Lauro v Minter Ellison

[2021] SASCA 97

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Civil)

LAURO v MINTER ELLISON

[2021] SASCA 97

Judgment of the Honourable Chief Justice Kourakis  

21 September 2021

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - FURTHER APPEAL TO FULL COURT

MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT - PROCEDURE - NOTICE OF APPEAL

Application for leave to appeal to the Court of Appeal against the decision of a judge of this Court on appeal from the Magistrates Court.

These proceedings relate to a claim for unpaid legal fees by brought by the respondent in the Magistrates Court in 2013. Default judgment was entered against the appellant due to his non-attendance at trial. The appellant then applied to have the default notice set aside, which was dismissed by the Magistrate.

In 2014, the appellant filed a Notice of Appeal to the Supreme Court which was heard by single Judge. On 22 December 2017, judgment was delivered dismissing the appeal and reserving the decision as to costs. The appellant then filed a number of interlocutory applications seeking, inter alia, an extension of time of time for leave to appeal to the Full Court and opposing the making of the usual order as to costs. A further judgment was handed down on 29 May 2018, dismissing the subsequent interlocutory applications and ordering the appellant to pay the respondent’s costs of the appeal.

On 18 June 2018, the appellant filed an interlocutory application seeking permission to appeal the judgment of 29 May 2018. This application was granted. However the appellant failed to set the matter down for hearing in accordance with the Rules his appeal was taken to have lapsed. By interlocutory application filed 8 April 2019, the appellant sought reinstatement of the appeal and a further three months to set the matter down for hearing. On 12 August 2019, judgment was delivered dismissing the application.

The appellant then filed a further interlocutory application on 26 August 2019 for reinstatement of the appeal, or in the alternative, to appeal against the decision to dismiss his application on 12 August 2019. This application was dismissed on 10 September 2019.

On 17 September 2019, the appellant filed a further Notice of Appeal which is the subject of these proceedings.

Held, (per Kourakis CJ) dismissing the appeal:

1. The appellant’s Third Notice of Appeal is struck out.

2. The appellant is refused an extension of time to appeal.

Supreme Court Supplementary Rules 2014 (SA) ss 240, 241, 296, 289, referred to.

LAURO v MINTER ELLISON

[2021] SASCA 97

Court of Appeal:      Kourakis CJ

1. KOURAKIS CJ:     This is an application for leave to appeal to the Full Court, or as is now the case, the Court of Appeal, against the decision of a judge of this Court on appeal from the Magistrates Court.

2. The proceeding subject of the application for permission to appeal is a claim for unpaid legal fees brought by the respondent, Minter Ellison Lawyers, in the civil jurisdiction of the Magistrates Court in June 2013.  The matter was set down for trial on 25 August 2014 and on the morning of 25 August 2014, Mr Lauro informed the Magistrates Court Registry that by reason of his ill-health, namely gastroenteritis, he was unable to attend the first day of the trial. He supplied a medical certificate to support this claim. The Magistrate adjourned the trial to the following day but made it clear by way of email to Mr Lauro that should he not attend on the adjourned date that the matter would be determined in his absence.  When Mr Lauro failed to attend court on the adjourned date, the Magistrate entered default judgment against him. In September 2014, the appellant applied to have the default judgment set aside and on 15 September 2014 the Magistrate dismissed the application. On 7 October 2014, the appellant filed a Notice of Appeal in this Court (SCCIV-14-1393) against the orders of 15 September 2014 and 26 August 2014.

3. The appeal was heard by a single Judge of this Court. On 22 December 2017, Hinton J handed down judgment, dismissing the appeal, declining to set aside the default judgment and reserving his decision as to the costs of that appeal. In the intervening period Mr Lauro filed a number of interlocutory applications seeking, inter alia, an extension of time for leave to appeal to the Full Court and opposing the making of the usual order as to costs.

4. A further judgment was handed down on 29 May 2018, dismissing the interlocutory applications and ordering Mr Lauro to pay the respondent’s costs of the appeal.

5. On 18 June 2018 Mr Lauro filed an interlocutory application seeking permission to appeal the decisions of 22 December 2017 and 29 May 2018.  On 28 June 2018 Hinton J granted permission to appeal on narrowly prescribed grounds 5.  Hinton J warned Mr Lauro of the need to comply with the rules of the court for the prosecution of appeals.

