Russell v Polites Investments Pty Ltd - [2020] SASCFC 11

Supreme Court of South Australia
(Full Court)
RUSSELL v POLITES INVESTMENTS PTY LTD
[2020] SASCFC 11
Judgment of The Full Court
(The Honourable Justice Nicholson, The Honourable Justice Parker and The Honourable Auxiliary Justice David)
26 February 2020
APPEAL AND NEW TRIAL - PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - FROM SUPREME COURT - BY LEAVE OF COURT - INTERLOCUTORY ORDERS AND JUDGMENTS
Applications for permission to appeal relating to two separate actions.
The appellant appeals against orders made by Peek J on 12 November 2015, Stanley J on 17 August 2016 and Doyle J on 25 August 2017, in Supreme Court Actions 1293 of 2010 and 934 of 2015, respectively.
The orders made by Peek, Stanley and Doyle JJ concern the appellant’s appeals against the dismissal of his claim for personal injury by Judge Millsteed in District Court Action 925 of 2003 and dismissal of his claim for a breach of lease by Judge Herriman in District Court Action 256 of 2007. The orders, inter alia, refused an extension of time under r 296(2) of the Supreme Court Civil Rules 2006 (SA) to set down the appeals for hearing and also dismissed the appeals under r 294(1)(h) on the basis that they had no prospect of success. Those decisions were interlocutory and permission to appeal is required.
Held, per Parker J (Nicholson J and David AJ agreeing), refusing permission to appeal in both actions:
1. The appellant cannot rely upon the statutory stay under s 60 of the Bankruptcy Act 1966 (Cth) to justify his failure to lodge the appeals, or to set the appeals down for hearing within the required time limits. The effect of s 60(4) is that the appellant was entitled to continue the personal injury claim after his bankruptcy without any requirement for his trustee to make an election. Thus, his bankruptcy cannot explain the delay.
2. The appellant’s complaints that two witnesses had lied to explain their unavailability on the first day of trial of the personal injury claim and a third witness was unavailable throughout the trial are completely devoid of merit.
3. The appellant’s complaint that a booklet containing copies of medical evidence was mislaid for a period prior to trial in the personal injury claim had absolutely no bearing on the outcome of the proceedings. There is no merit in that contention.
4. The appellant’s contention that the certificate of title and street number for the premises that he had leased on Hindley Street was incorrectly recorded on his lease is without merit. Neither the certificate of title nor the street number was relevant to the personal injury claim. Even if the complaints by the appellant are correct, that could have no possible bearing on the correctness of the decision made by Judge Millsteed.
5. The appellant’s complaint that Master Blumberg did not have jurisdiction to review the decisions made by Master Bampton in the tenancy claim is incorrect. The Master had jurisdiction to consider whether subsisting interlocutory orders made by another Master remained relevant and appropriate.
6. The appellant’s sweeping allegations about the manner in which Judge Millsteed conducted the trial of the personal injury claim have no basis in law or fact.
7. The appellant’s sweeping allegations of perjury and fraud against counsel and witnesses have no basis in fact.
8. Permission to appeal is refused. The appellant has failed to identify any error on the part of Peek J, Stanley J or Doyle J. The appellant has not advanced any valid or acceptable reason for failing to set down his multiple appeals within the required six months. His appeals have no prospect of success.
Bankruptcy Act 1966 (Cth) s 60; Supreme Court Civil Rules 2006 (SA) rr 296(2), 294(1)(h), referred to.
Russell v Polites (Unreported, District Court of South Australia, Master Bampton, 24 October 2008; Russell v Polites Investments Pty Ltd (No 2) [2015] SADC 128; Russell v Polites Investments Pty Ltd (Unreported, Supreme Court of South Australia, Doyle J 25 August 2017); Russell v Polites Investments Pty Ltd [2011] SADC 30; Russell v Polites Investments Pty Ltd [2015] SASC 181; Russell v Polites Investments Pty Ltd [2016] SASC 129; Russell v Polites Princes Group of Companies [2009] SADC 73; Russell v Polites Investments Pty Ltd (Unreported, District Court of South Australia, Master Blumberg, 31 May 2010), discussed.

RUSSELL v POLITES INVESTMENTS PTY LTD
[2020] SASCFC 11
Full Court: Nicholson and Parker JJ and David AJ

NICHOLSON J: I agree with the orders proposed by Parker J and with his reasons.
PARKER J: This judgment relates to appeals relating to two separate actions. Each appeal involves the same parties and, while the subject matter is different, there are close factual connections. Because Mr Russell has a history of lodging appeals in relation to both actions concurrently, and also because on several occasions judges of this Court have delivered one judgement covering both actions, I have elected to follow that approach in the interests of clarity.
Mr Russell appeals, or seeks permission to appeal, against the orders made by Peek J on 12 November 2015, Stanley J on 17 August 2016 and Doyle J on 25 August 2017 in Supreme Court Actions 1293 of 2010 and 934 of 2015. The various orders made by their Honours relate to appeals lodged by Mr Russell concerning District Court Actions 925 of 2003 and 256 of 2007, respectively.
The history of the two separate actions commenced by Mr Russell against Polites Investments Pty Ltd in the District Court is set out in detail in the successive judgments of Peek J dated 12 November 2015,[1] Stanley J dated 17 August 2016[2] and the ex tempore reasons of Doyle J delivered on 25 August 2017.[3]
[1]    Russell v Polites Investments Pty Ltd [2015] SASC 181.
[2]    Russell v Polites Investments Pty Ltd [2016] SASC 129.
[3]    Russell v Polites Investments Pty Ltd (Unreported, Supreme Court of South Australia, Doyle J 25 August 2017).
The appeals lodged by Mr Russell were initially listed before me as a single judge. That apparently occurred because of uncertainty as to what Mr Russell was seeking. For the reasons that appear below, after hearing submissions from Mr Russell, it became clear that he was seeking to appeal against the orders made by single judges of this Court. Thus, it was necessary to refer the appeals to the Full Court.
