Kiparoglou v Dr Azghandi Pty Ltd

[2021] SASCA 149

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

KIPAROGLOU v DR AZGHANDI PTY LTD

[2021] SASCA 149

Judgment of the Court of Appeal  (ex tempore)

(The Honourable President Livesey and the Honourable Justice Doyle)

13 December 2021

APPEAL AND NEW TRIAL

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT

The applicant commenced proceedings in negligence, claiming $33,000 from the respondent on the basis that the respondent had allegedly failed to provide the applicant with his medical records. However, the unchallenged evidence showed that the respondent had ensured that the applicant was supplied with his medical records. The claim was dismissed as comprising an abuse of process and an order for costs was made. The applicant subsequently sought to appeal, as well as leave to appeal.

Held (by the Court), dismissing the applications for an extension of time and leave to appeal:

1.An order staying or dismissing an action as frivolous or vexatious or as an abuse of process is interlocutory in nature.

2.As both the order for dismissal and the order refusing the application to reopen were interlocutory decisions, the appeals lay to a single Judge rather than the Court of Appeal. However, as the applicant purported to bring the appeal before the Court of Appeal, and it has been considered by the Court of Appeal, it is appropriate that the questions of leave be determined by the Court of Appeal.

3.The applicant has raised no issue of principle nor any arguable error. It is appropriate that this litigation, which is vexatious, be brought to an end. There is no utility in granting an extension of time.

4.The application to lead further evidence and raise questions about ostensible bias is without merit, vexatious and ought be dismissed.

Uniform Civil Rules 2020 (SA) rr 70, 212.2(1)(f), 213.1(1)(a); District Court Act 1991 (SA) ss 43(1), 43(2), referred to.
Kiparoglou v Dr Azghandi Pty Ltd (ABN 41630147107) [2021] SADC 76; Re Luck (2003) 203 ALR 1, considered.

KIPAROGLOU v DR AZGHANDI PTY LTD
[2021] SASCA 149

Court of Appeal – Civil: Livesey P and Doyle JA

THE COURT (ex tempore):

1. The applicant appeals against an order by a District Court Judge dismissing proceedings brought in negligence, seeking an order that the respondent pay the sum of $33,000 on the basis of an alleged failure to provide the applicant with his medical records. 

2. The applicant has not appeared today.  He has not responded to my associate’s telephone call.  The applicant sent an email to the Court on 9 December 2021 in the following terms, attaching an application to lead further evidence and raising a number of additional matters including an allegation of ostensible bias: 

   Dear All,

   Plz see attached, I would like to make it on the 13th Dec but unfortunately will be busy resting & doing absolutely nothing…

   Regardless of outcome I would like to with you all a Merry X-Mas.

   Thx

3. The reasons of the District Court Judge were published on 30 June 2021. There was then some debate over the question of costs.  The respondent sought indemnity costs. 

4. When the matter came back before the Judge on 14 October 2021, the applicant had not responded to the respondent’s costs application.  Ultimately, the Judge awarded costs on a standard basis.  However, by an application dated 13 October 2021, the applicant sought, effectively, to reopen the proceedings and address various questions including allegations of ostensible bias.  The Judge dismissed the application on 14 October 2021.  The applicant has sought leave to appeal that interlocutory decision.

5. The Judge dismissed the proceedings for reasons which include that there was unchallenged evidence that the respondent had ensured that the applicant was supplied with his medical records.  The Judge found that the proceedings ought be dismissed because the pleading disclosed no reasonable cause of action and he was satisfied that no reasonable cause of action was capable of being disclosed. 

6. Indeed, the Judge went further and found that the proceedings comprised an abuse of process because the only intention of the applicant was to vex the doctor involved: he found that the proceedings were frivolous and vexatious.[1] Alternatively, the Judge would have made an order striking out the whole of the claim under r 70 of the Uniform Civil Rules 2020 (SA) (the UCR). 

   [1]    Kiparoglou v Dr Azghandi Pty Ltd (ABN 41630147107) [2021] SADC 76, [36]-[38] (Slattery DCJ).

7. The proposed grounds of appeal do not address the fact that the medical records were supplied to the applicant, nor do they complain about any of the findings to which reference has just been made.

8. The District Court Judge dismissed the application dated 13 October 2021 because the proceeding had already been dismissed.  The proposed grounds of appeal do not address that and, instead, agitate other issues which, as mentioned, include allegations of ostensible bias.

9. By s 43(2)(b) of the District Court Act 1991 (SA), an appeal against any interlocutory judgment given by a Judge in an action lies to the Supreme Court constituted of a single Judge and, by s 43(2)(c), in any other case, to the Court of Appeal. By s 43(1), an appeal is to be made in accordance with the rules of the appellate court.

10. By r 212.2(1)(f) of the UCR, the appellate jurisdiction of the Supreme Court is to be exercised by a single Judge if a statute so requires.  However, by r 212.2(2), a Judge may order that the appellate jurisdiction that would otherwise be exercised by a single Judge be exercised by the Court of Appeal.  For the following reasons, it is appropriate to make that order in this case.

11. By r 213.1(1)(a) of the UCR leave to appeal is required where the appeal is against an interlocutory decision made by a Judge of the District Court.

12. As framed by the applicant, one part of his appeal would ordinarily come before the Court of Appeal, whereas the remaining part would come before a single Judge of the Supreme Court.  The applicant’s approach is, however, flawed: both aspects of the appeal concern interlocutory decisions.  It is appropriate to make an order that the appeal and any application for leave to appeal be heard by the Court of Appeal where the applicant has purportedly invoked the jurisdiction of the Court of Appeal and the matter has been considered by the Court of Appeal.  No useful purpose would be now served in remitting the question of leave to a single Judge.  Whilst the loss of a potential appeal avenue might be relevant in some cases, that is not a matter of much weight in the circumstances of this case.  The loss of a potential appeal avenue is not of any real moment in a case which is devoid of merit.  Accordingly, an order should be made under r 212.2(2) of the UCR that these applications be heard by the Court of Appeal.

13. Despite the way in which the applicant has framed his Notice of Appeal, the decision to dismiss the proceedings was not final in nature.  The High Court has held that an order staying or dismissing an action as frivolous or vexatious or as an abuse is interlocutory in nature.[2]  That probably best describes what the Judge did in this case on 30 June 2021.  On any view, the order made on 14 October 2021 was interlocutory in nature.  It is appropriate to treat the purported appeal as an application for leave to appeal.

    [2]     Re Luck (2003) 203 ALR 1, [6]-[7] (McHugh ACJ, Gummow and Heydon JJ).

14. The applicant has raised no issue of principle nor any arguable error in the decisions of the District Court Judge.  It is appropriate that this litigation, which is clearly vexatious, be brought to an end.

15. In these circumstances, it is not in the interests of justice to grant leave to appeal. As the applications for leave to appeal are without merit there is no utility in granting an extension of time. 

16. Finally, the 9 December 2021 application seeking to adduce further medico-legal evidence is without merit.  The evidence does not support the assertion that the applicant lacks legal capacity, nor does it support the assertion that I am disqualified from hearing this application.  On no account could this further evidence be relevant.  The application is vexatious and ought be dismissed.

17. The orders of the Court are:

    1.The appellate jurisdiction that would otherwise be exercised by a single Judge shall be exercised by the Court of Appeal.

    2.An extension of time is refused.

    3.Leave to appeal is refused.

    4.The application dated 9 December 2021 is dismissed.