Lyberopoulos v SGIC & Pertl & Svilans No. Scgrg-98-932 Judgment No. S6906

[1998] SASC 6906

JEAN PAUL LYBEROPOULOS v STATE GOVERNMENT INSURANCE COMMISSION AND PERTL AND SVILANS

[1998] SASC 6906

Magistrates Appeal

PERRY J

1. By notice of appeal to this court filed on 16 July 1998 Mr Lyberopoulos appeals against orders made by a magistrate, Mr Millard SM, sitting in the civil jurisdiction of the Magistrates Court pursuant to which the magistrate refused an application for review of taxation of costs awarded against Mr Lyberopoulos in an unsuccessful civil action brought by him which was transferred to that court for trial. 

2. At the same time the learned magistrate refused an application to adjourn an application by Mr Lyberopoulos which sought orders pursuant to s37(2) of the Magistrates Court Act 1991 directed against two former solicitors, Mr Pertl and Mr Svilans.

3. The applications pursuant to s37(2) were brought in consequence of alleged failings on the part of Mr Pertl and Mr Svilans in their handling of Mr Lyberopoulos' claim and the proceedings brought to pursue it, which in turn resulted in the adverse order for costs against him to which I have just referred.

4. For reasons which the learned magistrate dictated onto the transcript of a hearing which occurred before him on 11 June 1998, the application by Mr Lyberopoulos pursuant to s37(2) was struck out. I think the preferable order should have been that it was dismissed, but the effect of the order was the same.

5. At the same time he gave leave to appeal to the Supreme Court against his order, and further ordered a stay of execution on the allocutur relating to the taxed bill of costs until after the close of business on 8 July 1998.  The bill had been taxed for a sum in excess of $36 000.

6. On the hearing before me Mr Lyberopoulos appeared to prosecute the appeal in person.  Mr Crocker appeared for SGIC which was the successful party which obtained the taxation of the costs to which I have referred.  Mr Svilans and Mr Pertl appeared in person, Mr Pertl under protest. 

7. Some evidence was called on the hearing before Mr Millard SM on 11 June.  The transcript of those proceedings is before me.  Mr Lyberopoulos appeared in person on that occasion.  Mr Svilans gave evidence and was examined by Mr Pertl and cross-examined by Mr Lyberopoulos.  Mr Lyberopoulos did not attempt to call further evidence although he sought an adjournment.

8. In refusing the application for an adjournment, which was opposed, the learned magistrate noted that the application under s37(2) was issued on 20 March 1998, and that it was the third occasion upon which it was before the court. It was listed before Mr Myers SM on 27 March 1998 and adjourned so as to come on for hearing before another magistrate, Mr Cannon on 30 April 1998. The latter adjourned the matter for almost six weeks to enable Mr Lyberopoulos to prepare his argument.

9. In the course of the hearing before me today Mr Lyberopoulos has urged strongly upon me the argument that the adjournment of 11 June was to enable the outcome of separate proceedings in the District Court to be known. But he has not satisfied me in the first place, that the outcome of those proceedings could have had any effect whatsoever on the application brought by him in the within proceedings under s37(2), and furthermore, and he has not satisfied me that the learned magistrate was wrong in describing the reason for the adjournment as to enable Mr Lyberopoulos to prepare his argument.

10. Mr Lyberopoulos has also put a strong argument to me that he was prejudiced in presenting the matter on 11 June due to an inability to have access to the court file. But an application under s37(2) is not to be pursued on the basis of simply going through a court file to see whether it might happen to disclose evidence that might lend some support to the application. Furthermore, it is clear from the manner in which Mr Lyberopoulos has presented his argument before me today, that far from asserting delay in the proceedings through neglect or incompetence on the part of Mr Svilans and Mr Pertl, Mr Lyberopoulos' main complaint is that Mr Pertl was grossly negligent, so he alleges, in commencing proceedings in the first place, when he ought to have known that they were hopeless.