The appeal in Action 1293 of 2010 was listed for oral submissions before the Full Court. That appeal challenged the orders made by Peek, Stanley and Doyle JJ in respect of appeals that Mr Russell had lodged against the dismissal of his claim for personal injury by Judge Millsteed in District Court Action 925 of 2003. In essence, the orders made by Peek, Stanley and Doyle JJ refused an extension of time under r 296(2) of the Supreme Court Civil Rules 2006 (SA) (“the Rules’) to set down appeals for hearing and also dismissed Mr Russell’s appeals under r 294(1)(h) on the basis that they had no prospect of success. Those decisions were interlocutory and permission to appeal is required. Thus, in accordance with r 290, Mr Russell’s appeals could have been decided on the papers. However, it was considered appropriate to list the matter for hearing so that Mr Russell was given the opportunity to present oral submissions as to why he contended that Judge Millsteed had erred in dismissing his claim for personal injury.
The orders made by Masters Bampton and Blumberg and by Judge Herriman were clearly interlocutory. Thus, the decisions made in relation to appeals from those orders in Action 934 of 2015 by Peek, Stanley and Doyle JJ were also interlocutory and permission to appeal is required. In accordance with r 290, whether permission to appeal should be granted has been considered on the papers.
Background
The personal injury claim
The first of the District Court proceedings was Action 925 of 2003. Mr Russell sought damages for personal injury based upon a claim in negligence against Polites Investments Pty Ltd, his former landlord of retail premises in Hindley Street. I will refer to that action as the personal injury claim. The basis for the claim was that Mr Russell had allegedly suffered injury caused by falling down the stairs. At the conclusion of Mr Russell’s case, Judge Millsteed ruled on 8 July 2009 that there was no case to answer. His Honour published detailed reasons for his decision comprising 28 pages.[4]
[4] Russell v Polites Princes Group of Companies [2009] SADC 73.
Judge Millsteed found that there was no basis upon which the first defendant, the Polites Group, or the third defendant, Mr George Polites, a director of Polites Investments and the Chief Executive of the Polites Group, could be legally liable for any injury suffered by Mr Russell. It had not been established that the Polites Group was a body corporate capable of being sued. It had also not been established that Mr Polites[5] was personally liable for tortious conduct by Polites Investments. Judge Millsteed reached the latter conclusion after applying the three recognised tests for determining whether a director was liable for the tortious acts of a company. Judge Millsteed found that it could not be said that Mr Polites had a case to answer under any of those three tests. There was simply no evidence upon which liability could be established.
[5] My references to “Mr Polites” refer to Mr George Polites. His father, Mr Con Polites, who had passed away some years before the trial, was mentioned in evidence.
Judge Millsteed also found, notwithstanding the subjective belief of Mr Russell and also the belief of a former tenant whose rights under the lease had been assigned to Mr Russell, that the lease only permitted Mr Russell to occupy the ground floor of the premises. Judge Millsteed rejected the contention by Mr Russell that the defendant had deliberately deceived him into thinking that the lease extended to the upper floor. His Honour expressly stated that he had reached that conclusion after carefully watching the witnesses and closely examining their evidence. While a plan attached to the memorandum of lease and a plan attached to the deed of assignment conveyed contradictory information as to whether the lease extended to the upper floor, Judge Millsteed found that Mr Russell had been expressly informed by an employee of the defendant that the lease was confined to the ground floor.
Judge Millsteed found that the stairs were worn and somewhat slippery and their condition probably contributed to the falls experienced by the previous tenant. At the time of his first two falls, Mr Russell was knowingly and deliberately breaching his contractual arrangements with the defendant by using the upper floor of the premises for storage and residential purposes. While he had a licence to use the stairs at the time of the third fall for the purposes of complying with the notice of eviction and his obligation to remove all property from the premises, when using the stairs he was fully aware of their deficiencies, he had been warned previously and had fallen down the stairs on two previous occasions.[6]
[6] Those earlier falls were not the subject of the claim for compensation.
Judge Millsteed found that there were no reasonable and practical measures that the defendant could have taken to eliminate or reduce or warn against the alleged danger. At the time of the third fall, it was necessary to remove Mr Russell’s unwanted belongings and there was no point in warning him again about the dangers as he was already aware of them. It would have been unreasonable and impracticable to expect the defendants to modify or remove the stairs for the purpose of facilitating the notice of eviction and the obligation for Mr Russell to remove his property. For these reasons, and having regard to the relevant provisions of the Wrongs Act 1936 (SA) (now the Civil Liability Act 1936 (SA)), Judge Millsteed was not satisfied that at the time of the third fall the defendant had breached its duty of care to Mr Russell.
Judge Millsteed also found that there was nothing in the evidence of Mr Russell concerning the circumstances of the third fall that could justify a finding that the condition of the stairs had either wholly or partly contributed to the accident. Mr Russell had failed to establish that the alleged fall was the result of anything other than inattention on his part and/or a mistake in the way he placed his feet as he descended the stairs. Thus, Mr Russell had failed to prove a causative connection between the alleged fall and the condition of the premises.
Judge Millsteed also found that an exclusion clause in the lease operated to release the defendant from liability and negligence for any type of accident “in or near” the demised premises. Because the stairs were either “in or near” the demised premises, the exclusion clause operated to exclude the defendant from liability in respect of Mr Russell’s alleged injury.
In summary, Judge Millsteed found that the defendant had no case to answer for three reasons:
·First, it owed Mr Russell a duty of care but had not breached that duty;
·Secondly, Mr Russell had failed to establish that his alleged third fall was caused by the condition of the stairs; and
·Thirdly, by reason of the exclusion clause, the defendants could not be held liable in any event.
On 21 September 2010, Mr Russell filed a notice of appeal to the Full Court against the judgment of Judge Millsteed in the personal injury claim. That appeal was the commencement of Supreme Court Action 1293 of 2010.
The tenancy claim
On 29 August 2000, Mr Russell instituted proceedings in the Magistrates Court for relief against forfeiture so as to prevent the carrying into effect of the notice of eviction from the Hindley Street premises served upon him by Polites Investments.[7] On or about 30 August 2000, a Magistrate directed Mr Russell to comply with the notice of eviction.[8] As previously noted, the injury allegedly suffered by Mr Russell is said to have occurred when he fell down the stairs while moving his property out of the premises so as to comply with the eviction order.
[7] This was not a residential tenancy but a retail or commercial lease. Hence, the Magistrates Court had jurisdiction rather than the former Residential Tenancies Tribunal.
