Lauro v Minter Ellison Lawyers
[2019] SASC 139
•12 August 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
LAURO v MINTER ELLISON LAWYERS
[2019] SASC 139
Judgment of The Honourable Justice Peek
12 August 2019
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO STAY OR DISMISS ORDERS OR PROCEEDINGS GENERALLY
On 28 June 2013, the respondent sued Mr Lauro in the Magistrates Court for unpaid legal fees. The trial was listed to commence on 25 August 2014. Mr Lauro failed to attend on that date. The Registry advised him that the trial would not be adjourned if he failed to attend the next day but he again failed to attend. The Magistrate gave summary judgment and Mr Lauro’s later application to have the summary judgment set aside failed.
Mr Lauro appealed to a single Judge of this Court. Between the filing of his Notice of Appeal and the eventual hearing of the appeal, Mr Lauro filed numerous interlocutory applications. The appeal came on for hearing on 20 April 2017. On 22 December 2017, Hinton J dismissed Mr Lauro’s appeal.
On 19 January 2018, Mr Lauro instituted an appeal to the Full Court. He filed other interlocutory applications. On 29 May 2018, Hinton J dismissed all of the interlocutory applications.
On 18 June 2018, Mr Lauro filed an interlocutory application seeking inter alia permission to appeal from Hinton J’s two judgments and permission to amend his Notice of Appeal. On 28 June 2018, the Judge granted leave to file an amended second Notice of Appeal and permission on some of the grounds contained therein.
On 2 July 2018, Mr Lauro filed and served his Second Notice of Appeal. He did not set the appeal down for hearing and, on 27 March 2019, the respondent wrote to him stating that the appeal had been dismissed by dint of rule 296(2) of the Supreme Court Civil Rules 2006 (SA) (SCR).
On 8 April 2019, Mr Lauro filed an interlocutory application seeking reinstatement of the appeal and an extension of time within which to set it down for hearing. The matter came on for contested hearing on 21 June 2019. Judgment was reserved.
Held, refusing to reinstate the appeal and refusing to grant a stay of execution:
1. The discretion under SCR 296(2) should be exercised against Mr Lauro and in favour of the respondent for the following reasons:
(a) Mr Lauro bears the onus of establishing the true facts concerning his knowledge about SCR 296. It is not possible to say where the truth lies as to when Mr Lauro first became aware of SCR 296 other than to find that it was certainly no later than 2 July 2018 when he raised the matter in correspondence with the respondent.
(b) Following the institution of the Full Court appeal on 19 January 2018, Mr Lauro issued further proceedings in the Magistrates Court with the same subject matter as the appeal. These were found by a Magistrate to amount to an abuse of the process of that Court. Mr Lauro then appealed to a single Judge of this Court (who dismissed the appeal).
(c) Mr Lauro has continually sought to delay the resolution of the appeal proceedings in various interlocutory applications.
2. There are numerous factors tending against the exercise of the discretion to grant a stay of execution of the judgment, including that:
(a) The appeal has been dismissed by operation of SCR 296(2) and the present application to reinstate it has been refused. Mr Lauro’s prospects of succeeding in both an appeal against the present judgment and in a reinstated appeal to the Full Court are low.
(b) The respondent could and would repay the judgment sum if necessary.
(c) There is no evidence that Mr Lauro could not pay the judgment sum or would be rendered bankrupt by doing so.
(d) Mr Lauro has not established that he would not be able to pursue the appeal if judgment were enforced.
Legal Practitioners Act 1981 (SA) s 41; Magistrates Court (Civil) Rules 2013 (SA) r 2(1), r 87; Supreme Court Civil Rules 2006 (SA) r 289(1)(a), r 289(1)(b), r 289(3), r 290(1), r 290(2), r 290(6), r 291(1), r 294, r 296, referred to.
Gallo v Dawson (1990) 93 ALR 479; Lauro v Minter Ellison Lawyers [2017] SASC 197; Lauro v Minter Ellison Lawyers [2018] SASC 70; Lauro v Minter Ellison Lawyers [2018] SASC 159; Marmanidis v Germein [2017] SASC 103, discussed.
Alexander v Cambridge Credit Corporation Ltd (Receivers Apptd) (1985) 2 NSWLR 685; Commissioner of Taxation (Cth) v Myer Emporium Ltd (No 1) (1986) 160 CLR 220; Jackamarra v Krakouer (1998) 195 CLR 516; Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737; Kowalski v Sim & Ors [2019] SASCFC 96; Playford Vineyard Pty Ltd (ACN 604 608 157) v Wishford Nominees Pty Ltd (ACN 008 077 236) (No 2) [2018] SASC 152; Raedel & Raedel v Shahin [2018] SASC 95; Rickard v Testel Australia Pty Ltd [2017] SASC 144, considered.
LAURO v MINTER ELLISON LAWYERS
[2019] SASC 139Civil
PEEK J: Mr Eric Lauro applies for orders by way of an interlocutory application (the present application) concerning his proposed appeal to the Full Court against judgments of Hinton J on 22 December 2017 and 29 May 2018 and orders made (the Full Court appeal). The Full Court appeal in fact presently stands dismissed by dint of Supreme Court Rule 296(2) in that it was not set down for hearing within six months of its institution.
Mr Lauro now seeks the following orders:
1. That this Application, and the Appellant’s supporting Affidavit filed contemporaneously with this Application be accepted for filing.
2. That the within appellate proceedings (the Appeal) be reinstated.
3. That the Appellant be granted a 3-month extension of time from the hearing of this Application, to set down the Appeal.
4. That, to the extent that it may now be necessary, the execution of, or proceeding on, any judgment in favour of the Respondent against me be stayed pending the hearing and determination of the Appeal.
5. Such further or other orders that the Honourable Court may deem fit.
Background
On 28 June 2013, over six years ago, the respondent, Minter Ellison Lawyers (the firm), instituted proceedings in the civil division of the Magistrates Court against Mr Lauro for unpaid legal fees. After numerous and lengthy interlocutory proceedings initiated by Mr Lauro, the trial of the action was listed to commence on Monday 25 August 2014.
Mr Lauro’s failure to appear at the Magistrates Court trial
On 21 August 2014 at 4.57 pm, Mr Lauro emailed the Supreme Court Civil Registry advising that he wished to appeal against various orders made by Magistrate Milazzo on 12 August 2014 concerning interlocutory applications.
At 4.50 pm on 22 August 2014, Mr Lauro emailed the Magistrates Court Civil Registry and Mr Grant Mitchell, a firm partner (with a copy to Registrar of the Magistrates Court) indicating that he would appeal against the orders made by the Magistrate on 12 August 2014 and renewing his request that the trial scheduled to commence on 25 August 2014 be vacated. (It is to be noted that he made no mention of being ill).
Mr Mitchell, having received the 4.50 pm email, then emailed Mr Lauro and inquired as to whether he would be attending at the trial. Mr Lauro then responded by email to Mr Mitchell in the following terms at 5.12 pm on 22 August 2014:
Refer to previous correspondence, affidavits and submissions in court. I will not be present on Monday and your pretence of not knowing is an insult to your intelligence and unduly damaging to me. Any costs associated with this type of tactic your firm can bear. Forced communications after hours are also a nuisance that you have been repeatedly asked to stop. [Emphasis added]
This communication is important for at least three reasons. First, Mr Lauro was here plainly taking the stance that he refused to attend at the trial because of matters referred to in “previous correspondence, affidavits and submissions in court” and that, according to Mr Lauro, such intention not to attend would have been self-evident to anyone familiar with that material. Secondly, again, he made no mention of being ill. Thirdly, the Court was not advised in any way prior to 25 August 2014 that Mr Lauro did not intend to attend at the trial.
However, on the morning of Monday 25 August 2014, Mr Lauro sent a facsimile to the Magistrates Court in which he stated:
I am writing to advise that, in addition to other proper reasons already known by both the Court and the Plaintiff law firm, I will also be unable to attend Court today due to the fact that I have been medically indisposed since 21 August 2014 and that, last night, I was medically examined at home and diagnosed with viral gastroenteritis that has plagued other family members of late.
