Lauro v Minter Ellison Lawyers - [2019] SASC 161

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
LAURO v MINTER ELLISON LAWYERS
[2019] SASC 161
Judgment of The Honourable Justice Peek
10 September 2019
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE
Application for permission to appeal pursuant to rule 289(1)(b) of the Supreme Court Civil Rules 2006 (SCR).
On 8 April 2019, Mr Eric Lauro (Lauro) applied for orders by interlocutory application in action SCCIV 1393 of 2014 to reinstate his appeal to the Full Court. On 12 August 2019, Peek J dismissed the application: Lauro v Minter Ellison Lawyers [2019] SASC 139 (to be referred to as Lauro 12 August 2019).
On 26 August 2019 Lauro applied by interlocutory application seeking inter alia reinstatement of the Full Court appeal (paragraph 2) or, alternatively, permission to appeal to the Full Court against the refusal orders made by Peek J on 12 August 2019 (paragraph 3). The “Endorsements” section of the interlocutory application indicated that the application was made pursuant to inter alia SCR 289(1)(b).
On 6 September 2019 Bochner AJ heard the interlocutory application. Her Honour dismissed the application save as to paragraph 3, which her Honour referred to Peek J. Determination of paragraph 3 is the subject of this judgment. Pursuant to SCR 291(4)(a), the application was determined without hearing oral argument.
Held, dismissing the application:
1. It is not reasonably arguable that the discretionary decision in Lauro 12 August 2019 should be set aside on appeal. All relevant factors were taken into account and no irrelevant considerations were taken into account. The proposed appeal does not involve any matter of law or of general public importance and the amount of money involved is at the lower end of the range that would justify an appeal to the Full Court.
2. Insofar as the refusal of a stay is complained of, if permission to appeal Lauro 12 August 2019 is to be refused, that matter becomes moot. In any event, even if permission to appeal were granted, a stay should nevertheless be refused for the reasons given in Lauro 12 August 2019.
Supreme Court Civil Rules 2006 (SA) rr 289(1)(a), 289(1)(b), 289(3), 290, 291(1), 291(3), 291(4), 296(2), referred to.
Lauro v Minter Ellison Lawyers [2019] SASC 139, considered.

LAURO v MINTER ELLISON LAWYERS
[2019] SASC 161
Civil.