[8] Russell v Polites Princes Group of Companies [2009] SADC 73 at [64]-[65] (Judge Millsteed).
In District Court Action 256 of 2007, filed on 19 February 2007, Mr Russell sought damages in the amount of $1,255,755 arising from the tenancy dispute with Polites Investments. I will refer to that action as the tenancy claim.
The causes of action relied upon by Mr Russell in the tenancy claim were breach of lease, fraud, breaches of the Trade Practices Act, the “Real Estate and Property Act [sic]”, the Retail and Commercial Leases Act and the Development Act, breach of contract and “Wrongful Eviction and other Wrongs”. The damages sought comprised return of rents and amounts paid to the defendant during the tenancy and consequential damages in the sum of $1,255,755.
In an amended statement of claim filed on 12 October 2007, Mr Russell sought repayment of rents paid to the landlord, the sum of $700,000 by way of loss of profit, renovation costs and “unspecified other costs”. In his amended statement of claim Mr Russell pleaded:
… that the landlord/occupier did wrongfully knowingly evict the plaintiff to conceal the defendants who knowingly had wrongfully leased the said property to not relinquish the landlord’s/occupiers title and furthermore the plaintiff states the said breach of contract to be illegal to the point of a conspiracy to wrongfully charge rent to the disadvantaged plaintiff with complete and total disregards to the State statures [sic] … .
The State statutes to which Mr Russell referred were the “Fair Tradings Act 1987] and [Consolidated Act]] [Retail and Commercial Leases Act] [Development Act] [Real Estate Trading Act] and [the Laws of the State].”[9] He also referred to the law of negligence, company law, criminal law, local government and contract and property law.
[9] Square brackets in original.
On 25 February 2008, the defendants applied to have the amended statement of claim struck out on the grounds that it did not comply with the Rules, did not disclose a reasonable cause of action, purported to raise matters which had been judicially determined by Judge Millsteed, was vexatious and embarrassing and constituted an abuse of process. The defendants also sought an order for security for costs.
On 24 October 2008, Master Bampton (as her Honour then was) ordered that the amended statement of claim be struck out and dismissed the action against the first and third defendants, i.e. the Polites Group and Mr George Polites. While recognising that Mr Russell did not have the benefit of legal assistance, Master Bampton found that the pleading was in many instances irrelevant and incomprehensible, did not comply with the Rules and was an abuse of process. She gave Mr Russell a final opportunity to re-plead his claim against the second defendant only. Master Bampton specifically ordered that Mr Russell must not re‑plead matters pertaining to the personal injury claim that was then on foot before Judge Millsteed.[10]
[10] Russell v Polites (Unreported, District Court of South Australia, Master Bampton, 24 October 2008).
On 20 November 2008, Mr Russell filed a further amended statement of claim in which he alleged that the defendant had caused him loss and damage by providing him with an incorrect disclosure statement, fraudulently concealing from him the correct certificate of title reference and fraudulently increasing his rent. He asserted that these matters had only come to his attention during the trial before Judge Millsteed.
On 9 July 2009 (being the day after Judge Millsteed delivered judgment in the personal injury claim), Master Bampton heard further argument upon the defendant’s application for security for costs. In the course of dealing with that application, Master Bampton expressed concern that the further amended statement of claim still suffered from the deficiencies she had previously identified. Furthermore, Mr Russell was still seeking to agitate matters that had been the subject of the proceedings before Judge Millsteed. She was not satisfied that Mr Russell had pleaded an arguable case in the further amended statement of claim. She ordered that Mr Russell provide security for costs in the sum of $15,000 and that in default of such payment the action be stayed.
Mr Russell did not pay into Court any sum by way of security. Subsequently, the defendant applied to have Mr Russell’s action dismissed for want of prosecution. Mr Russell then filed an application seeking leave to proceed without complying with the security order.
The applications made by the defendant and by Mr Russell were heard by Master Blumberg on 31 May 2010.[11] Master Blumberg held that Mr Russell had not, would not and could not provide security for costs. He refused to vary the order made by Master Bampton and ordered that Mr Russell’s claim be dismissed for want of prosecution. He also awarded costs to the defendants. The defendants subsequently lodged an allocatur with respect to their costs.
[11] Russell v Polites (Unreported, District Court of South Australia, Master Blumberg, 31 May 2010).
On 18 October 2010, Mr Russell belatedly appealed against the orders made by Master Bampton and Master Blumberg in the tenancy claim. Those appeals came before Judge Herriman. His Honour also dealt with an interlocutory application filed by Mr Russell on 20 October 2010 seeking to set aside the allocatur filed by the defendant in relation to the costs order made by Master Blumberg on 31 May 2010.[12]
[12] Russell v Polites Investments Pty Ltd [2011] SADC 30.

The grounds of appeal advanced by Mr Russell against the order of Master Bampton were that the orders were “a dangerous precident [sic] to disallow a Trial of the Action due to Finacial [sic] predicament of the Victim”. Identical grounds were advanced in the appeal against the order of Master Blumberg.
Mr Russell asserted that he was not aware that Master Bampton had stayed the proceedings. Judge Herriman rejected that contention as the transcript of the hearing conducted by Master Bampton disclosed that Mr Russell had been made well aware of the orders and had engaged in discussion with the Court about them. He was also specifically informed by the Master that he had 21 days to appeal the order and he had acknowledged that advice. Judge Herriman also rejected an assertion by Mr Russell that a work accident had delayed lodgement of the appeal. There was no evidence or argument as to how the accident explained his delay.
Judge Herriman also rejected the contention by Mr Russell that he had awaited the judgment of Master Blumberg before deciding to appeal against the decision of Master Bampton. In fact, the application that had led to the hearing before Master Blumberg was not filed until six months after the decision of Master Bampton. His Honour also rejected the assertion by Mr Russell that he had awaited the result of an action that he had commenced in the Magistrates Court in relation to his tenancy. That action had not been commenced until June 2010, some 11 months after the decision of Master Bampton in July 2009. For these several reasons, Judge Herriman found that Mr Russell had advanced no cogent explanation for the delay between July 2009 and October 2010 in instituting an appeal against the order of Master Bampton. For that reason, and as there was no merit in the appeal, Judge Herriman found that refusal of an extension of time would not result in a miscarriage of justice. His Honour also found that the grant of an extension would prejudice the defendant, particularly in the face of the persistent allegations of fraud made by Mr Russell.