By email on Monday 25 August 2014 at 11.51 am the Magistrates Court Registry advised the appellant:
We have received your fax of 25 August 2014. His Honour has adjourned the matter to Tuesday 26 August 2014 to meet your convenience. Please note that His Honour has indicated that if you fail to attend on 26 August 2014 the matter will not be further adjourned on any basis.
On Tuesday 26 August 2014, at shortly after 9.00 am, Mr Lauro sent a facsimile to the Magistrates Court in which he stated:[1]
… I am writing to advise that, following initial medical examinations by locum doctors over the weekend (which doctors do not have ongoing care of the same patients), yesterday I was examined by my General Practitioner (who does not practise on weekends) and he has seen fit to extend my medical unfitness due to the viral nature of my condition. Annexed at page 2 of this facsimile is a copy of the fresh certification.
I remain under medical observation and will therefore be unable to appear in person in Court to confirm that I am in no position to conduct any defence, which I am also prevented from doing due to the procedural irregularities and conflict of interests in this mater, maladministration and unavailability of my witness till late October 2014 as set out in my recent Affidavits.
I am also being severely prejudiced by the Court’s gross delay in providing the reasons for decision given on 12 August 2014, which included Orders to leave the matter listed for trial on 25 August 2014 and that I have indicated I want to appeal. The Court has squandered 14 days out of the 21 days available to appeal.
In consequence of all proper reasons, I again request that, no further denial of justice and/or judicial abuse occur and that:
· The trial be vacated and that this matter be relisted for directions not prior to Monday, 20 October 2014 (but not between Wednesday, 23 to Friday, 24 October 2014 due to interstate commitments);
…
[1] As reproduced in the Judgment of Hinton J.
On Tuesday 26 August 2014 at 10.00 am, the trial was called on again. Mr Lauro was again not in attendance. The respondent applied for judgment in default and the Magistrate granted that application. The Magistrate ordered, inter alia, that Mr Lauro’s defence be struck out; that there be judgment in default for the amount of the claim, namely $12,526.06; that costs be allowed in the sum of $4,117.00; and that the respondent be awarded interest in the sum of $625.00.
Mr Lauro’s application to a Magistrate to set aside the default judgment
On 2 September 2014, Mr Lauro applied to the Magistrates Court, inter alia, for an order setting aside the default judgment. Such an application is governed by rule 87 Magistrates Court (Civil) Rules 2013 (MCCR) which provides as follows:
(1)The Court may set aside or vary a judgment (not being a final judgment).[2]
(2)The Court must not set aside such a judgment unless the party seeking to set it aside establishes that he or she –
(a) has an arguable case on the merits; and
(b) has a reasonable excuse for not having complied with these Rules, or an order of the Court, or any time limit fixed by these Rules or order of the Court, in respect of the action or proceeding.
(3)When setting aside a judgment the Court may order –
(a) payment to the other party of costs thrown away;
(b) payment or security under Rule 81.
[2] A final judgment is defined in rule 2(1) MCCR as meaning any judgment –
It is to be emphasised that rule 87(2) contains a mandatory conjunctive. For example, it is not sufficient to establish that one has “an arguable case on the merits” – one has to also establish compliance with rule 87(2)(b).[3]
[3] In Marmanidis v Germein [2017] SASC 103, [80] Hinton J observed: “… It is clear that the exercise of the discretionary power vested in the Magistrates Court by rule 87(1) MCCR is conditioned by rule 87(2) MCCR. That is, the discretion vested by rule 87(1) cannot be exercised unless and until the party seeking to have the non-final judgment set aside establishes that it has both an arguable case on the merits, and, a reasonable excuse for not having complied with the rules, or an order of the Court, or any time limit fixed by the rules or order of the Court, in respect of the action or proceeding. It may also be said that rule 87(2)(a) and (b) are in the nature of jurisdictional facts in that the discretion vested by rule 87(1) MCCR is not enlivened unless and until the Magistrate forms the opinion that the applicant has an arguable case and a reasonable excuse for non-compliance with the rules and orders of the Court and any time limits set by the Court. …”
The application came on for hearing on 15 September 2014 before Magistrate Milazzo. During the course of the argument, the Magistrate gave Mr Lauro the opportunity to address his Honour’s concerns. Thus, as Hinton J was later to observe in his judgment:[4]
27. Mr Mitchell then stated that he had the relevant communications of 22 August 2014 in his possession and was happy to provide them to the Court. The appellant opposed the tender of the documents on the grounds that they were not accompanied by an affidavit. During submissions the appellant time and again was concerned to argue that the Magistrate was biased. The Magistrate put to the appellant:
Let me be frank with you, because this might help. Apart from an unfilled prescription and the brief medical reports, sorry medical certificates, do you have any evidence at all that you were in fact ill. You see, it is not difficult to go to the doctors and complain that you have symptoms. Two things that concern me. One is that you get a script, a prescription on the Thursday which is not filled and the second thing is that you apparently tell Minter Ellison on the Friday that you are not going to come to trial come what may. … Do you want to clarify exactly what was said because if you do, then you will need to allow Mr Mitchell to hand me the communication. My understanding is that you had assigned no reason for not coming on the Monday and it said that you weren’t going to come. Now, I don’t understand how you could be confident on the Friday that your symptoms wouldn’t clear up by the Monday. Those are my two concerns.
28. The Magistrate invited the appellant to address his concerns. In the course of doing so the Magistrate also offered the appellant the opportunity of a short adjournment in order that he might obtain affidavits from the treating doctors who attended upon him. The appellant did not request any adjournment but relied upon the content of the medical certificates, and, in particular, that of Dr Giordano. The Magistrate then proceeded to commence giving ex tempore reasons. He was interrupted by the appellant. The Magistrate returned to the communications between the appellant and Mr Mitchell on 22 August 2014. The appellant remained opposed to Mr Mitchell handing the documents to the Court. Consequently, Mr Mitchell entered the witness box, was sworn, and the documents were proved. They were then received as exhibit P1. …
[4] [2017] SASC 197.
The Magistrate found that Mr Lauro did not have a genuine reason for not attending Court on Tuesday 26 August 2014 and therefore did not have “a reasonable excuse for not having complied with these Rules, or an order of the Court” as required by rule 87(2)(b). Thus his Honour stated:
6. Mr Mitchell has now put before me communications between his firm and Mr Lauro on 21 August in the afternoon. In his response to the query ‘do you intend to attend court on Monday’, Mr Lauro referred to previous correspondence, affidavits and submissions in Court and said he would not be present. He continued by observing that Mr Mitchell’s pretence of not knowing his intention was an insult to his intelligence. I take that to mean that because Mr Lauro had advised Minters that he intend [sic] to appeal my orders, he was not going to come to Court irrespective of any other consideration. That, it seems to me is the clear interpretation of the communication.
7. I am doubtful that Mr Lauro did in fact suffer symptoms of gastroenteritis on 21 August but had he suffered those symptoms, it was in his interest to advise the Court on the Friday and to fill the prescription that was provided to him by the locum.
8. I am satisfied that Mr Lauro had no intention to attend the hearing in any event. Any illness Mr Lauro might have had did not bear on his failure to attend court. He simply refused the [sic] attend Court because he knew that the Court would not grant a further adjournment.
9. The conclusion to draw from Mr Lauro’s communication to Mr Mitchell is that it was his intention all along not to attend the hearing and to make application to set aside any default judgment that might be entered against him in due course.
10. I am fortified in coming to these conclusions by the fact that there has been a previous adjournment of the trial. The matter was originally listed for trial on 3 July and that trial date was vacated on Mr Lauro’s application. Mr Lauro has also made applications that a number of other Magistrates in this Court disqualify themselves from hearing his matter.
11. Based on all of these matters, I am not satisfied that Mr Lauro had a genuine reason for not attending Court on either day. He was given the opportunity to attend on Tuesday, in person, and give reasons at that time as to why he couldn’t conduct his defence. Had Mr Lauro attended Court ill on the Tuesday, the matter would have no doubt been adjourned. He decided not to do that.
