Karam v Palmone Shoes Pty Ltd

[2014] VSC 378

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

S CI 2009 09926

AKRAM KARAM	Appellant
v
PALMONE SHOES PTY LTD (ACN 005 663 141)	Respondent

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 July 2014
DATE OF JUDGMENT:	17 July 2014 (revised)
CASE MAY BE CITED AS:	Karam v Palmone Shoes Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 378

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APPEAL – Decision of Associate Justice – Dismissal of application for payment out of moneys paid into court pursuant to order of Judge – Associate Justice bound by order.

ADMINISTRATIVE LAW – Alleged failure to provide reasons – Alleged failure to provide procedural fairness – Grounds not established – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent For Lennon Mazzeo	Ms E Cannon (solicitor) Mr D Begg (solicitor)	Minter Ellison Lennon Mazzeo

HIS HONOUR:

1. Mr Akram Karam appeals against an order of Associate Justice Zammit made on 8 May 2014, dismissing his application dated 6 January 2014. That application was for an order for payment out to him of funds held in court. He states in that application of 6 January 2014 that he is applying for an order that the award of damages in this proceeding — which award was paid into the Funds in Court Office and held in the Senior Master’s Fund — be paid to him in order for him to be able to appoint a lawyer to act on his behalf in matters in the Supreme Court, the Court of Appeal and the Magistrates’ Court. He has been put on a waiting list for eye surgery due to the blackout in his eye and this makes it very difficult for him to represent himself. He states that the order made by T Forrest J on 23 February 2010 to pay the order for damages into court to be held by the Senior Master pursuant to s 113(1) of the Supreme Court Act 1986 (Vic) was wrong, unreasonable and caused prejudice and injustice when:

(a)it did not comply with s 113 of the Supreme Court Act 1986 (Vic), in particular that Mr Karam obviously was not a disabled person within the meaning of s 66(3) of the Guardianship and Administration Act 1986 (Vic);

(b)T Forrest J was in error in principle in making the orders dated 23 February 2010 in awarding Lennon Mazzeo and Aloe & Co Pty Ltd a lien over the proceeds of the judgment sum in this proceeding. 

1. Mr Karam’s application then proceeds in considerable detail to make a case as to why neither Lennon Mazzeo nor Aloe & Co were entitled to a lien over the judgment sum in this proceeding. 

1. Her Honour Associate Justice Zammit dismissed Mr Karam’s application on 8 May 2014.  The Notice of Appeal, again, restates the errors that are alleged to have been made by T Forrest J.  It then alleges that Zammit AsJ failed to provide any reasons to justify her decision in dismissing the application, and that Her Honour’s order was against natural justice and procedural fairness, and:

(a)Her Honour based her decision on no evidence provided by the respondent, Lennon Mazzeo or Aloe & Co, and her decision was contrary to Mr Karam’s evidence that he provided at the hearing on 8 May 2014;

(b)Her Honour acted partially and against the fair hearing rule, which is an element of the principle of natural justice and procedural fairness, when Her Honour unreasonably did not give Mr Karam adequate time when he asked her to provide his submission in evidence, which was difficult for him to do in that short time due to his poor vision and the blindness of his left eye, and his request was ignored by Her Honour.

1. Mr Karam seeks to have the Associate Justice’s decision set aside and that his application be allowed and he seeks orders for costs.  As an appellant, Mr Karam has to show that Her Honour’s order was the result of error.  I should state that the appeal was opposed by a solicitor, Mr Begg, for Lennon Mazzeo.  Mr Aloe of Aloe & Co, the other relevant firm, has written to the court advising that he has only recently been discharged from hospital and requested that he be excused from appearing today and that Aloe & Co will abide by any decision made by the court in this matter. 

1. The gist of the complaint that has brought this appeal before the court derives from the order of T Forrest J in 2010 and in particular its provisions which deal with the rights of Lennon Mazzeo and Aloe & Co to obtain costs from the moneys awarded to Mr Akram.  I am informed that pursuant to His Honour’s order, the moneys were paid into court and now total a sum of approximately $200,000.  Lennon Mazzeo has had its costs taxed in the sum of some $106,000. 

1. Subsequent to Zammit AsJ’s decision, the Court of Appeal heard Mr Karam’s appeals.  Amongst the matters that were before the Court of Appeal were appeals by leave against the costs orders made by T Forrest J in the two proceedings which have been called the asthma proceedings and the cancer proceedings.  The Court of Appeal dismissed the appeals against those costs orders: Karam v Palmone Shoes Pty Ltd.[1]  Mr Karam informs me that he has filed an application to the High Court seeking special leave to appeal against the Court of Appeal’s decision.  However, I am bound by the Court of Appeal’s judgment.

   [1][2014] VSCA 148.

1. I can detect no error in the approach of Zammit AsJ on 8 May 2014.  An appeal was pending against T Forrest J’s order in the Court of Appeal, but Zammit AsJ was required to apply His Honour’s order.  Her Honour could not have validly ordered, in the absence of an agreement, that any money be paid out of court while the appeal to the Court of Appeal was pending.  The Court of Appeal has now dismissed the appeal. 

1. So far as the appeal grounds alleging a failure to give reasons are concerned, nothing has been put to me that suggests that there is any doubt about the correctness of Her Honour’s reasons for her decision.  Her Honour’s approach was clearly that T Forrest J had made an order which was subject to an appeal to the Court of Appeal, but that she was obliged to follow that order. 

1. So far as denial of natural justice and procedural fairness are concerned, I have listened carefully to Mr Karam’s submissions this morning, both in the first instance and in reply.  The issue that Her Honour was required to determine was clear enough, and the application that Mr Karam had filed and which was before Her Honour clearly stated his case over 11 pages.  I am therefore not persuaded that Mr Karam has established any denial of natural justice.

1. For those reasons, I dismiss the appeal that is dated 26 May 2014 but was filed on 30 May 2014.

1. Application has been made by Palmone Shoes and by Lennon Mazzeo for an order for costs of the appeal.  In respect of Lennon Mazzeo, I see no reason why they should not receive costs.  Palmone Shoes, having been served with the notice of appeal, is also entitled to its costs.

Order

(1)       The appeal is dismissed.

(2)The appellant is ordered to pay the costs of Palmone Shoes Pty Ltd and Lennon Mazzeo.

(3)No order as to costs of Aloe & Co Pty Ltd.

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