In relation to the merits of the proposed appeal, Judge Herriman rejected the contention of impecuniosity. This was not said to have resulted from the actions of the defendant and was plainly considered by Master Bampton in conjunction with her assessment of the merits of the action. There was nothing to suggest that the Master had incorrectly applied principles, erred in fact finding, failed to properly consider and weigh all relevant matters or that there was any other reason why her findings should be disturbed. Master Bampton had properly found that the appellant had not satisfied the Court that he had an arguable claim.
Judge Herriman also observed that Mr Russell had sought to challenge the validity of the lease with the defendant and to assert that he had been misled as to its content and that the document had been falsely altered by the defendant after it was executed. These allegations had been the subject of evidence before Judge Millsteed in the personal injury claim and were rejected. To the extent that they had any relevance to the appeal, they had been finally determined against Mr Russell and he was estopped from raising them again.
Having regard to the continued failure of Mr Russell to articulate a maintainable cause of action, his refusal to accept the binding effect of the findings by Judge Millsteed and the scandalous accusations made in an affidavit dated 8 December 2010 of bias and corruption, Judge Herriman found himself satisfied that the pursuit by Mr Russell of this appeal was frivolous, vexatious and an abuse of the court processes.
Judge Herriman rejected the application by Mr Russell for an extension of time to appeal the orders made by Master Blumberg for much the same reasons as his Honour’s finding in relation to the appeal against the orders of Master Bampton. Judge Herriman found that Master Blumberg had not erred in any respect. The appeal against the decision of Master Blumberg was frivolous, vexatious and an abuse of the court processes. Judge Herriman then made a series of observations about the conduct of Mr Russell which I have reproduced at [82] below.
The reasons and orders of Judge Stretton dated 16 September 2015
On 16 September 2015, Judge Stretton published his reasons in Russell v Polites Investments Pty Ltd (No 2).[13]Judge Stretton noted that in 2010, Polites Investments had instituted bankruptcy proceedings in the Federal Court against Mr Russell arising from his failure to meet the orders for costs made by the District Court totalling $41,997.55 in the personal injury claim and a further $1,500 by way of costs in relation to what his Honour described as a “summary matter”. Mr Russell was declared bankrupt on 20 December 2010. He was discharged from bankruptcy on 13 July 2015.[14]
[13] [2015] SADC 128.
[14] See Russell v Polites Investments Pty Ltd [2015] SASC 181 at [27] (Peek J).
Judge Stretton noted that on 4 March 2015, Polites Investments had filed a short form claim for costs against Mr Russell in the sum of $13,898.71. The principle component was the fee of $11,000 charged by senior counsel in relation to the appeal heard by Judge Herriman in the tenancy matter. The transcript showed that the hearing had taken 42 minutes.
Judge Stretton expressed concern that Polites Investments was now seeking to bankrupt Mr Russell, based on the costs order for $13,898.71 it had obtained in 2011 relating to the appeal heard by Judge Herriman in the tenancy matter together with other costs awarded by the Federal Court in 2012 arising from Mr Russell’s bankruptcy appeal.
Judge Stretton also voiced concern that the short form bill of costs had been sent to Mr Russell’s last known mailing address. After he failed to respond, Polites Investments had obtained a District Court allocatur for the full amount claimed by way of costs. While Judge Stretton had not heard argument, he suggested that it was far from clear that such an amount would have been allowed on a taxation and nor was it clear that the matter had been fit for senior counsel. Although the Full Court has limited information and has not heard any submissions, his Honour’s observations appear to have some merit.
Judge Stretton expressed disquiet that Mr Russell had been prevented from having the tenancy matter substantively adjudicated or considered on appeal. That had resulted from the security for costs order, the dismissal of his claim for want of prosecution over his objection followed by the bankruptcy proceedings and followed by the further costs orders and foreshadowed further bankruptcy proceedings. Judge Stretton held that the justice of the case required that Mr Russell be allowed to pursue his substantive appeal in this Court and for that reason enforcement of the costs awarded by Judge Herriman should be stayed pending the outcome of the appeal.
Judge Stretton also expressed the provisional view that it would not be appropriate for the District Court to stay the enforcement of the costs order made by the Federal Court. Not only would it not have been appropriate for the District Court to purport to stay an order made by the Federal Court, it is plainly the case that the District Court has no such power. The stay of a Federal Court order is a matter solely for that Court or the High Court.
Judge Stretton made an interim order staying the enforcement of the costs order made by Judge Herriman in the tenancy matter pending the hearing of Mr Russell’s appeal to the Supreme Court. His Honour set aside the District Court costs allocatur of $13,898.71 and also reserved his decision as to the costs of that appeal. The Court has been informed that the orders made by Judge Stretton remain in operation.
The decision of Peek J in Action 1293 of 2010 delivered on 12 November 2015
On 21 September 2010, Mr Russell lodged an appeal against the orders of Judge Millsteed dismissing the personal injury claim. On 5 April 2011, he lodged an appeal against the orders made by Judge Herriman in the tenancy dispute. Both appeals were filed in Supreme Court Action 1293 of 2010, being the file relating to the personal injury claim.
As neither the appeal lodged on 21 September 2010 nor that lodged on 5 April 2011 was set down for hearing within six months, r 296(2) of the Supreme Court Civil Rules 2006 (SA) operated to deem both appeals to have been discontinued and lapsed.
On 12 August 2015 Mr Russell lodged an interlocutory application seeking permission for both appeals to be listed before the Full Court. Stanley J made procedural orders and the application was then heard before Peek J on 30 October 2015. On 12 November 2015, Peek J dismissed the application by Mr Russell that the two appeals filed in Action 1293 of 2010 be listed for hearing in the Full Court.
Peek J rejected the contention by Mr Russell that s 60(2) of the Bankruptcy Act 1966 (Cth) had operated to impose a stay that prevented him from prosecuting his appeals to the Full Court during the period when he was bankrupt. Peek J accepted that Mr Russell was bankrupt from 20 December 2010 until 13 July 2015. However, s 60(4) of the Bankruptcy Act permitted the continuation of a personal injury claim by a bankrupt. The delay was otherwise unexplained.