This conclusion was sufficient to require that the application be dismissed on the basis that in absenting himself from the Court on Tuesday 26 August 2014, Mr Lauro did not have “a reasonable excuse for not having complied with these Rules, or an order of the Court”. However, the Magistrate also dealt with a further and independent requirement under rule 87(2)(b) thus:
13. This brings me to the second matter. On an application to set aside a judgment in default there is an onus on the defendant to satisfy the court he does have a reasonable defence.
14. Mr Lauro’s defence throughout this has relied upon a somewhat strained interpretation of a letter written in late 2011. I am not satisfied that Mr Lauro has a defence to the present claim. In all the circumstances his application is dismissed.
Accordingly, the Magistrate dismissed the application and ordered Mr Lauro to pay the respondent’s costs in the amount of $180.
Mr Lauro’s initial appeal to a single Judge of the Supreme Court
On 7 October 2014, Mr Lauro filed his Notice of Appeal (against decisions in the Magistrates Court) to a single Judge of this Court (the single Judge appeal). However, prior to the appeal coming on for hearing, Mr Lauro filed some five interlocutory applications in this Court seeking various orders.[5]
[5] Those interlocutory applications were filed on 30 October 2014 (FDN 3), 19 May 2015 (FDN 7), 11 November 2015 (FDN 11), 19 February 2016 (FDN 14) and 10 August 2016 (FDN 17). For a summary of their disposition, see Lauro v Minter Ellison Lawyers (No 2) [2018] SASC 70, [50]‑[114].
Largely because of the need to dispose of these various applications, the appeal did not came on for hearing before Hinton J until 20 April 2017 when the argument was heard. It is to be noted that during the course of argument that day a number of grounds of appeal concerning previous interlocutory applications were abandoned.[6] Judgment was reserved.
[6] See the later judgment in Lauro v Minter Ellison Lawyers (No 2) [2018] SASC 70, [49]-[73].
Lauro v Minter Ellison Lawyers [2017] SASC 197 (22 December 2017)
Hinton J delivered judgment on 22 December 2017.[7] His Honour analysed in detail the circumstances surrounding the adjournment of the first day of trial, the Magistrate’s reasons for awarding default judgment to the firm on the second day of trial, and the later unsuccessful application to set that default judgment aside. His Honour summarised the opposing contentions of the parties and stated:[8]
6. As mentioned, the appellant now appeals against the dismissal of his application. He contends that the Magistrate erred in not setting aside the default judgment in two respects: first, he contends that in the wake of the evidence of his ill-health it was unreasonable and unjust for the Magistrate to determine that he did not have a reasonable explanation for his non-attendance on 26 August 2014. Second, the Magistrate was wrong to conclude that the defence as filed and served did not disclose an arguable defence.
[7] Lauro v Minter Ellison Lawyers [2017] SASC 197.
[8] Lauro v Minter Ellison Lawyers [2017] SASC 197.
Later his Honour stated as to the firm’s contentions:[9]
46. The respondent submitted that the conclusions reached by the Magistrate were open. The appellant having no intention to attend, as is evidenced from his email exchange with Mr Mitchell, the happenstance of his illness could not provide a reasonable excuse. As to whether or not the appellant had an arguable defence, counsel for the respondent pointed to evidence suggesting that he had conducted himself in a manner consistent with acceptance of the retainer referred to in the letter of 16 November 2011. He argued that there was then evidence of a contract and evidence of performance or at least part-performance that could not be disputed. In those circumstances an argument to the contrary was untenable. Counsel submitted that the argument that the terms of the contract were unknown to the appellant was not raised by the defence.
…
51. In paragraph [6] the Magistrate turns to P1. In P1 the appellant makes plain not only an intention not to attend his trial on the following Monday come what may, but that his reasons for not attending are the long held complaints he has harboured and made known to the respondent about having to proceed to trial. In my view the appellant’s submission on 15 September 2014 in which he suggested that he did not provide a reason to Mr Mitchell for his intended non-attendance and that his reason held at the time of the email of 22 August 2014 was his illness cannot be accepted. Such conclusion provides reason to doubt the truthfulness of the appellant. In my view the Magistrate’s construction of the appellant’s email to Mr Mitchell of 22 August 2014 was not only open, but correct. [Emphasis added]
[9] Lauro v Minter Ellison Lawyers [2017] SASC 197.
As to the subsequent application to the Magistrates Court to set aside the judgment, his Honour concluded:[10]
55. In my view it was open to the Magistrate to conclude that the appellant did not have a reasonable excuse for his non-attendance at trial on 26 August 2014. So concluding the discretion contained in rule 87(1) MCCR was not enlivened and the application was rightly dismissed. …
[10] Lauro v Minter Ellison Lawyers [2017] SASC 197.
However, immediately before dismissing the appeal, his Honour made the following obiter statement:[11]
55. … No need arises to consider the appellant’s contentions in relation to rule 87(2)(a). Nonetheless, as the matter was argued I indicate that in my view it was not open to the Magistrate to be satisfied that the appellant did not have an arguable case on the merits. I accept the appellant’s submission that the defence puts in issue the question of what were the terms of any contract between the appellant and the respondent. I assume the letter to which the Magistrate refers in paragraph [14] of his reasons is the letter of 9 November 2011. If acceptance of the terms of the contract is said to be located in the email of 16 November 2011, that email purports to refer to an email of 14 November 2011 and other communications. It is not clear then that in paragraph 6 of the email the appellant is referring to the penultimate paragraph of the letter of 9 November 2011. On the limited information before me, I consider that there is an arguable case as to the terms of any contract.
[11] Lauro v Minter Ellison Lawyers [2017] SASC 197.
The firm made an application for costs. His Honour indicated that he was minded to grant costs but counsel appearing for Mr Lauro requested time to file further written submissions as to costs and the Judge deferred determination of a costs decision to enable that to be done.
Further post judgment applications to Hinton J by Mr Lauro
Instead of supplying written submissions as to costs, Mr Lauro instead filed a Notice of Appeal to the Full Court on 19 January 2018. He also proceeded to file interlocutory applications on 31 January 2018 (FDN 22) and 16 February 2018 (FDN 24) which sought the setting aside of the judgment delivered on 22 December 2017 and a stay of the question of costs.
On 27 February 2018, the two interlocutory applications in FDN 22 and FDN 24 came on for hearing before Hinton J. Mr Lauro was by that point unrepresented. In his written submissions filed on 20 March 2018 pursuant to Hinton J’s orders on 27 February 2018, Mr Lauro also referred his Honour to two further interlocutory applications, FDN 7 and FDN 17, which had been filed prior to the hearing of the appeal and which he submitted remained live and required determination. Those applications sought, inter alia, a stay of proceedings “as a matter of justice” or in consequence of the respondent’s alleged failure to comply with s 41 of the Legal Practitioners Act 1981; and “directions and/or … action” as to the institution of contempt proceedings against Mr Mitchell. Finally, Mr Lauro also sought an extension of time within which to comply with the obligations contained in rule 290 of the Supreme Court Civil Rules 2006 (SCR) concerning the Full Court appeal. His Honour reserved judgment on all matters.
On 20 March 2018, the date upon which Mr Lauro filed his written submissions, he filed a further interlocutory application (FDN 31). In the supporting affidavit, Mr Lauro stated that the application was filed “to regularise the orders/relief sought in the within Appeal proceedings”.
Lauro v Minter Ellison Lawyers (No 2) [2018] SASC 70 (29 May 2018)
On 29 May 2018, Hinton J delivered judgment in Lauro v Minter Ellison Lawyers (No 2).[12] His Honour dismissed all of the interlocutory applications dealt with and gave detailed reasons. Of present relevance, his Honour concluded thus:
[12] [2018] SASC 70.
109. Lastly, I deal with the appellant’s application for an extension of the times specified in rule 290(1) SCR. In my view this application misunderstands the process of seeking permission to appeal as provided for by the rules.
