Karam v Palmone Shoes Pty Ltd (No 4)
[2024] VSC 527
•30 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S CI 2009 09926
| AKRAM KARAM | Plaintiff |
| v | |
| PALMONE SHOES PTY LTD | Defendant |
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JUDGE: | GRAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 30 August 2024 |
CASE MAY BE CITED AS: | Karam v Palmone Shoes Pty Ltd (No 4) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 527 |
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PRACTICE AND PROCEDURE — Litigation restraint order — Application by plaintiff for leave to continue proceedings — No reasonable grounds — Application dismissed — Vexatious Proceedings Act 2014 ss 3, 17, 52, 53.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented litigant | |
| For the Defendant | Minter Ellison |
TABLE OF CONTENTS
Overview.............................................................................................................................................. 1
Procedural history.............................................................................................................................. 1
Legislative context............................................................................................................................. 4
Consideration of leave to continue application........................................................................... 5
The grounds of the application................................................................................................... 5
Applicable principles.................................................................................................................... 8
Analysis and conclusions............................................................................................................. 9
Ground 1............................................................................................................................... 9
Ground 2............................................................................................................................. 10
Ground 3............................................................................................................................. 11
Ground 4.1.......................................................................................................................... 11
Ground 4.2.......................................................................................................................... 12
Conclusion......................................................................................................................................... 12
HIS HONOUR:
Overview
The plaintiff, when subject to a litigation restraint order, applied for leave to continue an appeal from a decision of an Associate Judge of the Court.
The plaintiff was subject to two litigation restraint orders. The first clearly applied on its terms to the continuation of the appeal, but did not specify a period in which it would remain in force. The second was an extended litigation restraint order perhaps capable of applying to the continuation of the appeal, but expressed to be in force for five years, a period that has now expired.
The leave application has remained on foot for many years. There may still be some utility in deciding it. Mr Karam has acquiesced in the leave application being determined on the papers.
I have decided that leave to continue the proposed appeal should not be granted, because the appeal has no real prospect of success, and is not brought on reasonable grounds. The plaintiff’s leave application will be dismissed.
Procedural history
The history of this proceeding is set out in detail in the judgments of J Forrest J[1] and Lansdowne AsJ.[2] I will not repeat those details, but adopt their Honours’ description of the proceeding and its procedural history. The paragraphs that follow are not intended to be a comprehensive account of everything since those judgments.
[1]Karam v Palmone Shoes Pty Ltd (No 3) [2016] VSC 228.
[2]Lennon Mazzeo v Karam and ors [2015] VSC 433.
By summons dated 20 May 2015, Lennon Mazzeo applied for payment in the sum of $106,123 out of funds held in Court pursuant to the orders of T Forrest J made 23 February 2010 (payment summons). The payment was to meet the taxed costs of Lennon Mazzeo, who acted for Mr Karam against his employer (Palmone Shoes Pty Ltd) in two work injury claims heard by T Forrest J.[3]
[3]Lennon Mazzeo v Karam and ors [2015] VSC 433, [2].
On 20 May 2016, J Forrest J made litigation restraint orders pursuant to the Vexatious Proceedings Act 2014 (VP Act), against Mr Karam. They provided that:
1.Mr Karam must not continue in, or commence any appeal from, proceeding S CI 2009 against Lennon Mazzeo without leave of the Supreme Court.
2.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.
These orders were obtained on an application made by Lennon Mazzeo by summons filed 19 November 2015 and amended 7 April 2016.
The orders sought in the amended summons were said to be sought pursuant to s 16(2)(a) of the VP Act, which is a provision enabling applications for extended litigation restraint orders.
In his reasons for judgment published 20 May 2016, J Forrest J characterised Lennon Mazzeo’s application as one for an extended litigation restraint order.[4] His Honour described the provisions of pt 3 of the VP Act, which relate to extended litigation restraint orders, as the relevant parts of the Act for the purposes of the application.[5]
[4]Karam v Palmone Shoes Pty Ltd (No 3) [2016] VSC 228, [25].
[5]Karam v Palmone Shoes Pty Ltd (No 3) [2016] VSC 228, [21]–[24].
Section 20(1) of the VP Act empowers the court to order that certain things not be done ‘for the period specified by the Supreme Court’. Section 27 of the VP Act relevantly provides that an extended litigation restraint order ‘remains in force for the period specified in the order’,[6] although it also provides that a court may specify that an extended litigation restraint order ‘remains in force indefinitely’.[7]
[6]VP Act s 27(1).