Peek J indicated that, in his opinion, the prospects of success on any appeal from the judgment of Judge Millsteed were extremely low. His Honour also indicated that the prospects of success on any appeal from the judgment of Judge Herriman were virtually nil.
Peek J also adopted with approval what he described as the “wise words” of Judge Herriman that:[15]
I have found the appellant’s pursuit of both appeals to be frivolous, vexatious and an abuse of court process and, indeed, his repeated attempts at re-litigating a matter already judicially determined against him, put him at risk of being declared a vexatious litigant.
[15] Ibid at [39] (Peek J).
Peek J noted that the risk that Mr Russell might be declared a vexatious litigant had been accentuated by his conduct since Judge Herriman’s judgment.
Peek J declared that any appeal that had been instituted in Action 1293 of 2010 was taken to have been discontinued and lapsed pursuant to r 296(2). I consider that this order applied to Mr Russell’s appeals to the Full Court in relation to the personal injury claim and also the tenancy claim.
On 19 January 2016, Mr Russell filed in Supreme Court action 1293 of 2010 a notice of appeal (FDN 11) from the judgment of Peek J.
The judgment of Stanley J in Action 934 of 2015
On 10 August 2015, Mr Russell filed another notice of appeal to the Full Court with respect to the orders of Judge Herriman in District Court Action 256 of 2007, i.e. the tenancy dispute. The notice of appeal was recorded as FDN 1 and was the commencement of Supreme Court Action 934 of 2015.
It is important to note that Mr Russell lodged this further appeal notwithstanding that:
(a) his appeal of 21 September 2010 against Judge Herriman’s orders in the tenancy dispute had been deemed by r 296(2) to have been discontinued and lapsed as it was not set down within six months; and
(b)on 12 November 2015, in Action 1293 of 2010, Peek J had dismissed Mr Russell’s application that the appeal against Judge Herriman’s orders be listed for hearing in the Full Court.
On 26 February 2016, Mr Russell filed two interlocutory applications in identical terms seeking an extension of time for the provision of appeal books in relation to the appeals in the Supreme Court Actions 1293 of 2010 and 934 of 2015.
On 21 April 2016, Polites Investments filed an interlocutory application seeking the summary dismissal or strikeout of the notice of appeal from the judgment of Peek J that had been filed on 19 January 2016 in Supreme Court Action 934 of 2015.
Mr Russell then filed another interlocutory application seeking discovery from certain individuals connected with Polites Investments and their solicitors.
Stanley J delivered judgment on 17 August 2016 in relation to the interlocutory applications to which I have referred at [54] and [56] and the appeal dated 19 January 2016.[16] Stanley J made the following orders:
·It was unnecessary to consider an extension of time for providing appeal books in Supreme Court Actions 1293 of 2010 and 934 of 2015.
·The applications by Mr Russell for discovery were dismissed.
·The notice of appeal dated 19 January 2016 filed by Mr Russell against the orders of Peek J made in Action 1293 of 2010 was summarily dismissed pursuant to rule 295(1)(h), i.e. it was obvious that the appeal could not succeed.
On 21 September 2016, Mr Russell filed in Action 1293 of 2010 a notice of appeal (FDN 24) against the three orders made by Stanley J on 17 August 2016.
[16] Russell v Polites Investments Pty Ltd [2016] SASC 129.
Orders by Doyle J on 25 August 2017 in Actions 1293 of 2010 and 934 of 2015
A multiplicity of matters relating to proceedings instituted by Mr Russell came before Doyle J in Actions 1293 of 2010 and 934 of 2015. His Honour delivered ex tempore reasons on 25 August 2017. Doyle J initially focused on determining what matters were outstanding in Action 1293 of 2010. His Honour found that the only outstanding matter in that action was the application by Mr Russell made on 28 July 2017 (being FDN 27) in which he sought an extension of time and permission to appeal.[17] His Honour was unable to determine to what matter this application was intended to relate. There was no proposed notice of appeal nor any grounds of appeal. His Honour concluded that FDN 27 may relate to one of the appeals instituted by Mr Russell in Action 934 of 2015. Those appeals were either FDN 1, which was the appeal from Judge Herriman, or FDN 11, being the appeal from Stanley J.
[17] In fact FDN 24, being the appeal filed by Mr Russell on 21 September 2016 against the three orders made by Stanley J on 17 August 2016, was still outstanding. However, FDN 24 is identical to FDN 11 in Action 934 of 2015, which Doyle J found to have lapsed under r 296(2).
Doyle J then turned to consider Action 934 of 2015. As I have already noted, that action was commenced by the second appeal filed by Mr Russell against the decision of Judge Herriman and was comprised in document FDN 1. The earlier appeal by Mr Russell against the decision of Judge Herriman had been included in Action 1293 of 2010 (FDN 3) and had been dismissed by Peek J on 12 November 2015.
Doyle J held that, strictly speaking, the decision of Peek J did not deal with the second appeal against the decision of Judge Herriman lodged on 10 August 2015 (FDN 1 in Action 934 of 2015). Counsel for Polites Investments submitted that the second appeal against Judge Herriman should be dismissed under r 295(1)(h) on the ground that it could not possibly succeed. Doyle J accepted this submission and held that the notice of appeal in FDN 1 in Action 934 of 2015 should be dismissed for the reasons expressed by Peek J at paragraph [33] and by Stanley J at paragraph [45] in their respective judgments.
Doyle J also considered two further documents that he found to be outstanding in Action 934 of 2015. The first of those documents was FDN 11, being an appeal from the decision of Stanley J filed in September 2016. His Honour found that by virtue of r 296(2) this appeal was taken to have been discontinued and lapsed as it had not been set down within six months.
The second outstanding matter in Action 934 of 2015 dealt with by Doyle J was the application to extend time and for permission to appeal filed in July 2017 as FDN 13. His Honour found that the matter to which FDN 13 was intended to relate was not clear. The supporting affidavit, FDN 14, did not shed any coherent light upon the intended characterisation of FDN 13. Doyle J held that to the extent that FDN 13 was an attempt to reinstate or re-agitate the appeal from Judge Herriman contained in FDN 1, he considered that it should be dismissed as consequential upon his dismissal of that appeal. To the extent that FDN 13 was an attempt to re-agitate the appeal from Stanley J comprised in FDN 11 (which his Honour found to have lapsed) he did not consider that the application had any merit. No adequate explanation had been given for allowing that appeal to lapse nor was it now appropriate to order that it be set down or that any necessary extension of time be granted.