110. Under s 50(4)(a)(ii) of the Supreme Court Act 1935 the judgment delivered 22 December 2017 is one in relation to which an appeal lies to the Full Court by permission of that Court. Rule 289(1)(a) SCR requires that such appeal be commenced in the ordinary way, that is, by the filing of a notice of appeal in accordance with rule 282(2) SCR within the time limit set down in rule 281(1) SCR. As mentioned above the appellant filed a Notice of Appeal (FDN 27) on 19 January 2018. His Notice of Appeal was not filed within the 21 calendar days prescribed by rule 281(1) SCR. Rule 295(1)(a) SCR vests power in the Court to extend the time for commencing an appeal or taking any step in the appeal. Rule 295(3)(a) SCR provides that the power vested by rule 295(1)(a) SCR may be exercised on an interlocutory application before a single Judge.
111. To the extent that the appellant requires an extension of time to 19 January 2018 in which to commence an appeal to the Full Court, such extension is granted.
112. Next under rule 289(1)(b) SCR the appellant is to make an application to the Judge who determined the appeal for permission to appeal “within 14 calendar days” of the judgment. Such application is to be made in accordance with rule 291(1) SCR. The appellant is yet to make an application under rule 289(1)(b) SCR and is out of time. I extend time in which the appellant is to make the application required by rule 289(1)(b) SCR to within 21 days of the date of this judgment. The appellant has already had more than three months in which to make the application contemplated by rule 289(1)(b) SCR. No reason for an extension of six months has been advanced other than convenience. The appellant was told that he should not delay in prosecuting his appeal whilst awaiting these reasons. This matter has been in this Court since 2014. It should be brought to a conclusion as quickly as is reasonably possible. In these circumstances I am not minded to grant any greater extension of time.
113. At present rule 290 is not engaged and no need arises to consider any application for an extension of time in relation thereto.
Conclusion and orders
114. For these reasons the Court:
1. dismisses the second, seventh and eighth interlocutory applications (FDNs 7, 24 and 31);
2. if it is necessary, and to the extent that it is necessary, dismisses the fifth interlocutory application (FDN 17);
3. orders that the appellant pay the respondent’s costs of and occasioned by the appeal (SCCIV-14-1393), such costs to be taxed if not agreed;
4. orders that:
a. the appellant is granted an extension of time to 19 January 2018 in which to file a Notice of Appeal to the Full Court in the matter SCCIV-14-1393.
b. the appellant is granted an extension of time in which to make the application for permission required by rule 289(1)(b) SCR to within 21 days of the date of this judgment.
As to his Honour’s remarks at paragraphs [110] to [113] of his judgment (reproduced above), may I say that there are two alternative procedures available to a person wishing to appeal to the Full Court when permission to appeal is required, as here.
First, the SCR 289(1)(a) procedure is to file an appeal without first gaining permission to appeal. Here, the applicant must commence “the appeal in the ordinary way”; that is, he has a time limit of 21 days from the date of delivery of the judgment within which to file and serve the appeal. Importantly, he must include in the Notice a request for the necessary permission.[13]
[13] When the SCR 289(1)(a) procedure is adopted the applicant must also comply with the requirements set out in SCR 290(1) and (2). When such requirements are complied with, the Full Court then has the range of options set out in SCR 290(6) whereby the Court will deal with such application for permission to appeal.
Secondly, and alternatively, there is the SCR 289(1)(b) procedure which is quite different; it is to seek permission to appeal from the trial Judge before filing an appeal. Here, the applicant has a time limit of 14 days from the date of delivery of the judgment within which to make application for permission to appeal. The applicant may orally raise the matter of permission upon delivery, or may proceed by interlocutory application.[14]
[14] See SCR 291(1). Although the date for hearing the application may be set beyond the 14 days following judgment, this procedure does need to be expeditious because, from the respondent’s point of view, the time regime for bringing the appeal to hearing will not commence until (and unless) permission to appeal is granted. It may be added that if the applicant is refused permission to appeal by the trial Judge, he is then able pursuant to SCR 289(3) to revert to the SCR 289(1)(a) procedure, that is he may within five days of the refusal renew the application to the Full Court by filing the appeal, including therewith a request for the necessary permission, and complying with the further requirements set out in in SCR 290(1) and (2).
With respect, those two distinct and alternative processes were perhaps not clearly separated in his Honour’s remarks at paragraph [112] of his judgment (reproduced above). The fact is that Mr Lauro specifically elected for the SCR 289(1)(a) procedure (and not the SCR 289(1)(b) procedure) in his First Notice of Appeal (Full Court) filed on 19 January 2018, wherein he stated:[15]
If permission to appeal to the Full Court is required under Rules 288 or 289 of the Supreme Court Rules (“SCR”) the appellant seeks permission to appeal to the Full Court under R 289(1)(a).
[15] First Notice of Appeal (Full Court) filed on 19 January 2018. However, Mr Lauro appears not to have complied with Rules 290(1) and (2) as referred to above.
Therefore, what occurred is that the Judge made an order allowing Mr Lauro to apply to his Honour for permission out of time rather than seek permission direct from the Full Court (as he had elected to do in his Notice of Appeal). However, it is important to note that this order did not impinge on the validity of the institution of the appeal proceedings on 19 January 2018 and that it was from that date that the six month set down period set out in SCR 296(2) had commenced to run (and continued to run).
However, it is unnecessary to dwell further on this because the Judge did recognise in that same paragraph [112] that, by 29 May 2018 when his Honour delivered judgment in Lauro v Minter Ellison Lawyers (No 2),[16] more than four months had already expired since the filing of the appeal on 19 January 2018. The Judge found that “No reason for an extension of six months has been advanced other than convenience” and that “I am not minded to grant any greater extension of time.”[17] In other words, an extension of one day was granted in relation to the actual filing of the appeal,[18] but no modification at all was made to the required timetable for progressing the hearing of the appeal.
[16] [2018] SASC 70.
[17] [2018] SASC 70, [112].
[18] As noted elsewhere, this extension of one day was not in fact needed, the Notice of Appeal having been filed on the penultimate business day prior to the expiration of the 21-day period in which to lodge the Notice of Appeal.
Mr Lauro’s application for permission to appeal from Hinton J’s judgments
On 18 June 2018, pursuant to Order 5 made on 29 May 2018, Mr Lauro filed a further interlocutory application. He sought, inter alia:
-permission to appeal from the judgments and orders of Hinton J in both Lauro v Minter Ellison Lawyers and Lauro v Minter Ellison Lawyers (No 2) delivered 22 December 2017 and 29 May 2018 respectively; and
-permission to amend his First Notice of Appeal to the Full Court to incorporate a challenge to the judgment and orders made on 29 May 2018. A copy of the proposed “Second Notice of Appeal” dated 26 June 2018 was provided to the Judge.
On 28 June 2018, the matter came on for hearing before Hinton J. His Honour ordered that “noting that grounds 1(a), 1(b), 1(c), 1(d), 1(e), 1(g) and 1(h)(i) relate to the question of whether the learned Judge erred in failing to conclude that the Appellant did not have a reasonable excuse for not having complied with the rules of the Magistrates Court of South Australia, permission to appeal on those grounds is granted”. His Honour also granted permission to appeal on grounds 1(i) (arguable case) and 1(n) (costs). Thus, the grounds as to which permission to appeal was granted were as follows:
With respect to the 22 December 2017 orders, the Appellant’s grounds of Appeal are:
(a) The learned Justice erred in giving excessive weight to the Appellant’s email communication with the Respondent on 21 August 2014, which communication was only relevant to the trial date of 25 August 2014, and not the adjourned trial of 26 August 2014 (paragraphs [51, 52]).
(b) The learned Justice erred in giving insufficient weight or no weight to the fact that the Magistrate required the Appellant’s antecedent attendance to establish a reasonable excuse (paragraph [44]).
(c) The learned Justice erred in giving insufficient weight or no weight to the fact that, on 26 August 2014 the Magistrate stated that, in all likelihood, he would have granted the Appellant a trial adjournment had the Appellant attended court on the day (paragraph [44]).