6. On 2 July 2018 Mr Lauro filed his Second Notice of Appeal.  He requested that the respondent consent to a dispensation of the rule requiring that the appeal be set down within six months.  The respondent’s solicitor replied on 5 July 2018:

   We will object to any application made by you seeking an extension of time to set down your appeal beyond the time prescribed by the rules.

   On our reading the relevant time for setting down an appeal is dealt with by supplementary rules 240 and 241. Supplementary rule 240 requires an appellant to serve a draft electronic index to the case book within 21 days of the grant of permission to appeal to the Full Court. On our calculation that means you must complete that task on or before 19 July 2018. A failure to complete that task allows us as respondent to take certain steps. You are on notice that should you not comply strictly with the time requirements of the relevant rule, we will apply to have your appeal dismissed.

   Emphasis added

7. However, Mr Lauro did not proceed to set the matter down for hearing in accordance with the Rules.  Mr Lauro claims, wrongly, that he was not aware of the existence and/or operation of r 296 and that the respondent first advised him of the operation of r 296 of the Supreme Court Civil Rules 2006 in a letter dated, 27 March 2019. In that letter, the respondent stated:

   Unless you file and serve an application seeking reinstatement of the appeal within 7 days we will assume that you no longer wish to pursue an appeal and we will commence enforcement of the judgment against you.

8. The respondent was under no obligation to advise Mr Lauro of his obligations under the court rules.  At that point in time, some 10 months had elapsed from the grant of permission and over 16 months had elapsed since the impugned judgment had been handed down. 

9. The respondent’s offer to allow Mr Lauro another week was therefore a generous one.

10. The draft case book index was finalised sometime on or shortly after 31 July 2018. The preparation of the case book marked the final step required for the appeal to be listed. Rule 241 of the Supreme Court Civil Supplementary Rules 2014 provided relevantly:

    241—Listing appeal

    (1)     Once the case books are lodged, the Chief Justice will list the appeal based on the information sheet lodged pursuant to supplementary rule 242(2)(d). The parties will be notified of the listing date.

    (2)     The date and time for hearing appellate proceedings will be published from time to time in the Court’s case list (sic)

11. However, because Mr Lauro did not take the necessary steps to set the matter down for hearing, his appeal was taken to have lapsed by operation of r 296(2).

12. Rule 296 of the Supreme Court Civil Rules 2006 provides that:

    296—Setting down appellate proceedings for hearing

    (1)If the party having the carriage of an appellate proceeding fails to set the proceeding down for hearing within the time fixed by Supplementary Rules, another party may apply to the Court for permission to set the proceeding down for hearing or for an order dismissing the proceeding.

    (2)Unless an appellate proceeding is set down for hearing within 6 months after the proceeding is commenced or a longer time allowed by the Court, the proceeding is taken to have been discontinued and lapses. Despite the dismissal of an appellate proceeding under this rule, the Court may, for special reasons, reinstate the appellate proceeding.  

    (3)If a proceeding lapses under subrule (2), all parties are to bear their own costs.   

    (4)The power to allow a longer time under subrule (2) may be exercised before or after the period of 6 months has elapsed.

    Emphasis added

13. By interlocutory application filed 8 April 2019, Mr Lauro sought the reinstatement of the appeal and a further three months to set the matter down for hearing.  That application was heard on 21 June 2019 by Peek J who reserved his decision. On 12 August 2019, his Honour delivered judgment and dismissed the application to reinstate the appeal. Notwithstanding the dismissal of the application, Mr Lauro filed a further interlocutory application on 26 August 2019 once again agitating for the reinstatement of the appeal or, in the alternative, permission to appeal against Peek J’s judgment dated 12 August 2019. That application came before Bochner J, who referred the question of permission to appeal to Peek J in accordance with r 289(1)(b). On 10 September 2019, his Honour dismissed the application.  Peek J made the following remarks:

    8.In the present interlocutory application, Mr Lauro sought to couch his application as being primarily a fresh application to a single Judge that the original Full Court appeal be reinstated; but with an alternative application that permission to appeal to the Full Court against the decision in Lauro 12 August 2019 be granted. Since it was couched in this way, Registry did not appreciate that the matter should have been listed before myself and it happened to come before Bochner AJ for hearing.