Doyle J noted that there was not sufficient evidence before him to explain more than a modest proportion of the 12 months that had passed since the decision of Stanley J and nor was he persuaded that there was any merit in the proposed appeal against the decision of Stanley J. Neither the submissions of Mr Russell, nor the material that he had filed, had isolated any particular issues or matters of merit that it would be appropriate for the Full Court to hear and determine. For that reason, to the extent that the application in FDN 13 relates to the appeal in FDN 11, he dismissed the application.
Doyle J dismissed the application in FDN 27 in Action 1293 of 2010 on the basis that, if it could be construed as somehow relating to documents in Action 934 of 2015, being either FDN 1 or FDN 11, it should be dismissed for the reasons he had already given. If it related to something else then it had not been properly explained nor any basis for it articulated. His Honour therefore dismissed the application in FDN 27 in Action 1293 of 2010.
Doyle J also directed that a large number of documents that Mr Russell had sought to file in the Registry on 24 August 2017 should not form part of the Court file. His Honour directed the Registry that the documents should not be received.
In summary, Doyle J:
·In Action 943 of 2015:
·Dismissed under r 295(1)(h) the appeal from Judge Herriman comprised in FDN 1.
·Dismissed the application that is FDN 13.
·Ordered that the appeal from Stanley J that is FDN 11 is taken to have been discontinued and to have lapsed.
·In Action 1293 of 2010 dismissed the application that is FDN 27.
·In respect of Actions 943 of 2015 and 1293 of 2010 directed the Registry not to receive the documents that Mr Russell purported to file on 24 August 2017.
Doyle J also made an order for costs of the two attendances before him and the costs of, and incidental to, the documents that are FDN 1, FDN 13 and FDN 11 in Action 934 of 2015 and FDN 27 in Action 1293 of 2010 on a party/party basis.
Doyle J did not deal with the notice of appeal (FDN 24) filed by Mr Russell on 21 September 2016 in Action 1293 of 2010 in which he challenged the three orders made by Stanley J on 17 August 2016. However, I note that FDN 24 is in all respects identical to the notice of appeal (FDN 11) in Action 934 of 2015 and was filed on the same day. Doyle J held that the latter appeal is taken to have been discontinued and to have lapsed by operation of r 296(2). In my view it seems inevitable that, if FDN 24 had come to the attention of Doyle J, his Honour would have proceeded on the basis that the appeal was taken to have been discontinued and to have lapsed under r 296(2).
Notice of appeal in Action 1293 of 2010 dated 13 September 2017
On 13 September 2017, Mr Russell filed a notice of appeal in which he complained about the orders made by Doyle J on 25 August 2017 in Actions 1293 of 2010 and 934 of 2015. While the orders complained about are those made by Doyle J, it is apparent from the grounds of appeal and the orders sought by Mr Russell that he also seeks to challenge the earlier orders made by Peek J and Stanley J.
The notice of appeal filed on 13 September 2017 in Action 1293 of 2010 is FDN 29. This was later supported by an affidavit with one exhibit sworn by Mr Russell on 14 November 2017 (FDN 30 and FDN 30A).
The grounds of appeal stated by Mr Russell are as follows:
1Abuses of process
2Justice Peek denied appeal on time due to bankruptcy period
3Justice Stanley did concur with s60 Bankruptcy Act and relied on J. Herriman
4Justice Doyle has not been given appeal notice lodged 21/9/2016 1293/2010 with FDN 11 934-2015 while relying on the later FDN 29 and wrongly assumed the appellant was too late to appeal being out of time while waiting on the permission on the 21/9/2016 notice of appeal.

The exhibit (FDN 30A) to the affidavit sworn by Mr Russell on 14 November 2017 is itself described as an affidavit albeit that the document has not been sworn or affirmed. Nothing turns on that omission as the document comprises only submissions.
In addition to the exhibit to his affidavit, Mr Russell filed two separate summaries of argument in Actions 934 of 2015 and 1293 of 2010.
At best, the material prepared by Mr Russell is very difficult to follow and at worst, incomprehensible. In essence, he alleges that he failed before Judge Millsteed due to improper conduct, collusion, fraud, perjury and the misleading of the Court. The primary basis for those allegations appears to be that Judge Millsteed made several findings that were adverse to Mr Russell’s case.
Notice of appeal in Action 934 of 2010 dated 13 September 2017
The grounds stated in Mr Russell’s notice of appeal against the decision of Doyle J, in Supreme Court Action 934 of 2015 (FDN 15) are as follows:
1Abuse of process
2The illegal orders of 31/5/2010 Master Blumberg against the rules of the Supreme Court to achieve an illegal bankruptcy to stop the appeal of both Masters 1293/10 and 934/15 and then on the end of that the illegal bankruptcy in 2015 and the resuming matters’ appeals to be denied on the wrongful assumption the appellant could have appealed under s60 of the Bankruptcy Act to be further denied the appeals of both matters.
3The appellant claims the respondents have committed perjury and as their legal representatives have misled the Court’s continually which the appellant has been denied justice in the review of the corruption.
Interlocutory applications dated 17 July 2019
On 17 July 2019, a few weeks before Action 1293 of 2010 was initially listed for hearing before the Full Court, Mr Russell filed two interlocutory applications. One application was filed in Action 1293 of 2010, while the other was filed in Action 934 of 2015.
In the interlocutory application in Action 1293 of 2010, Mr Russell seeks the following order:
Order for a further claim of costs for damages for three million dollars due to the respondents fraud and perjuries, omissions and conspiracies to cause harm and damages bankruptcies and other.
(Original in capitals)
In the interlocutory application in Action 934 of 2015, Mr Russell seeks the following very similar order:
Order a further claim of costs of three million dollars due to fraud and perjury of Polites Investments and others.
(Original in capitals)
I have considered the disposition of these interlocutory applications at [128] below.
Hearing in the Full Court
The Full Court heard oral submissions in Action 1293 of 2010. The initial hearing was adjourned, ultimately for several months, at the request of Mr Russell as he was not ready to proceed. After various procedural difficulties which it is unnecessary to recount, the hearing was resumed. Mr Russell appeared in person while the defendants were represented by senior counsel.