[7]VP Act s 27(2).
The orders of J Forrest J do not specify any duration for the operation of order 1. Order 2 prescribes a period of five years.
It is not permissible for me to conduct a collateral review of the validity of order 1. I will assume that it is effective in accordance with its terms. I will treat it as an extended litigation restraint order of indefinite duration.
By applications dated 17 February 2017, Mr Karam filed applications to revoke the restraint order (revocation application) and for leave to continue his appeal of the order of Lansdowne AsJ made 11 August 2015, granting payment of funds out of Funds in Court to Lennon Mazzeo and Aloe & Co (leave to continue application).
I will put the revocation application to one side; suffice it to say, the application was determined by Ginnane J on 1 May 2018, and the extended litigation restraint orders against Mr Karam were not revoked.
On 2 August 2017, the leave to continue application was the subject of a mention before Ginnane J. By order made on 7 August 2017, his Honour directed the plaintiff to serve copies of the revocation application and leave to continue application on Lennon Mazzeo.
On 5 June 2018, Cavanough J ordered that notice be given to the Attorney-General, Lennon Mazzeo, Aloe & Co Pty Ltd and CTT Legal Management, including the application, notice of the application, and any affidavits in support of the application, as well as his Honour’s orders. The plaintiff filed an affidavit of service within time, on 4 February 2019.
On 28 March 2019, Judicial Registrar Clayton made further timetabling orders for the filing of material and directed that the application be determined on the papers by a Judge, on a date to be fixed.
Following correspondence from the plaintiff indicating that he was unwell and required time to find a lawyer to represent him, Judicial Registrar Clayton on 4 July 2019 extended the timetable for the filing of material and directed that the application be determined on the papers by a Judge not before 29 November 2019.
The parties have made no further submissions pursuant to the orders of Judicial Registrar Clayton.
I am satisfied that they have acquiesced in the order that the application be determined on the papers.
Legislative context
Part 8 div 2 of the VP Act provides for an application for leave to continue a proceeding under an extended litigation restraint order. Section 52 relevantly provides:
52 Application for leave to commence or continue proceeding
(1) Subject to subsection (2), a person who is subject to an extended litigation restraint order may apply to a Victorian court or tribunal for leave to commence or continue a proceeding—
(a) against a person or other entity protected by the order; or
(b) in respect of a matter described in the order.
…
(3) Subject to subsection (4), an application under subsection (1) or (2) must be made to the Victorian court or tribunal that made the extended litigation restraint order.
(4) If the extended litigation restraint order was made by the Supreme Court and the order does not provide otherwise, an application under subsection (1) must be made to the Victorian court or tribunal that would hear the proceeding to which the application for leave relates.
Section 53 of the VP Act relevantly provides:
53 Court or VCAT may grant leave to commence or continue proceeding
On an application under section 52, a Victorian court or tribunal may grant a person who is subject to an extended litigation restraint order leave to commence or continue a proceeding against a person or other entity protected by the order, a child of a person protected by the order, or in respect of a matter described in the order, if the Victorian court or tribunal is satisfied that—
(a) the proceeding is not a vexatious proceeding; and
(b) there are reasonable grounds for the proceeding.
The term ‘vexatious proceeding’ is defined in s 3 of the VP Act and includes:
(a) a proceeding that is an abuse of the process of a court or tribunal;
(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
(c) a proceeding commenced or pursued without reasonable grounds;
(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Consideration of leave to continue application
The leave to continue application was commenced by Mr Karam’s written application dated 16 February 2017 and filed 17 February 2017.
The grounds of the application
In the absence of submissions from Mr Karam, I rely on the substantive text of his written application, reproduced in full below:
1. The applicant Akram Karam has never issued vexatious proceedings or commenced vexatious proceedings namely proceeding No. SCI 2009 9926 against Lennon Mazzeo Lawyers when:
1.1. The proceeding No. SCI 2009 9926 is a common Law damages Claim in regard to an asthma injury against Palmone Shoes and the workCover Authority, this proceeding had been finalised and no more existed and been successful when I been awarded damages by the Supreme Court and the amount of the award had been put into the Master Funds. In this proceeding I made appeals in 2010 as a matter of right, and my appeals had not succeeded and no more existed.