(d) The learned Justice erred in not giving sufficient weight to the Appellant’s reasonable excuse on the adjourned trial date of 26 August 2014 (i.e. that, on that day, the Appellant was affected by a contagious ailment as established by a medical report relied on at the Magistrates’ Court hearing on 15 September 2014 to set aside the default judgment), after determining that such condition would have “undoubtedly” amounted to a reasonable excuse (paragraph [54]).
(e) The learned Justice erred in drawing adverse conclusions about the Appellant’s illness and medical treatment, and regarding such illness a mere happenstance (paragraph [53]), in circumstances where:
(i) the Appellant’s communications as set out in paragraph 4(a) had no relevance, and ought to have had no bearing on the Magistrate’s mind, by reason of the fact that, on 25 August 2014, the Magistrate adjourned the trial in any event;
(ii) both the learned Justice and the Magistrate in question lack the requisite medical qualifications and otherwise had no medical evidence before them in support of their medically unqualified and adverse views and conclusions against the Appellant and his medical treatment at the relevant time.
[PARAGRAPH (f) OMITTED]
(g) The learned Justice erred in giving weight to the Magistrate’s purported familiarity with the Appellant, and failed to have proper regard to the evidence before him including:
(i) The Court Record bearing no evidence of non-compliant or contemptuous conduct on the part of the Appellant;
(ii) the Appellant’s actions being consistent with a bona fide intention to defend the claim and not ignore or disengage from the legal process; and
(iii) the Appellant’s medical certification;
which evidence, when properly construed, would have resulted in a different determination of whether the Appellant had a reasonable excuse not to attend Court on 26 August 2014.
(h) The learned Justice erred in giving weight to the Magistrate’s purported familiarity with the Appellant, history and approach of the matter (paragraph [47]), without giving due regard to the bias, procedural unfairness and/or denial of natural justice, and intimidation complained of by the Appellant against the Magistrate throughout the lower Court proceedings, including:
(i) the Magistrate adjourning the hearing on 15 September 204 and leaving the Court room, only to resume same hearing after causing the Appellant to leave;
…
(i) The learned Justice having found “that there is an arguable case as to the terms of any contract” (at paragraph [55]), erred by not allowing the Appeal and by not giving proper regard to:
(i) the fact that, at all times, the Appellant had a valid defence;
(ii) the fact that, at all time, the Appellant had and [sic] bona fide intention to defend the claim;
(iii) the significant prejudice that the unrepresented Appellant would suffer, relative to a leading law firm, by upholding the judgement in default;
(vi) the apparent breaches, by the Respondent, of relevant statutory and professional obligations concerning retainer agreements;
(v) the fact that the Respondent only had a retainer with the Appellant’s father, which is the subject of separate proceedings concurrently instituted and being pursued by the Respondent (action no. DCCIV-13-1810).
…
With respect to the 29 May 2018 orders, the Appellant’s grounds of Appeal are:
(n) The learned Justice erred in ordering that the Appellant pay the Respondent’s costs of and occasioned by the Appeal, by failing to take into account relevant facts and/or factors including:
(i) the Respondent’s conduct based on the evidence adduced by the Appellant (e.g. the Respondent unreasonably arguing that the Appellant did not satisfy Rule 87(2)(a) MCCR);
(ii) that, while “lion share of the argument was devoted to” rule 87(2)(b) MCCR, the argument related to rule 87(1)(a) MCCR that the Respondent lost (at paragraphs [104]) was still a share of the hearing of the Appeal;
such that, the Learned Justice ought to have found that reasons to depart from the ordinary rule existed and/or the justice of the case warranted a reduction in the costs awarded to the Respondent.
Immediately after the argument on 28 June 2018, the following exchange occurred between the Judge and Mr Lauro:
HIS HONOUR: So you’re going to have to pay close attention to the rules now as to what you’ve got to do. I’m sure there are time limits in place by which you have to get casebooks ready and get your outline of argument in, all right?
MR LAURO: Yes. On that particular point, I will of course be very prudent in checking what those time limits are …
…
HIS HONOUR: What you have is – to the extent that you needed an extension of time, you got it. There’s no objection to your second notice of appeal being filed, so that’s been accepted. Today’s debate has taken place on the basis of the second notice of appeal dated 26 June 2018. To the extent that I’ve granted you permission, that notice of appeal now goes forward to the Full Court. You’re the appellant. You have carriage of that appeal, so you’ll have responsibilities under the rules and I suggest you read them thoroughly and discharge them. I’m not sure it’s for the registrar to advise you about how to conduct matters. If you have a query about a particular rule, by all means speak to him. [Emphasis added]
Mr Lauro’s Second Notice of Appeal to the Full Court
On 2 July 2018, Mr Lauro filed and served his amended Second Notice of Appeal to the Full Court reproducing the above grounds of appeal.[19] He also emailed Mr Mitchell and Mr Coppola in the following terms:
By way of service, and pursuant to the orders made by the Honourable Justice Hinton of the Supreme Court of SA on 28 June 2018, granting me permission to appeal to the Full Court of the Supreme Court of SA, in Lauro v Minster Ellison Lawyers in action no. SCCIV-14-1393, I attach a copy of my amended Second Notice of Appeal filed today.
I take this opportunity to also seek Minter Ellison Lawyers’ consent to dispense with r296(1) of the Supreme Court Civil Rules 2006 (SA) and allow me to set down this appeal by or before 30 November 2018, which is within the 6 month timeframe specified under r 296(2) of the said Rules. [Emphasis added]
[19] It is quite common for a second (or further) amended Notice of Appeal to be filed and the practice is regulated by SCR 294. Such amendment has no effect upon the continued running of the six months from the date of the institution of the appeal.
On 5 July 2018, Mr Mitchell responded as follows:
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.
Two things follow from this exchange of correspondence. First, it appears clear that Mr Lauro here exhibits a knowledge of SCR 296 and the set down rule.
Secondly, Mr Lauro was put on notice, first by Hinton J and shortly thereafter by Mr Mitchell, that a failure to strictly abide by the time requirements would result in the respondent applying to have the appeal dismissed.
Consideration of the present application
The present application came before me in the Chamber List on 21 June 2019 (after Mr Lauro had objected to another Justice hearing the matter). On that day, I heard submissions from both sides. Counsel appearing for the respondent gave an undertaking that the respondent would not enforce the judgment against Mr Lauro at least until such time as I gave judgment on the application. I reserved judgment.
Rule 296 – the set down rule
Clearly, Mr Lauro failed to set down the appeal within six months from it being filed on 19 January 2018 and his Full Court appeal was automatically dismissed on about 19 July 2018 pursuant to SCR 296 (the set down rule). SCR 296 provides:
(1)If the party having the carriage of an appellate proceeding fails to set the proceeding down for hearing with 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 with 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]
The prima facie effect of SCR 296(2) is that an appeal is dismissed after the six month period expires and this is so whether the appellant knows of the rule or not. As McHugh J pithily observed in Gallo v Dawson, “[l]ack of legal knowledge is a misfortune, not a privilege”.[20] However, a positive finding that an unrepresented litigant was unaware of such a rule would be a factor to be taken into account in exercising a discretion under SCR 296(2). Obviously the onus is on Mr Lauro to establish such unawareness and an important question therefore arises as to the extent of his awareness of the set down rule at relevant times.
[20] (1990) 93 ALR 479, 481.
Mr Lauro’s written submissions dated 19 June 2019
In his written submissions dated 19 June 2019, upon which he relied at the hearing before me, Mr Lauro states:
2.1. The Appellant was not aware of the existence and/or operation of Supreme Court Rule 296 (the “set down rule”).
2.2. The failure to set down the Appeal was not intentional.
2.3. Upon being advised by the Appeals Clerk of the setting of the index by email dated 7 February 2019, the Appellant requested:
2.3.1. The opportunity to discuss the context of the index, and
2.3.2. That the index not be settled yet.
2.4. By email dated 8 February 2019, the Appeals Clerk consented and thereby recalled the settled index. Refer to Exhibit “EL 14-2” of the Appellant’s Affidavit of 8 April 2019 (which is further supported by the email correspondence dated 3 April 2019 in Exhibit “EL 14-1” of the same Affidavit).
