Kiparoglou v The State of South Australia

[2021] SASC 78

SUPREME COURT OF SOUTH AUSTRALIA

(Appeal to a Single Judge)

KIPAROGLOU v THE STATE OF SOUTH AUSTRALIA

[2021] SASC 78

Judgment of the Honourable Justice Parker  

29 June 2021

APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL

TORTS - ABUSE OF LEGAL PROCESS - MALICIOUS PROSECUTION

This is an application for an extension of time to appeal against the decision of a Master to dismiss the appellant’s action.

The Master held that that there was no reasonable basis disclosed for the claim of malicious prosecution, nor had a proper causal link been pleaded between the alleged injury suffered by the appellant and any conduct by a SA Police officer.  Further, on the basis that the appellant’s claim was difficult or impossible to understand or follow, the Master found that the personal injury claim was vexatious.

The appeal to this Court was filed out of time.  The grant of an extension of time was opposed by the respondent on the basis that the appeal has absolutely no merit.  

Held, per Parker J, dismissing the application:

1.The appellant’s extension of time is refused on the basis that the appeal could not possibly succeed.

2.      The appellant is to pay the respondent’s costs to be agreed or adjudicated.

KIPAROGLOU v THE STATE OF SOUTH AUSTRALIA

[2021] SASC 78

Single Judge Appeal:       Civil

1. PARKER J:     I recently refused to grant Mr Kiparoglou an extension of time to appeal against a decision of Judge Dart, a Master of this Court, to dismiss his action.  These are my reason for that decision.

   Background

2. Mr Kiparoglou was issued with an expiation notice by SA Police after being allegedly detected driving at a speed of 113 kph in a 100 kph zone on 2 October 2018.  He elected to be prosecuted.  After an extended pretrial process, the matter was ultimately listed for trial on 25 February 2021.  Mr Kiparoglou did not attend the trial and was convicted in absentia.  He subsequently appealed to this Court.  On 21 April 2021, SA Police consented to the conviction being set aside by Blue J exercising the powers of a magistrate at first instance.  The speeding charge was withdrawn by SA Police on 5 May 2021.  However, it is of central importance that the conviction subsisted when the Master delivered his reasons on 25 March 2021 and made final orders on 14 April 2021.

   The Master’s reasons

3. The Master found that although the statement of claim (being the fifth version) was difficult to follow, it apparently involved a personal injury claim and also an allegation of malicious prosecution by SA Police.  The Master noted that Mr Kiparoglou had initially claimed damages of $500,001.99.  However, in his fifth statement of claim that had increased to $12,150,180.50.

4. The Master found that there was no reasonable basis disclosed for the claim of malicious prosecution.  Mr Kiparoglou had been convicted of the speeding offence which formed the basis for the claim of malicious prosecution and that conviction still stood.  No proper causal link had been pleaded between the alleged injury suffered by Mr Kiparoglou and any conduct by a SA Police officer.  His Honour observed that a claim may be vexatious where it is difficult or impossible to understand or follow and that was the case with the claim by Mr Kiparoglou.  On that basis, the Master found that the personal injury claim was vexatious.

5. After noting that it is often appropriate where there is a strike out application to grant permission for a plaintiff to re-plead their case, the Master noted that this was the fifth attempt by Mr Kiparoglou to plead the claim.  There appeared to be no realistic prospect of him being able to properly plead a claim of the type that was before the Court.  There were fatal flaws in relation to both aspects of the claim which could not be overcome.  Accordingly, his Honour dismissed the action. 

   The appeal

6. Mr Kiparoglou has advanced seven grounds.  They may be briefly stated as follows:

   1.Section 6.2 of the Criminal Code under the Criminal Code Act 1995 (Cth), i.e. the absolute liability provisions.

   2.“Common law absolute liability & tort law absolute liability”.

   3.“Vexatious, Frivolous and Malicious falsely sworn affidavits, evidence & disclosure provided by all seven of the respondents common & tort laws”.

   4.Grounds four to seven comprise a list of provisions of the Criminal Law Consolidation Act 1935 (SA) dealing with acts endangering life or creating a risk of serious harm, dishonest dealing with documents, entry of false or misleading information into an electronic court management system and fabrication, altering or concealing evidence.

7. The notice of appeal simply listed the seven grounds to which I have referred. It did not identify in any way whatsoever how the Master was alleged to have erred in his decision.

   Extension of time

8. The judgment of the Master was delivered on 25 March 2021.  The notice of appeal was not filed until 4 May 2021.  Thus, the appeal can only proceed if Mr Kiparoglou is granted an extension of time.  The grant of an extension of time was opposed by the respondent on the basis that the appeal has absolutely no merit. 

   The appeal hearing

9. Mr Kiparoglou represented himself at the appeal hearing.  He acknowledged that the Master had not erred in his decision.  His complaint was that if the Master had not decided the matter until after the conviction was set aside, the basis upon which his Honour set aside the claim for malicious prosecution would not have been available.  He did not dispute the correctness of the finding by the Master that it was not possible to pursue an action for malicious prosecution while a conviction resulting from the impugned conduct of the police still stood. 

10. Mr Kiparoglou also acknowledged that he had not identified in his statement of claim any link between the spinal injury referred to in the various medical reports exhibited to his affidavit dated 17 June 2021 and the alleged misconduct of SA Police.  He seemed to suggest that the time and energy he had spent dealing with SA Police had interfered with his quest to secure treatment for his spinal condition.  However, that matter had not been pleaded in his statement of claim. He also acknowledged that the alleged police misconduct had not exacerbated his spinal condition.

    Conclusion

11. As Mr Kiparoglou had not identified any error whatsoever on the part of the Master, and conceded that fact in the course of his submissions, I refused to grant an extension of time on the basis that the appeal could not possibly succeed.  I made an order for costs in favour of the respondent, to be agreed or adjudicated.

12. As I explained to Mr Kiparoglou in the course of the appeal hearing, the decision of the Master does not preclude him from lodging a further statement of claim.  However, as this was his fifth attempt, and it did not remotely approach an acceptable standard of pleading, if he wishes to keep pursuing the matter it would be highly prudent for him to obtain legal advice.