1.2. Lennon Mazzeo commenced an application by a summons dated 20 May 2015 for an order for paying money from the Master Funds and the proceeding was given number SC I 2009 09926 and in this proceeding an order had been made unreasonably by Her Honour Associate Judge Lansdowne on 11 August 2015 without given me a reasonable opportunity to defend the application by not allowing me to file any materials, as the paragraphs 4 provided in exhibit “WTD 2” and ·'WTD 9” of the supporting affidavit dated 15 February 2017, and the affidavit dated 20 September 2015 provided on page 410 of the Court Book that been filed in the Registry 7 October 2015.
1.3. An appeal against the order by Her Honour Associate Judge Lansdowne had been issued by the applicant on 25 August 2015 as a matter of right to access justice, and the Registry filed my appeal, and all the required materials together with the court book and submission had been filed and served as the paragraphs (1-9) of the supporting affidavit dated 15 February 2017.
1.4. The Court listed a hearing for my appeal proceeding No. S CI 2009 9926 to be on 22 October 2015, but the hearing of my appeal proceeding No. S CI 2009 9926 bad not been heard by the Court and been cancelled as the paragraphs (] 0-14) of the supporting affidavit dated 15 February 2017 provided, which was unreasonable when:
a. There was no ground to justify not hearing the proceeding or consider it a vexatious proceeding, as there was no an order for extended litigation restrain under section 52(1) of the Vexatious Proceeding Act 2014 when the order for extended litigation restrain order by his Honour Judge J made on 20 May 2016.
b. The only reason and purpose for not hearing my appeal on 22 October 2015 was to allow Lennon Mazzeo to make his an abuse of process application under Vexatious Proceeding Act on 19 November 2015 as the exhibit “ALT 1” provided in the affidavit dated 14 February 2017 of No. S CI 2009 9926, which caused a prejudice and injustice when my appeal shall be determined in a fair hearing and preventing me to do so will deprived me the right to access the court, and due to the failure to hear my appeal, complaint to the Chief Justice and the Attorney General of Victoria had been issued as the exhibits “TD 1 0” and “TD 11” of the supporting affidavit dated 15 February 2017 provided.
2. My appeal proceeding No. S CI 2009 9926 has merits and leave to continue the proceeding ought to be allowed as the tice of appeal provided in exhibit “WTD 2” and the submission in “WTD 9” of the supporting affidavit dated 15 February 2017 when:
2.1. Lennon Mazzeo does not maintain a right to commence the proceeding for paying money by a summons dated 20 May 2015 pursuant to section 4.3.2 of the Legal Profession Act 2004, as the paragraph 1 of the notice of appeal and the submission in exhibit “WTD 2” and exhibit “WTD 9” of the supporting affidavit dated 15 February 2017 provided.
2.2. Making an order by Her Honour Associate Judge Lansdowne on 11 August 2015 to allow Lennon Mazzeo for paying his costs from the Funds in Court was against the justice when:
a. The application for paying money by Lennon Mazzeo shall be adjourned to be determined after determining the cancer claim for weekly payments in the County Court as the paragraph 2 of the notice of appeal and the submission provided in exhibit “WTD 2” and “WTD 9” of the supporting affidavit dated 15 February 2017.
b. Also other proceedings of the taxing assessment No. 2010 00791 and the professional negligence claim No. 2011 3123 against Lennon Mazzeo had to be determined before withdrawing any money by Lennon Mazzeo when both proceedings have not been determined when Judge Lansdowne made her order on 11 August 2015.
c. Her Honour Associate Judge Lansdowne was in error in allowing Lennon Mazzeo for payments of his costs from the Finds in Court amount when the Lennon Mazzeo costs ought to be paid by Aloe & Co pursuant to pursuant to the Order 63.23 of the Supreme Court (General Civil Procedure) Rules 2005 as provided in paragraph 5 of the submission in exhibit “WTD 9” of the supporting affidavit dated 15 February 2017.