…
2.7. The 6-month period to set down imposed by Supreme Court Rule 296(2) appears to have expired as early as 18 July 2018.
…
2.9. The Appellant was not aware of the set down rule. He sets out in paragraph 14 of his Affidavit of 8 April 2019 the various events impacting upon his life. [Emphasis added]
It is to be noted that Mr Lauro does not dispute the unassailable fact that the six month period commenced running from 19 January 2018. Rather he twice (at 2.1 and 2.9 above) makes the positive assertion that he was not aware of that rule; the intended inference appears to be that he only became aware of it very recently.
Mr Lauro’s affidavit sworn on 8 April 2019
In his affidavit sworn on 8 April 2019, Mr Lauro deposes:
3. On 27 April 2019, the Respondent sent me a letter advising, for the first time, that:
3.1. pursuant to Supplementary Court Rule 240(6), the applicable 7 days to lodge and serve case books in the Appeal have passed;
3.2. pursuant to Supreme Court Rule 296(2), the applicable 6 months to set down the Appeal have passed;
3.3. the Appeal may now be taken to be discontinued and lapsed;
3.4. unless I file and serve an Application to reinstate the Appeal within 7 days, the Respondent will assume I no longer wish to pursue the Appeal and it will commence enforcement of the judgment against me.
4. On 3 April 2019, inter alia, I informed the Respondent that I wished to pursue the Appeal.
5. A copy of the above correspondence is marked and annexed hereto as Annexure “EL14-1”.
6-month time limit to set down the Appeal
6. My Notice of Appeal was filed on 19 January 2018, and amended on 2 July 2018 following permission to appeal to the Full Court of this Honourable Court granted by the Honourable Justice Hinton on 28 June 2018.
7. A review prompted by the Respondent’s letter dated 27 April 2019, leads me to conclude that the 6-month time limit stipulated under Rule 296 above lapsed either or on about 19 July 2018 or 2 January 2019.
8. It is not until after I received the letter from the Respondent annexed hereto that it has become known to me that the relevant 6-month time limit has lapsed.
…
18.4. At no time prior to the receipt of the Respondent’s letter dated 27 April 2019 (the relevant period) was it known or made known to me that:
18.4.1 The 6-month time limit to set down the appeal lapsed; [Emphasis added]
The clear purport of the affidavit is that it was not until his receipt of the respondent’s letter dated 27 March 2019 that Mr Lauro became aware of the six month set down rule; and accordingly, the focus of both his affidavit and his written submissions is very much what occurred after 27 March 2019 rather than the relevant fourteen month period from 19 January 2018 to 27 March 2019.
Mr Lauro’s oral submissions at the hearing on 21 June 2019
At the hearing on 21 June 2019, the following dialogue occurred:
MR LAURO: So, moving on to my affidavit; I’ve tried to summarise what’s caused this application, which was basically a letter from Minter Ellison dated 27 April 2019, where they complain that within seven days I have failed to lodge and serve case books, and that I failed to have my appeal set down within six months.
They say that the appeal is now taken to be discontinued and lapsed, and then they gratefully invite me by saying ‘Unless you file and serve an application to reinstate the appeal within seven days’, the respondent will assume I no longer want to pursue the appeal. So, I’ve done everything necessary, as quickly as I could be; bearing in mind, your Honour, I’m criticised also for not providing details of my personal circumstances.
I’ve spent, since this inaccurate chronology begins, I’ve spent some 19 business days away from -
HIS HONOUR: You can point to material in your affidavit but you’re not here to give evidence from the bar table. You very well know that, Mr Lauro.
MR LAURO: That’s why I was saying I have not had the chance to respond and I hope I get given the chance. I received the document only last night.
HIS HONOUR: What document are you talking about? The written submissions?
MR LAURO: Yes. But anyway that’s a side issue in itself. So I’ve taken all the steps necessary since Minter Ellison brought to my attention this issue about the six months. I’ve been in constant contact with the appeals clerk and as I understand it the seven days that I’m criticised of not having met are not triggered until such time as the index is settled.
HIS HONOUR: But really the gravamen of the situation is the six-month period.
MR LAURO: That’s right.
HIS HONOUR: It’s really that that you’ve got to address. [Emphasis added]
It would seem from the passages in emphasis above that Mr Lauro is here continuing to positively claim that it was not until receiving the 27 March 2019 letter from the firm that he became aware of “this issue about the six months”.
However, later dialogue that occurred would suggest that Mr Lauro actually knew about the set down rule long before 27 March 2019:
HIS HONOUR: Look, I just want to be sure what you’re saying. Now looking at your submissions, do you have those there in front of you?
MR LAURO: Yes.
HIS HONOUR: You haven’t actually paginated them.
MR LAURO: I apologise.
HIS HONOUR: The page that begins with a heading ‘2. Explanation for Failure to Comply with the Set Down Rule’, do you see that?
MR LAURO: Yes.
HIS HONOUR: So 2.1: ‘The appellant was not ... the set down rule.’ Do you see that?
MR LAURO: That’s right, yes.
HIS HONOUR: Now when did you first become aware of the existence of that rule?
MR LAURO: Well, it was after my hearings with Hinton J where he said ‘Now you have to make sure that you follow the procedure. I’m giving you permission, make sure that you follow the procedure.’
HIS HONOUR: So are you saying then that on that occasion when he gave you that permission and that’s being 28 June 2018 it was there that he gave you certain warnings about you making sure that you follow the appropriate time limits.
MR LAURO: Yes, in very general terms.
HIS HONOUR: Indeed, but as a result of those general terms did you then go and look at the rules and find out about rule 296?
MR LAURO: I would have spoken with the registry and the appeals clerk.
HIS HONOUR: Right. That was the first time that you became aware of the existence of rule 296.
MR LAURO: I believe so, yes. [Emphasis added]
Thus it would appear that Mr Lauro here asserts that it was shortly after 28 June 2018 that he became aware of SCR 296 rather than not until the letter from the firm dated 27 March 2019. Indeed, it is to be noted that on 2 July 2018, Mr Lauro sent an email to Minter Ellison (reproduced above at paragraph [38]) in which he asked the firm “to dispense with r296(1) of the Supreme Court Civil Rules 2006 (SA)” and specifically referred to “the 6 month timeframe specified under r 296(2) of the said Rules”.
Mr Lauro seeks to positively rely on a lack of knowledge of the set down rule in order to found an exercise of discretion in his favour under SCR 296. However, the onus is upon him to demonstrate what the true facts are concerning his knowledge; and the assertions he has made are disturbingly inconsistent.
Two possibilities already discussed are as follows. The first is that Mr Lauro only came to know of SCR 296 as a result of receipt of the letter dated 27 March 2019 from the firm. The second is that he knew much earlier, from shortly after 28 June 2018 when he made inquiries of Registry staff and was then informed of the requirements of SCR 296.
However, a third possibility is that he knew of SCR 296 still earlier than that, quite possibly at the time he instituted the appeal at the Registry on 19 January 2018. In his supporting affidavit affirmed on 8 April 2019, Mr Lauro deposed that: he has a demanding full-time job which requires frequent interstate travel; he has ongoing carer’s obligations; he has been actively involved in other legal proceedings; and he has been required to attend to his own medical needs. But these claims are purported excuses for him not having complied with the set down rule rather than the giving of reasons as to how it was that he did not know about the rule. Indeed, Mr Lauro has given no explanation as to how it was that he had actually got through the exacting process of drafting and filing the First Notice of Appeal (with the associated necessary liaison with Registry staff) without ever becoming aware that the appeal would be dismissed if it had not been set down for hearing within six months of lodgement.
I am left in a position in which I have no faith at all in Mr Lauro’s factual assertions; I am not able to say where the truth lies as to when Mr Lauro did first become aware of SCR 296, other than I find that it was certainly no later than his sending the email of 2 July 2018 to the firm.
