumstances or provide a compelling reason to vary or revoke the order. The court emphasised that the Vexatious Proceedings Act 2014 is designed to prevent and manage vexatious litigation, and the applicant's past conduct and ongoing behaviour supported the continued application of the restraint order. Consequently, the application was dismissed, and the extended litigation restraint order remained in place.

No additional orders were made by the court beyond the dismissal of the application.

Orders