3. Not allowing me to continue my proceeding No. SCI 2009 9926 will be against the interest of justice when I had been disadvantaged and prejudiced by the Registry of the Supreme Court of Victoria in denying me the right to access justice by failing to hearing my appeal when:
3.1. An amount of $231,352.64 had been held on my behalf by the Funds in Court of Supreme Court of Victoria.
3.2. On 30 June 2016, I had been advised by the Funds in Court of the Supreme Court of Victoria that the amount of fund had been paid out on 8 September 2015 to the Supreme Court based on the order of her Honour Associate Judge Lansdowne dated 11 August 2015 as the letter from the Funds in Court dated 30 June 2016 provided in Exhibit “WTD 17” of the affidavit dated 15 February 2017 of proceeding No. S CI 2009 9926, which was manifestly injustice when:
a. The order of her Honour Associate Judge Lansdowne dated 11 August 2015 is subject to an appeal as my Notice of Appeal of No. SCI 2009 09926 provided which was filed in the Court of Appeal on 25 August 2015, and a hearing listed to be on 22 October 2015 .
b. Therefore, withdrawing the money from the Funds by the Supreme Court on 8 September 2015 before determining my appeal which was listed for hearing on 22 October 2015 was complete injustice and had been taken by the Court by fraudulent process.
4. Not allowing me to continue my proceeding No. S Cl 2009 9926 as a result of the effect of the order by his Honour Judge J Forrest dated 20 May 2016 for extended litigation restrain order, will be against the interest of justice when:
4.1. The order by his Honour Judge J Forrest dated 20 May 2016 for extended litigation restrain order ought to be set aside when:
a. The order is ambiguous, illegal and unreasonable and was made in my reasonable absence, also his Honour Judge J Forrest not qualified to make . any order in relation to my matter, as provided in the [Application to Vary or Revoke the Extended Litigation Restrain Order] dated 16 February 2017 and the supporting affidavit dated 14 February 2017.
b. His Honour Judge J Forrest was manifestly in error in making the extended litigation restrain order on 20 May 2016 on an application by Lennon Mazzeo when:
• Making the applications by Lennon Mazzeo dated 19 November 2015, 23 March 2016 and 7 April 2016 are an abuse of process.
• The applications by Lennon Mazzeo dated 19 November 2015, 23 March 2016 and 7 April 2016 have no merits, as provided in the [Application to Vary or Revoke the Extended Litigation Restrain Order] dated 16 February 2017 and the supporting affidavit dated 14 February 2017.
4.2. My appeal had been listed for hearing by the Registry of the Court for three times on 22 September 2015, 22 October 2015, and 9 March 2016 as the paragraphs (2, 5, 13) of the affidavit dated 15 February 2017 provided, but has not been heard, Whereas the order for extended litigation restrain order was made and took effect on 20 May 2016.
I have also considered Mr Karam’s affidavits in this proceeding dated 14 and 15 February 2017.
Applicable principles
Pursuant to s 53 of the VP Act, in order to grant leave in this proceeding, I must be satisfied both that the proceeding is not a vexatious proceeding, and that there are reasonable grounds for the proceeding.
As an applicant for leave, the onus is on Mr Karam to establish both of these elements.[8]
[8]Knight v Thomas [2015] VSC 283, [25].
There is an element of overlap between these two elements, because a proceeding ‘commenced or pursued without reasonable grounds’ is one of the categories of the definition of ‘vexatious proceeding’.
There are reasonable grounds for a proposed proceeding if the applicant for leave establishes a ‘real or reasonable prospect’ that the claim for relief can succeed.[9]
[9]Knight v Corrections Commissioner [2016] VSC 50, [97], [100].
Analysis and conclusions
In his application, Mr Karam advances four broad grounds in support of his assertion that the proceeding is not vexatious and that there are reasonable grounds to support it. The details of each of those grounds are reproduced at paragraph 26 above. I will address each of these grounds in turn and consider whether each demonstrates that the proposed appeal has reasonable grounds, by reason of there being a real or reasonable prospect of success.
Ground 1
By the introductory words or ‘chapeau’ of ground 1, Mr Karam contends that he has never issued vexatious proceedings or commenced vexatious proceedings against Lennon Mazzeo. He sets out four sub-grounds that presumably he deploys in support of this contention: grounds 1.1 to 1.4, extracted above.
However, the question of whether Mr Karam had ever issued, or never issued, vexatious proceedings was incapable of establishing that there were any real or reasonable prospects of this appeal. It was perhaps a question relating to the revocation application, but was irrelevant to the leave to continue application.
As explained in relation to ground 4 below, I cannot entertain any collateral challenge to the litigation restraint orders against Mr Karam.
I conclude that ground 1 has no real or reasonable prospects of success.
For completeness, I note that some of the things said in the sub-grounds, in particular within ground 1.2, could be read on a standalone basis as impugning her Honour’s decision to grant the law practices access to the funds in court. Out of an abundance of caution, I have considered the additional documents referred to in ground 1.2. I do not consider that any of the matters contained in them establish a real or reasonable prospects of a successful appeal.