Mr Lauro’s conduct during the six month period beginning 19 January 2018
As for what Mr Lauro was actually doing during the period from 19 January 2018 onwards, he said this in his affidavit:
…
18.5. Between the day I commenced the Appeal and the Respondent’s letter dated 27 April 2019, I have taken the following steps and faced the following curtailments:
18.5.1. I have a demanding full-time job (Monday to Friday), and I have to often travel interstate (e.g. with some 14 return trips over a relevant period);
18.5.2. I have on-going carer’s obligations towards my elderly parents due to their medical needs and others especially on weekends;
18.5.3.I have had to become actively involved in other legal proceedings including the overarching one that interests my father and the Respondent, which has aggravated my father’s medical (un)fitness;
18.5.4.I have had to attend to my own medical needs.
19. The table below seeks to succinctly detail the above matters over the relevant period:
Dates (period)
Description (comments)
19 January 2018
Notice of Appeal filed subject to permission to Appeal (on time)
2 July 2018
Second Notice of Appeal filed upon permission to appeal granted on 28 June 2018 (on time)
16 July 2018 to 29 January 2019 (6 months)
Pursuing related appellate proceedings SCCIV-18-848 re: invalidity of alleged retainer (on time)
19 July 2018 to date (7 months+)
Dealing with Draft Index lodged (on time and subject to communications last entered into on 3 April 2019)
17 September 2018 to 28 February 2019 (5 months)
Dealing with overarching action no. DCCIV-13-1810 between the Respondent and my father, plus related appellate proceedings SCCIV-18-1117 (on time)
10 December 2018 & 4 January 2019 (2 weeks)
Dental surgery and recovery (delayed due to legal actions involving the Respondent)
28 January 2019 to date (2.5 months+)
Dealing with default judgment in overarching action no. DCCIV-13-1810 the subject of no notice, and discovered on 28 January 2019 related appellate proceedings SCCIV-18-1117
A number of comments may be made concerning this section of the affidavit. First, it is to be noted that for the period up to 16 July 2018 (in the third row), there is no claim for the performance of any act directed to setting down the appeal.
Secondly, what is absent from the table (and from the affidavit) is that for a large percentage of the six month period from 19 January 2018 to 19 July 2018 (and continuing beyond that date), Mr Lauro was engaged in an intense process of attempting to have the default judgment of Magistrate Milazzo set aside by commencing further proceedings in the Magistrates Court which have been found to have amounted to an abuse of the process of that Court.
After spending an unknown period of time in preparation, Mr Lauro on 13 February 2018 commenced proceedings against the respondent in the Magistrates Court seeking:
-a declaration that Mr Lauro and the respondent never had an enforceable retainer agreement;
-a declaration that Mr Lauro was not liable to pay to the respondent the sum of the default judgment and costs order;
-an order that Mr Lauro was not liable to the respondent in relation to any fees claimed under the retainer agreement;
-an order setting aside the default judgment and the costs orders made in the Magistrates Court; and
-a stay of execution of the default judgment.
On 18 May 2018 the application was heard and judgment was reserved. On 25 June 2018, Magistrate Jackson dismissed Mr Lauro’s application and gave the following reasons:
20. The plaintiff’s current action is an abuse of process as it seeks to re-litigate the substance of the claim of the 13/2765 Action which has been disposed of by other judicial officers, and it seeks to interfere with orders made in that action. The appeal process, currently properly embarked upon Mr Lauro, is the only legitimate method to disturb the orders made by Magistrate Milazzo or Hinton J.
21. Further, the 13/2765 Action is currently before the Supreme Court, and it would be impermissible for a magistrate of this court to interfere with the appeal process by way of collateral orders. In the event that Mr Lauro’s appeal to the Full Court relating to the 13/2765 Action is successful, then there would be two actions on foot dealing the identical subject matter and effectively addressing the same relief.
22. In my view this is not a matter capable of being determining by reference to principle of res judicata and issue estoppel, as the within action is effectively raising fresh defences for Mr Lauro relative to the 13/2765 Action. It does not seek to ventilate similar issues on different causes of action, rather it is seeking to ventilate new matters in relation to the same cause of action. It is the very definition of a collateral attack on the earlier proceedings.
23. In addition to an abuse of process, the claim for orders relating to decisions made in a previous action is beyond the power afforded to me, given that the Supreme Court has determined the matter of the application to set aside the default judgment on the appeal. I am thus bound by Hinton J’s decision in Lauro v Minter Ellison Lawyers[21] in that regard.
[21] [2017] SASC 197.
It is to be noted that previously, on 15 September 2014, Magistrate Milazzo had made an order that there be “[n]o further applications to set aside judgment without leave of a Magistrate”. The respondent submitted that Mr Lauro’s application was an attempt to do exactly that. Magistrate Jackson correctly accepted that submission and stated:
26. I accept Minter Ellison’s submission that this claim is, in part, a de facto application to set aside the default judgment. As such, the claim is in its current form should not have been filed without the leave of the Court. Further, I decline to grant such leave for the reasons set out above in relation to the abuse of process. Mr Lauro has exercised his right of appeal in relation to Magistrate Milazzo’s decision and this Court is bound by the decision of the Supreme Court.
Her Honour struck out Mr Lauro’s claim and awarded costs to the firm on an indemnity basis in the amount of $1,500.
Undeterred, on 16 July 2018, Mr Lauro appealed from that decision and the costs order to a single Judge of this Court. He sought orders that the appeal be allowed; that the matter be remitted back to the Adelaide Magistrates Court before a different Magistrate; and that he be granted costs of the appeal and the proceedings before the Magistrates Court. The appeal was listed for hearing on 14 September 2018.
On 30 August 2018, Mr Lauro filed an interlocutory application (which he requested be made specially returnable before Kelly J on 31 August 2018) seeking an order that the hearing of the appeal be adjourned to a date no earlier than 22 October 2018. That application was heard by Kelly J on 31 August 2018 and the appeal was re-listed for 28 September 2018.
On 28 September 2018, the appeal was heard before Kelly J. On 10 October 2018, her Honour dismissed the appeal and stated:[22]
12. In seeking the declaration that the purported retainer agreement between the appellant and the respondent is invalid by reason of the respondent’s failures to comply with the professional and statutory obligations under the Legal Practitioners Act and Australian Consumer Law, the appellant was seeking to characterise the action before the learned Magistrate as a new and separate cause of action distinct from the issues which arose in the claim by the respondent for the unpaid legal fees in respect of which the default judgment was entered.
13. The appellant’s argument in short was that given that he had never raised the defence of statutory invalidity in the first action, he should not be prevented from bringing a claim for declaratory relief based on that defence separately. The appellant contended that in any event the earlier action had never been determined on its merits and there has been no finality in respect of that matter either, since the challenge to the default judgment remains the subject of the appeal to the Full Court.
14. Regrettably, it is the appellant who has misapprehended or mischaracterised, or perhaps both, the nature and the effect of the claim made in the action before the learned Magistrate.
15. To my mind, the Magistrate’s characterisation of the appellant’s claim in paragraphs 20 to 22 of her reasons set out in paragraph [8] herein is plainly correct.
…
22. The appellant has not identified any other error of either fact or law made by the Magistrate in the exercise of the discretion to dismiss the action.
[22] Lauro v Minter Ellison Lawyers [2018] SASC 159.
As to the appeal against the costs order, her Honour stated that Mr Lauro had “not pointed to any error of fact or law which would justify this Court’s intervention in the order made by her Honour”[23] and that “[t]he lump sum awarded fixed at $1,500 was in all of the circumstances fair and reasonable”.[24] Her Honour ordered that Mr Lauro pay the respondent’s costs of the appeal fixed at $500.
[23] Lauro v Minter Ellison Lawyers [2018] SASC 159, [24].
[24] Lauro v Minter Ellison Lawyers [2018] SASC 159, [26].
On 24 October 2018, Mr Lauro filed an interlocutory application seeking permission to appeal to the Full Court against the Orders made by Kelly J on 10 October 2018 and elected for SCR 289(1)(b) rather than SCR 289(1)(a). Mr Lauro also requested that the application be listed for hearing no earlier than the week commencing Monday, 26 November 2018. Accordingly, the matter was referred to Kelly J for her decision as to whether her Honour would grant permission to appeal pursuant to SCR 289(1)(b).