Because I had strong reservations about the capacity of Mr Russell to deal effectively with the preparation of the casebook, and so as to facilitate the hearing of the appeal, I had arranged for my associate to prepare the casebook. The content of the casebook was ultimately agreed by the parties. Nevertheless, immediately prior to the hearing, Mr Russell filed a further four volumes of submissions and documents. At the commencement of the hearing he also handed up copies of correspondence sent to him by the Adelaide City Council. I will refer to the content of that correspondence later. Mr Russell also handed up another book of documents described as submissions.[18] While the Court has perused the latter material, it largely comprises further repetitive submissions or contains additional copies of documents previously received or produced by this Court and the District Court. That is also the case with a further two volumes of documents lodged by Mr Russell with the Court several weeks after the hearing in the Full Court.
[18] The last page in that document is numbered 311. However, the numbering is not sequential, i.e. there is something less than 311 pages.
Consideration
I have carefully read and considered the three Supreme Court judgments delivered by Peek, Stanley and Doyle JJ and also the reasons published in the District Court by Judges Millsteed, Herriman and Stretton.
Certain of the observations made by Judge Herriman in 2011 remain apposite, those being:[19]
[19] Russell v Polites Investments Pty Ltd [2011] SADC 30 at [22], [35], [36] (Judge Herriman).
[22] Further, having regard to the appellant’s continued failure to articulate a maintainable cause of action, his refusal to accept the binding effect of Judge Millsteed’s findings, whether in the hearings before the learned Masters or before me, and the scandalous accusations he makes in his affidavit of 8 December 2010 (FDN 35) of bias and corruption, I find myself satisfied that his pursuit of this appeal is frivolous, vexatious and an abuse of court process.
…
[35]This long and sorry saga can be thus summarised:
(1)     In the personal injury claim the appellant specifically raised issues touching upon the conduct of the parties in and about the assignment of the subject lease and as to its true meaning. Evidence was called on those issues and His Honour Judge Millsteed specifically found against the appellant’s contentions.
(2)     Those matters having been litigated and judicially determined, it is not open to the appellant to seek to re-litigate them, even if the form of relief sought by him differs from that sought in the personal injury claim, yet he has sought to do so, both in these proceedings and in the 2010 Magistrates Court action.
He must understand that he is not at liberty to do that. He has been told as much several times before but seems unprepared to accept it.
(3)     He was unable to articulate or plead any other maintainable cause against the respondent in these proceedings and this led to the making of security and stay orders.
(4)     Those orders remained in place for several months without any appeal having been lodged nor security provided, nor indeed any attempt by the appellant to seek to extend the time for compliance with the security order.
(5)     Ultimately, when the respondent’s application for dismissal of the proceedings came on for hearing, the appellant still had not sought to plead a maintainable cause nor had he taken any steps with respect to the security order.
In consequence, Master Blumberg dismissed the appellant’s claim. Although not strictly called upon to deal with the merit issues decided upon by Master Bampton, he also considered and noted that he agreed with her findings.
With all due respect to both learned Masters, I must say that I do, too.
(6)     I have refused the appellant’s application for extension of time on each appeal.
(7)     The appellant advanced no new material or any argument satisfying me that either Master acted on a wrong principle, made incorrect factual findings, had regard to extraneous or irrelevant matters, or failed to give weight or sufficient weight to relevant matters.
There was no other reason advanced for departing from the decision of either Master and, indeed, all that was effectively put to the court on the hearing of each appeal was a submission that the appellant was impecunious and otherwise repetition of his contentions as to the terms of the lease assignment.
(8)     On the merits generally, it appears to me that the appellant has been afforded every opportunity to properly plead a cause in this matter and he has failed to do so.
(9)     I have found the appellant’s pursuit of both appeals to be frivolous, vexatious and an abuse of court process and, indeed, his repeated attempts at re-litigating a matter already judicially determined against him, put him at risk of being declared a vexatious litigant.
[36]Ultimately, there is a serious and practical need for finality in litigation and in respect of the matters which here excite the appellant, that point has been reached and he must accept that.
While I consider that the observations made by Judge Herriman have real force, I also have approached these appeals consistently with the observation made by Judge Stretton that “it is important that courts exercise patience and care when dealing with impecunious litigants in person who are attempting to exercise their important right, as any other citizen, of access to courts to secure, protect or defend their legal interests.”[20] Nevertheless, for the reasons that follow, I have found that there is no merit in the various contentions advanced by Mr Russell. He has failed to identify any appealable error in relation to the judgments of Judge Herriman and Judge Millsteed or in the subsequent consideration by Peek, Stanley and Doyle JJ. His dissatisfaction with the outcome is not a valid ground of appeal.
[20] Russell v Polites Investments Pty Ltd (No 2) [2015] SADC 128 at [41] (Judge Stretton).
Bankruptcy as excuse for delay
In his written submissions Mr Russell challenged the adverse findings made concerning his failure to comply with the time limits for instituting appeals on the basis that in the period from 20 December 2010 until 13 July 2015 he was bankrupt and unable to pursue proceedings without the approval of his trustee in bankruptcy. While Mr Russell did not pursue this issue in his oral submissions before the Full Court, I will nevertheless deal with it.
Section 60(2) of the Bankruptcy Act provides that an action commenced by a person who subsequently becomes a bankrupt is, upon them becoming bankrupt, stayed until the trustee makes an election in writing to prosecute or discontinue the action. That position is qualified by s 60(4) which provides that a bankrupt may continue in their own name an action commenced before they became bankrupt in respect of any personal injury or wrong done to the bankrupt or their family.
The clear effect of s 60(4) of the Bankruptcy Act is that Mr Russell was entitled to continue the personal injury claim after his bankruptcy without any requirement for his trustee to make an election. Mr Russell has not suggested that he sought the approval of the trustee to continue the proceedings in either the tenancy claim (where approval was required) or the personal injury claim (where it was not required). I also note that there was a delay from July 2009 until October 2010 in appealing against the decision of Master Bampton. However, Mr Russell did not become bankrupt until 20 December 2010. Thus, his bankruptcy cannot explain the delay.
In light of the preceding matters, Mr Russell cannot rely upon the statutory stay under s 60 of the Bankruptcy Act to justify his failure to lodge appeals, or to set appeals down for hearing, within the required time limits.