Ground 2
By ground 2, Mr Karam contends that his appeal has merits and that leave to continue ought be allowed, and in this respects he relies on regard to exhibits WTD 2 and WTD 9 of his affidavit of 15 February 2017, and sets out two sub-grounds, grounds 2.1 and 2.2.
By ground 2.1, Mr Karam contends that Lennon Mazzeo ‘does not maintain a right to commence the proceeding for paying money by a summons dated 20 May 2015’ by reason of s 4.3.2 of the Legal Profession Act 2004.[10] At the time that this proceeding commenced, that section provided as follows:
An Australian legal practitioner must not commence proceedings in relation to the subject matter of a civil dispute between a person and the practice or practitioner after the practice or practitioner has received notice under s 4.2.8 of a civil complaint about the conduct of the practice or practitioner in respect of the dispute.
[10]Application for Leave to Continue Proceeding by Person Subject to Extended Litigation Restraint Order dated 16 February 2017 and filed 17 February 2017, [1.4(a)]; ‘Affidavit in Response of the Application by Lennon Mazzeo dated 14 June 2016’ of Akram Karam dated 21 June 2016, [1].
Mr Karam refers to paragraph 1 of his notice of appeal dated 24 August 2015 and to his submissions dated 19 October 2015, both of which are exhibited to his affidavit of 15 February 2017.[11]
[11]Exhibits WTD 2 and WTD 9.
Paragraph 1 of Mr Karam’s notice of appeal substantially reproduces paragraph 1 of his affidavit dated 21 June 2016 in proceeding S CI 2011 03123 and referred to in ground 1.4(a) of that proceeding. I adopt the same reasoning on the issue as I did in my reasons for judgment in that proceeding, delivered with these reasons.[12] Mr Karam’s argument in relation to s 4.3.2 of the Legal Profession Act 2004 is misconceived. That section prohibits a practitioner from commencing proceedings, in certain circumstances. The payment summons by Lennon Mazzeo did not constitute the commencement of a proceeding — it was an application made within a proceeding that had been commenced by Mr Karam.
[12]See Karam v Lennon Mazzeo (No 2) [2024] VSC 526.
I conclude that ground 2.1 has no real or reasonable prospect of success.
Ground 2.2 raises three matters which, Mr Karam contends, demonstrate that Lansdowne AsJ’s order for access to Funds in Court was unjust. None of them establishes any error in her Honour’s reasoning or conclusions. Significantly, her Honour extracted from both law practices undertakings that if at any future times the Court requires repayment, those sums will be repaid. Those undertakings address all of the issues raised in ground 2.2. None of the possibilities for different costs outcomes noted in that grounds rendered her Honour’s order unjust, because in the event that Mr Karam had been able to establish any such outcomes, he could have sought repayment pursuant to the undertakings.
I conclude that ground 2 has no real or reasonable prospect of success.
Ground 3
Ground 3 is similar to ground 2, in that its gist is that it was unjust to allow payment to the law practices before the appeal from her Honour’s order was heard and determined. The undertakings render this ground devoid of real or reasonable prospects of success.
Ground 4.1
Ground 4.1 is identical to ground 3 of Mr Karam’s application for leave to commence proceedings in proceeding S CI 2011 03123, for which I also published reasons today.[13] For the same reasons given in that judgment,[14] ground 4 of the present application does not establish any real or reasonable prospect of success. I am not permitted to collaterally review the correctness or propriety of the litigation restraint order in respect of which leave to continue or commence a proceeding is sought.
[13]See Karam v Lennon Mazzeo (No 2) [2024] VSC 526.
[14]See [63]–[65].
This ground cannot lead to a successful appeal from her Honour’s orders.
Ground 4.2
As can be seen from the extract of this ground above, there is no contention in the text of this ground that could be regarded as in any way impugning her Honour’s orders.
This ground cannot lead to a successful appeal either.
Conclusion
None of the grounds of the leave to continue application has real or reasonable prospects of leading to a successful appeal from the orders of Lansdowne AsJ on 15 August 2015.
In paragraph 2 of the orders sought in his written application, Mr Karam seeks costs to be paid by the respondent. There is no basis for such an order. I can see no basis for departing from the usual course, which is that costs follow the event, to be assessed on the standard basis.
Mr Karam’s application for leave to continue the appeal will be refused, with costs.
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