PEEK J: Application for permission to appeal pursuant to Rule 289(1)(b) of the Supreme Court Civil Rules 2006 (SCR).
By way of background, on 8 April 2019 Mr Eric Lauro applied for orders by interlocutory application in action SCCIV 1393 of 2014 to reinstate Mr Lauro’s appeal to the Full Court against orders made by Hinton J on 22 December 2017 and 29 May 2018 (to be referred to as the original Full Court appeal). The original Full Court appeal then stood, and presently stands, dismissed by dint of SCR 296(2) in that it was not set down for hearing within six months of its filing.
On 21 June 2019 I heard the application and reserved judgment. On 12 August 2019, I delivered judgment in Lauro v Minter Ellison Lawyers[1] (to be herein referred to as Lauro 12 August 2019) dismissing the application. The parties had been notified of the date of delivery of judgment well in advance and both Mr Lauro and counsel for the Respondent attended at judgment delivery. Mr Lauro at that time made no application for a time to be fixed for him to apply to me for permission to appeal pursuant to SCR 289(1)(b), nor did he contact my Chambers for that purpose thereafter.
[1] [2019] SASC 139.
However, on 26 August 2019 Mr Lauro applied by general interlocutory application in action SCCIV 1393 of 2014 (to be referred to as the present interlocutory application) seeking the following orders (and including the following endorsements):
1.   That this Application, and the Appellant’s supporting Affidavit filed contemporaneously with this Application, be accepted for filing.
2.   That:
(a)    the within Appeal be reinstated;
(b)    the Appellant lodge with the Court, and simultaneously serve to the Respondent, his final draft index and case book within 48 hours of the within Appeal’s reinstatement, for the Registrar or Appeals Clerk to undertake necessary next steps.
3.   In the event that order 2 above is not granted, that the Appellant be given permission to appeal to the Full Court against the refusal orders made by the Honourable Peek [sic] on 12 August 2019.
4.   In the event that order 3 above is not granted, and to the extent that it may be necessary to comply with rule 289(3), that the Appellant be allowed to amend his existing Notice of Appeal in the within proceeding by incorporating the abovementioned refusal orders.
5.   That the execution of, or proceeding on, any judgment in favour of the Respondent against the Appellant be stayed pending the hearing and determination of the within Appeal.
6.   Such further or other orders that the Honourable Court may deem fit.
Endorsements
Application is issued pursuant to rules 117, 131, 289(1)(b), 295(1)(a), 300(2) of the Supreme Court Civil Rules 2006 (SA), rule 46(4) of the Supreme Court Civil Supplementary Rule 2014 (SA) and section 48 of the Limitations of Actions Act 1936 (SA).
Amongst the SCRs specifically referred to in the endorsements is SCR 289(1)(b). SCR 289(1) provides relevantly as follows:
289—Appeals to the Full Court – Manner of seeking permission to appeal
(1)When permission to appeal is required and the appeal will, if permission is granted, be heard by the Full Court, the appellant may seek permission to appeal—
(a)by commencing the appeal in the ordinary way and including in the notice of appeal a request for the necessary permission;
(b)if the appeal is against a judgment of a single Judge or Master of the Court, by making, within 14 calendar days of the judgment, application to that Judge or Master for permission to appeal; or
…
(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.
SCR 289(1) was discussed in my judgment in Lauro 12 August 2019. As Mr Lauro is well aware, there are two alternatives available to a person seeking permission to appeal to the Full Court in the present circumstances. The first is that set out in SCR 289(1)(a). Mr Lauro has clearly eschewed this alternative in that the records of the Registry confirm that he has not commenced an appeal against Lauro 12 August 2019 in the ordinary way, namely by filing a Notice of Appeal.
The second alternative is that in SCR 289(1)(b) (reproduced above). That sub-rule must be read in conjunction with SCR 289(3) (reproduced above) and also with SCR 291which provides:
291—Appeals to the Full Court – Request for permission to be considered by Judge or Master at first instance
(1)An application under rule 289(1)(b) to a Judge or Master for permission to appeal to the Full Court against a judgment of that Judge or Master may be made—
(a)subject to any contrary order of the Judge or Master, by oral application at the time of any attendance before the Judge or Master in relation to the action; or
(b)by interlocutory application supported by an affidavit setting out the grounds of the application.
…
(3)The other parties are not to file any affidavit or summary of argument unless and until a direction to that effect is given by the Court.
(4)     When an application is made under subrule (1) or subrule (2), the Court may—
(a)determine the application without hearing oral argument from any party;
(b)direct some or all of the other parties to file and serve a summary of argument;
(c)     direct that the application be listed for oral argument;
(d)     grant or refuse permission to appeal;
(e)     make any other order which may be appropriate in the circumstances.
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.
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”.
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.
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.
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.
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).
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.
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.
Insofar as Mr Lauro asserts at paragraph 13 of that affidavit that I “gave regard to irrelevant considerations”, the only such “consideration” that is referred to is Mr Lauro’s “Rule 296 knowledge”. In fact, what Mr Lauro knew about SCR 296, and when, was highly relevant for the reasons given in Lauro 12 August 2019. The closely associated topic of Mr Lauro using his time during the critical six month period immediately following the institution of the original Full Court appeal (and beyond) to institute in the Magistrates Court, and then in this Court, new proceedings directed to the same matter rather than progressing the original Full Court appeal was also highly relevant. Such proceedings were correctly found (in the Magistrates Court and confirmed on appeal to this Court) to be an abuse of the Court; as it happens, this topic is not alluded to in Mr Lauro’s present affidavit.
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.
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.
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.
Disposition of the present application
For the above reasons, I dismiss the application for permission to appeal.
Further procedural matters
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.
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]
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:
290—Appeals to the Full Court – Request for permission to be considered by Full Court
(1)When the application for permission to appeal to the Full Court is to be considered by the Full Court the appellant—
(a)must file with the notice of appeal any affidavit to be relied upon in support of the application and must exhibit to one such affidavit any relevant orders and reasons of a lower court or tribunal (but not of the Supreme Court);
(b)must, within 2 business days after filing the notice of appeal, serve a copy of the notice of appeal and any such affidavit upon all parties to the appeal.
(c)     must, within 14 calendar days of the filing of the notice of appeal—
(i)file one copy and lodge three additional copies of the appellant’s summary of argument in the Court and must serve copies of the summary on the other parties to the application; and
(ii)lodge in the Court three copies of an application book prepared in accordance with the Supplementary Rules.
(2)The summary of argument is to contain the heading “Appellant’s Summary of Argument on Application to the Full Court for Permission to Appeal” and is to be a concise statement of the factual and legal basis upon which the appellant seeks permission to appeal, including, when relevant—
(a)references to specific passages of the transcript of evidence (stating the name of the witness and page reference); and
(b)references to authorities and legislative provisions on which the applicant relies.
(3)The other parties are not to file any summary of argument unless and until a direction to that effect is given by the Court.
(4)When the application relates to a judgment of a lower court or tribunal, the Court may obtain the file of that court or tribunal and have regard to its contents.
(5)The application for permission in the notice of appeal will be referred to the Full Court without the applicant requesting it or setting it down for hearing.
(6)The Full Court will ordinarily consider the application for permission without hearing from the respondent and may, at its discretion—
(a)     grant or refuse permission to appeal;
(b)determine the application without hearing oral argument from the appellant;
(c)     direct that the application be listed for oral argument;
(d)     direct that the application and the appeal be heard concurrently; or
(e)     make any other order which may be appropriate in the circumstances.
(7)As soon as practicable after any direction or order has been made by the Full Court the Court will give written notification to the parties of the direction or order.
Orders
I make the following orders:
1.The applications for permission to appeal against the orders made in Lauro v Minter Ellison Lawyers [2019] SASC 139 (Peek J) made by Mr Lauro at paragraph 3 in his interlocutory application filed on 26 August 2019 and for a stay of execution of judgment are hereby dismissed.
2.If Mr Lauro wishes to apply to the Full Court for permission to appeal against the orders made in Lauro v Minter Ellison Lawyers [2019] SASC 139 (Peek J) then Mr Lauro must strictly comply with the Supreme Court Rules including Supreme Court Rule 289(3) and Supreme Court Rule 290.
Copies of this Judgment will be emailed to the parties and published immediately on the internet.