    9.At the hearing before Bochner AJ, her Honour correctly ruled that Mr Lauro’s application to reinstate had been dismissed in Lauro 12 August 2019 and that the appropriate way of challenging that decision was by way of appeal rather than by a purported new application to a different Judge to reinstate the original Full Court appeal. The Judge therefore dismissed the present application, save as to paragraph three. As to paragraph three, her Honour ordered as follows: “Order 1: On FDN46 paragraph 3 is referred to Justice Peek”.

    10.Her Honour was also correct in making this order. As noted above, SCR 289(1) offers two alternatives. Clearly Mr Lauro had eschewed the SCR 289(1)(a) alternative. In fact, he had cited the SCR 289(1)(b) alternative and had complied with the 14 day calendar time limit there specified.      

    11.The matter now coming before me, I deal with the application for permission to appeal on the basis that Mr Lauro has applied under SCR 289(1)(b) and that the options open to me are delineated by SCR 291(4) which is reproduced above.

    12.I am fully conversant with the facts and circumstances. I have re-read my previous judgment and those of Hinton J and have again considered the relevant materials, including Mr Lauro’s various affidavits and his submissions to both Hinton J and me. In addition, I have considered the present interlocutory application, including Mr Lauro’s accompanying affidavit (which fully sets out the basis upon which he applies for permission to appeal) and also the transcript of the hearing of that application before Bochner AJ.  

    13.I do not consider that I would be assisted by further submissions from either party and accordingly I consider it appropriate that I “determine the application without hearing oral argument from any party” pursuant to SCR 291(4)(a).  

    14.On considering all of the material, I conclude that it is not reasonably arguable that my discretionary decision in Lauro 12 August 2019 should be set aside on appeal.  

    15.Contrary to suggestions made in Mr Lauro’s affidavit of 26 August 2019, in ruling as I did in Lauro 12 August 2019 I took into account all relevant factors including all of the matters referred to in that affidavit, and specifically including those referred to at sub-paragraphs 13.1 to 13.6.

    16.…

    17.Although Hinton J had given permission to appeal, he had done so with accompanying clear strictures that time limits were to be strictly complied with. Instead of doing so, Mr Lauro chose to initiate further litigation in the Magistrates Court as referred to above. Further, Hinton J in giving permission to appeal did not suggest that the original Full Court appeal had any higher prospect of success than that of being reasonably arguable; my assessment of the prospects of success of the original Full Court appeal was, and remains, that it is no more than reasonably arguable.

    18.The proposed appeal does not involve any matter of law or of general public importance and the amount of money involved is very much at the lower end of the range that would justify an appeal to the Full Court.

    19.Finally, insofar as the refusal of a stay is complained of, if permission to appeal against the orders made in Lauro 12 August 2019 is to be refused, that matter becomes moot. However, even if I were to give permission to appeal, I would hold that a stay should nevertheless be refused for the reasons set out in Lauro 12 August 2019 and that an appeal against that order is also not reasonably arguable.

14. His Honour dismissed the application for permission to appeal his discretionary decision not to reinstate the appeal, furthermore, it was ordered that:

    21.In addition to making an order dismissing the application for permission to appeal against the orders in Lauro 12 August 2019 I will order that any application to the Full Court for permission to appeal against the orders in Lauro 12 August 2019 must be conducted in accordance with the SCRs.

    22.I draw to Mr Lauro’s attention that he has a right to renew his application for permission to appeal to the Full Court which appears in SCR 289(3) as follows:

    (3)     If an application under subrule (1)(b) is refused, the appellant may renew the application to the Full Court by commencing, within 5 business days of the refusal, an appeal in the ordinary way under rule 290 and by including in the notice of appeal a request for the necessary permission. [Emphasis added]

    23.However, I emphasise that if he wishes to pursue the right in SCR 289(3) above, he is required to comply fully with SCR 290 which provides thus:  

15. Mr Lauro did not bring an appeal against the orders of Peek J. Instead, on 17 September 2019, he filed a further Notice of Appeal titled ‘Third Notice of Appeal to the Full Court and Associated Application for Leave to Extend Time for Setting Down of Appeal and Substitute Notice of Appeal’ (the Third Notice of Appeal). The Third Notice of Appeal purports to be against the decisions of Hinton J given on 22 December 2017 and 29 May 2018.  It provides as follows:

    Appeal by permission with leave sought to file and serve substituted Notice of Appeal and Extend Time for Setting Down of Appeal

    Permission to appeal to the Full Court on various grounds having been granted by the Hinton J on 28 June 2018, the now represented appellant seeks leave from the Full Court to set the appeal down out of time and to file and serve a substituted Third Notice of Appeal to the Full Court along the lines of the Third Notice of Appeal incorporated herein.