11. It seems very likely that he advanced a similar argument before Mr Millard SM, as the latter was prompted to say in the course of the reasons given by him for dismissing the application under s37(2), that he was not dealing with the question whether there has been general negligence or incompetence on the part of the practitioners who were handling the matter, but that he was dealing with the question as to whether there was any basis for the application under s37(2).

12. In my opinion it is clear on the material which was presented in support of Mr Lyberopoulos' claim under that section, that there is no insufficient evidence upon which the learned magistrate could possibly have allowed the claim.  In my opinion his action in dismissing the claim was correct. 

13. As to the other aspect of the matter, that is the challenge to the taxation of costs, there was a difficulty occasioned by Mr Lyberopoulos' temporary absence in Greece.  Apparently this contributed to his failure to receive notification of the taxation.  But throughout the relevant period, including the time when the taxation took place, his former solicitors, Frank Webster & Associates were on the court file as solicitors on the record for Mr Lyberopoulos.  He had not filed any notice indicating that they were no longer acting, and that he was acting for himself. 

14. In fact I am satisfied on the evidence before me that notice of the taxation together with a copy of the bill of costs, was sent to his solicitors on the record, Frank Webster and Associates, well ahead of the taxation.  Then, on 9 August 1993, having been informed by Frank Webster and Associates that they had no instructions in the matter and that their instructions had been terminated some time beforehand, the bill of costs was sent on by Ward and Partners to Mr Lyberopoulos at a post office address at Magill.  It was not returned in the course of the post until 5 October 1993, apparently unclaimed, which was after the taxation which had taken place on 20 August 1993. 

15. While those circumstances are unfortunate in the sense that Mr Lyberopoulos understandably believes that he did not have an opportunity to be heard on the taxation, many of the items in the bill being items which he would wish to challenge, it seems to me that Mr Millard SM was right in indicating that he had no jurisdiction to deal with that matter.  I am satisfied that under the relevant provisions of the Magistrates Court Act and rules the outcome of the taxation having been performed by a magistrate, could not be challenged by bringing in an application for review before another magistrate.

16. It seems likely, and perhaps somewhat strange, that the only avenue of review might have been an appeal against the taxation to this court.  Be that as it may, it is clear that Mr Millard SM did not have jurisdiction to entertain the application for review of the taxation.  It was correctly refused by him.

17. Even if he had jurisdiction, there would have been a difficulty in attempting to review a taxation some five years afterwards, or almost five years, and in circumstances when Mr Lyberopoulos was not offering clear evidence of any wrongful allowance of any particular item. 

18. I have listened carefully to his arguments before me today.  I have perused his affidavits and his outline of address.  I have given him ample opportunity by oral argument to advance his appeals.  But I have not been able to be satisfied that there is any merit in his attack upon the outcome of the taxation of costs despite the surprisingly high amount at which the bill was allowed given the fact that it was a small claim.  For the reasons which I have explained that is beside the point.

19. The decision to be made today is whether or not Mr Millard SM was correct in dismissing the application for review of the taxation of costs.  Clearly he had no jurisdiction to entertain it and it was correctly dismissed.

20. This means then that there was no reason to identify error in the orders made on 11 June the subject of the appeal before me. 

21. The appeal is dismissed.

Is there any application for costs?

MR CROCKER:                  I apply for costs. 

HIS HONOUR:  Can you resist costs Mr Lyberopoulos, do you oppose an order against you that you pay the costs of the hearing, of this appeal?

MR LYBEROPOULOS:     I oppose the order. 

HIS HONOUR:  Do you have any grounds for opposing it?

MR LYBEROPOULOS:          The grounds are that these people bring me here, these people are messing around in all these years and the appeal should have succeeded. 

HIS HONOUR:  I order the appellant to pay the costs of the respondent State Government Insurance Commission of and incidental to the appeal to be taxed.