On 5 December 2018, Kelly J formally refused permission to appeal. (I note that Mr Lauro states in the third row of his table that he continued to be involved in this tranche of litigation until “29 January 2019”, but what further steps he was attempting to take between 5 December 2018 and “29 January 2019”, I know not).
In my view, the present position concerning Mr Lauro’s affidavit affirmed on 8 April 2019 is most unsatisfactory. In his affidavit, particularly at paragraphs [18] to [19] (reproduced above), Mr Lauro seeks to excuse his inactivity in setting down the Full Court appeal for hearing by making various assertions. Apart from the Delphic reference in the third row of the table, there is no mention of the considerable period over which he was in fact occupying his time (and unfortunately also that of the respondent, and of the Magistrates Court, and later of Kelly J in the Supreme Court) in a frivolous abuse of the process of the Magistrate Court wherein further proceedings were brought by him which were directed to the same subject matter of the Full Court appeal herein.[25]
[25] And nor did Mr Lauro refer to these matters in his written or oral submissions.
General delay by Mr Lauro
Finally, I add that from the beginning of his appeal to Hinton J and through to the Full Court proceedings, Mr Lauro has continually sought to delay the resolution of the appeal proceedings herein in various ways. Examples include:
-Interlocutory Application filed on 30 October 2014 (FDN 3) which sought, inter alia, “That the present Appeal not be set down until January 2015”. (Dismissed on 14 November 2014).[26]
-Interlocutory Application filed on 19 May 2015 (FDN 7) which sought, inter alia, that the appeal proceedings be stayed. (Dismissed by Hinton J on 29 May 2018).[27]
-Interlocutory Application filed on 11 November 2015 (FDN 11) which sought, inter alia, that the appeal proceedings be stayed or, in the alternative, that the appeal be adjourned to a date no earlier than 27 January 2016 (Dismissed on 11 August 2016).[28]
-Interlocutory Application filed on 19 February 2016 (FDN 14) which sought, inter alia, that the appeal proceedings be stayed or, in the alternative, be adjourned for a period of not less than two months (Dismissed on 11 August 2016).[29]
-Interlocutory Application filed on 10 August 2016 (FDN 17) which sought, inter alia, an adjournment of the hearing set for the previous interlocutory applications to either 15 or 16 September 2016 or a later date, or 12 August 2016. (Dismissed on 11 August 2016).[30]
[26] Lauro v Minter Ellison Lawyers [2018] SASC 70, [53].
[27] Lauro v Minter Ellison Lawyers [2018] SASC 70, [86].
[28] Lauro v Minter Ellison Lawyers [2018] SASC 70, [68].
[29] Lauro v Minter Ellison Lawyers [2018] SASC 70, [68].
[30] Lauro v Minter Ellison Lawyers [2018] SASC 70, [68].
That pattern has continued following Mr Lauro’s commencement of his appeal to the Full Court. Examples include:
-Interlocutory Application filed on 31 January 2018 (FDN 22) which sought, inter alia, that the appellant be given a further four weeks to provide written submissions (in relation to costs of the appeal to the single Judge);
-Interlocutory Application filed on 16 February 2018 (FDN 24) which sought, inter alia, that the time to set down the Full Court appeal be extended by six months. (Dismissed by Hinton J on 29 May 2018);[31]
-The present Interlocutory Application filed on 8 April 2019 (FDN 41) which seeks, inter alia, that the time to set down the Full Court appeal be extended by six months.
[31] Lauro v Minter Ellison Lawyers [2018] SASC 70, [114].
Conclusion as to reinstatement of the appeal
I accept that the Full Court appeal was filed in time and that there is a distinction in Mr Lauro’s favour as between the approach to a statutory time limit within which to commence an appeal (on the one hand) and procedural rules of Court dealing with the progress of the hearing of the appeal after an appeal has been validly commenced (on the other hand).[32]
[32] Jackamarra v Krakouer (1998) 195 CLR 516, 519-521; 526-527; 539-543.
However, as is demonstrated in the recent decision of the Full Court in Kowalski v Sim & Ors,[33] even in a case of the latter type, there are relevant wider factors other than just the interests of the parties. In the present case, the case for reinstatement of the appeal put forward by the applicant is so unsatisfactory, and the prejudice to the respondent consequent upon a reinstatement would be so high, that I consider that the matters militating in favour of the applicant are significantly outweighed by the factors militating against reinstatement of the appeal.[34] I exercise my discretion under SCR 296(2) against Mr Lauro and in favour of the respondent. I refuse to reinstate the appeal to the Full Court.
[33] [2019] SASCFC 96, [96]-[103].
[34] I note that a view has been expressed that there is no specific requirement to establish “special reasons” for reinstatement under SCR 296(2). (See Raedel & Raedel v Shahin [2018] SASC 95, [44]-[57]). It is unnecessary to explore that matter since I consider that in the present circumstances the correct exercise of a general discretion (ie not requiring special reasons to be established by the applicant) is that an application for reinstatement should be refused.
The application for a stay of execution
While it is possible that Mr Lauro may seek to challenge this present judgment in yet a further attempt to reinstate the appeal to the Full Court, the existence of that possibility is no more than a factor that may militate in favour of a stay being granted. There are a number of factors to be considered here, including the following matters.
First, the appeal to the Full Court has been dismissed by the operation of SCR 296(2) and I have refused the application to reinstate it under SCR 296(2). In my view, the prospects of Mr Lauro succeeding in both an appeal against this judgment, and then eventually also succeeding in a reinstated Full Court appeal, are low.
Secondly, as to whether “there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position if the judgment against him is executed”,[35] Mr Lauro has not tendered evidence that the firm could not, or would not, repay the judgment sum should he eventually succeed on a reinstated appeal. In fact, I accept the respondent’s assurance given at the hearing before me on 21 June 2019 that it could and would repay the judgment sum if it were to be unsuccessful on appeal.
[35] Commissioner of Taxation (Cth) v Myer Emporium Ltd (No 1) (1986) 160 CLR 220, 223 (Dawson J). See also Playford Vineyard Pty Ltd (ACN 604 608 157) v Wishford Nominees Pty Ltd (ACN 008 077 236) (No 2) [2018] SASC 152, [24] (Stanley J).
Thirdly, while the potential prejudice to the person seeking the stay of execution is relevant, there is no evidence before me that the payment by Mr Lauro to the respondent of the judgment sum would be an impossibility or that the payment of that sum would lead to Mr Lauro committing an act of bankruptcy.[36]
[36] Cf Rickard v Testel Australia Pty Ltd [2017] SASC 144, [45]-[59], where Doyle J accepted that there was a prospect of prejudice to the defendants in the form of bankruptcy and liquidation if the stay were not granted. There is no evidence to suggest that a similar scenario would befall Mr Lauro if the respondent were to enforce the judgment against him.
Fourthly, while the balance of convenience will generally favour the grant of a stay if an appeal would be rendered nugatory in the absence of a stay,[37] here Mr Lauro has not demonstrated that he would be unable to pursue the appeal if the respondent were to enforce the judgment against him and had the appeal not been dismissed by dint of SCR 296(2).
[37] Playford Vineyard Pty Ltd (ACN 604 608 157) v Wishford Nominees Pty Ltd (ACN 008 077 236) (No 2) [2018] SASC 152, [24] (Stanley J); Alexander v Cambridge Credit Corporation Ltd (Receivers Apptd) (1985) 2 NSWLR 685, 695 (Kirby P, Hope and McHugh JJA); Kalifair Pty Ltd v Digi-Tech (Australia) Ltd (2002) 55 NSWLR 737, 741 [17] (Handley, Sheller and Ipp JJA).
In all of the circumstances, I refuse to grant a stay.
(a)made with the consent of the parties;
(b)given at the conclusion of a contested hearing;
(c)made in the terms of the acceptance of either an offer to consent to judgment or a payment of a sum of money to the Registrar; or
(d)a summary judgment.
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