    1.     Orders complained of:

    1.1.   The 22 December 2017 orders by Hinton J dismissing the appeal from the orders of the learned Magistrate in Action No. AMCCI-13-2765 in the Adelaide Magistrates Court wherein the learned Magistrate entered default judgment in favour of the respondent for a liquidated amount on 26 August 2014 in light of the appellant’s non-attendance in person on that date before the learned Magistrate and on 19 September 2014 when the learned Magistrate refused the appellant’s application dated 2 September 2014 to set aside that judgment.

    1.2.   Consequential orders by Hinton J on 29 May 2018 that the appellant pay Minter Ellison’s costs of the appeal.

    2.Orders sought

    Leave to appeal to the Full Court having previously been granted by Hinton J on 28 June 2018, orders are sought:

    2.1.   extending the time for the appellant to set down the appeal for hearing pursuant Rules 289 (3) and 295 (1) of the Supreme Court Rules within 14 days or such other time as the court deems just, of the grant of an extension of time to do so.

    2.2.   granting leave to the appellant to file and serve a Third Notice of Appeal as set out herein in substitution for the previous Notices of Appeal.

    2.3.   allowing the appeal.

    2.4.   setting aside the default judgment in favour of Minter Ellison in Magistrates Court Action No AMCCI-13-2765.

    2.5.   setting aside the orders that the appellant pay the respondent’s costs.

    2.6.   granting such further or other orders as the court deems fair and just.

16. The Third Notice of Appeal ignores altogether the decisions of Peek J and seeks to reagitate the appeal against the judgments of Hinton J.  For the brief reasons that follow I would strike out the Third Notice of Appeal and refuse to grant Mr Lauro an extension of time and refuse permission to appeal to the extent that it is necessary to do so.  

17. The Third Notice of Appeal is not competent because it purports to institute a second appeal after the discontinuance of the first.  Even if a second appeal were available to Mr Lauro, it would be an abuse of process to circumvent the operation of r 296 and the decisions of Peek J by so proceeding.  The only proceeding available to Mr Lauro was to appeal the decision of Peek J delivered on 12 August 2019.

18. No appeal was commenced against the orders of Peek J and no application for permission to appeal those decisions to the Full Court is on foot. It is now far too late in the day for any such application to be brought.  For that reason alone, I dismiss the Third Notice of Appeal as an incompetent document. Even if an appeal against the decision of Peek J was instituted, it would not enjoy any prospect of success.  There is no discernible error in his Honour’s reasons.

19. The reasons put forward by Mr Lauro are not enough to amount to special reasons. The delay between the initial grant of permission by Hinton J and the subsequent filing of a proposed notice of appeal and accompanying grounds is far too long and the reasons for the delay are unconvincing.  In the context of the many delays since judgment was given in the Magistrates Court, the litigation should proceed no further.

20. In his reasons dated 10 September 2019, Peek J characterized, with respect, correctly, the prospects of success on the appeal:

    17Although Hinton J had given permission to appeal, he had done so with accompanying clear strictures that time limits were to be strictly complied with. Instead of doing so, Mr Lauro chose to initiate further litigation in the Magistrates Court as referred to above. Further, Hinton J in giving permission to appeal did not suggest that the original Full Court appeal had any higher prospect of success than that of being reasonably arguable; my assessment of the prospects of success of the original Full Court appeal was, and remains, that it is no more than reasonably arguable.

    Emphasis added

21. Finally, the substantive appeal also raises no questions of public importance such as to justify a grant of permission.

22. I strike out the Third Notice of Appeal and dismiss the application for permission to appeal and refuse permission to appeal.