While most of the appeals lodged by Mr Russell were out of time, Peek, Stanley and Doyle JJ proceeded on the basis that the appeals had lapsed under r 296(2) as they were not set down within six months. The reliance placed by Mr Russell upon the statutory stay under the Bankruptcy Act does not in any way explain his failure to set down appeals for hearing within six months after they had been lodged. The failure to observe that time limit had nothing to do with the operation of the Bankruptcy Act and appears to be entirely the product of inaction by Mr Russell.
Alleged lies by witnesses about their availability at personal injury trial
Mr Russell complains that two witnesses had lied to explain their unavailability on the first day of the trial of the personal injury claim and a third witness was unavailable throughout the trial.
The basis upon which Mr Russell alleges that the witness, Peter Murphy, lied is tenuous in the extreme. Mr Murphy was the leasing officer for the Polites Group. He said that he was unavailable on the first day of the trial as he had to attend his father’s funeral. Mr Russell claims that notices of the death and funeral were not published in the Advertiser. Mr Russell further asserts that Mr Murphy could afford to have such notices published. As this did not occur, Mr Russell contends that Mr Murphy must have lied about his unavailability. Mr Russell also contends that Mr Murphy should be required to produce his father’s death certificate. Mr Russell’s submission completely overlooks that many people choose not to advertise the death and funeral of family members and treat bereavement as a private matter.
The proceedings on the first day of the trial finished at 3.31 p.m. rather than the usual time of 4.30 p.m. In part, that was because Mr Murphy was not available. However, Mr Murphy attended on the second day of the trial and gave evidence for almost the entirety of that day. The fact that he did not attend on the first day clearly did not cause any prejudice to Mr Russell.
I also note that at the commencement of Mr Murphy’s evidence, Mr Russell offered his condolences and did not call into question the truth of the message given to the Court that Mr Murphy could not attend court on the first day of the trial due to his father’s funeral.
Mr Russell also alleges that Mr George Polites had falsely indicated that he was unavailable on the first day of the trial as he had travelled to Greece to attend to family business following the death of a relative. However, other than making the bare assertion that this explanation was false, Mr Russell has not explained the basis for his contention that Mr Polites lied about this issue. In any event, the trial was adjourned for several days until Mr Polites became available. Mr Russell suffered no prejudice from his earlier absence.
Mr Hans Vormelker, a building inspector employed by the Adelaide City Council, was not available to give evidence on the first four days of the trial in September 2006 due to significant health issues. After the trial resumed in September 2007, Mr Russell informed the Court that he had spoken to Mr Vormelker. He had by then resumed work. Judge Millsteed specifically asked Mr Russell if he intended to call Mr Vormelker as a witness. Mr Russell stated that he did not intend to do so.
Mr Russell had denied in his evidence in chief that he had been told by Mr Vormelker that he was not permitted to use the upper floor of the premises. However, in cross examination, Mr Russell conceded that he had been given this information by Mr Vormelker. I infer that it was for this reason that Mr Russell decided that he did not need to call Mr Vormelker as a witness. It is manifestly clear that the unavailability of Mr Vormelker in September 2006 did not cause any prejudice to Mr Russell.
The allegation that Mr Murphy and Mr Polites had lied about their availability does not in any way assist Mr Russell’s appeal against the decision of Judge Millsteed. First, as Mr Russell acknowledged before the Full Court, those witnesses did give evidence later in the trial. In fact, they both gave evidence at considerable length. Judge Millsteed found that their evidence did not assist Mr Russell’s case. Secondly, even if the witnesses had lied about their availability, that was merely a collateral matter going to credit. Thirdly, there is nothing to indicate that the witnesses did lie.
Mr Russell’s contention, based upon the alleged failure by Mr Murphy or his family to advertise his father’s death and funeral, is wild speculation. Similarly, Mr Russell has not advanced any reason as to why Mr Polites is said to have lied about his availability. Moreover, when Mr Murphy and Mr Polites gave evidence, Mr Russell did not put to them that they had provided false information about their availability.
The complaints made by Mr Russell about the availability of witnesses are completely devoid of merit.
Loss of medical reports relating to the personal injury claim
Another example of reliance upon a matter of no consequence to the outcome of the personal injury trial is the emphasis placed by Mr Russell on the alleged misplacement of a booklet containing copies of medical reports.
The transcript shows that a booklet of medical reports was received by Judge Millsteed shortly before the commencement of the trial. Judge Millsteed stated that the booklet had been held in the chambers of another judge who had been scheduled to conduct the trial but became unavailable due to illness. Mr Russell alleges that Judge Millsteed lied about this issue.
The trial was adjourned on 21 September 2006 and did not resume until 6 September 2007. Mr Russell had not organised the attendance of medical witnesses during the first period of the trial. However, when the trial resumed in 2007 Mr Russell had attended to that matter and the Court received evidence from Dr Vivek Agarwal and Dr Janet Frost. Those two medical witnesses were general practitioners who had treated Mr Russell.
Judge Millsteed dismissed the proceedings following a “no case to answer” submission based upon the failure of Mr Russell to establish that Polites Investments had breached its duty of care. Thus, it was unnecessary for his Honour to decide whether the evidence of Dr Agarwal and Dr Frost established that Mr Russell had suffered the injuries that he alleged.
It is absolutely clear that whether or not the booklet of medical evidence was mislaid for a period prior to the trial had absolutely no bearing on the outcome of the proceedings. Once again, there is plainly no merit in the contention advanced by Mr Russell.
Incorrect certificate of title or street number in the personal injury claim
Mr Russell has referred at some length in his written submissions to the contention that an incorrect number of the certificate of title for the premises that he had leased in Hindley Street was recorded on his lease. He also contended in his written and oral submissions that the street number of the leased premises was incorrectly recorded. Judge Millsteed made no reference to the certificate of title in his judgment other than to say that the premises at 254 Hindley Street rented by Mr Russell, and also the adjacent premises at 256 to 258 Hindley Street, were on the same certificate of title.
A letter from the Adelaide City Council provided to the Full Court at the commencement of the hearing tends to support the suggestion that an incorrect street number had been used by the defendants. That may possibly have occurred because there were several adjacent business premises on the one land title owned by Polites Investments.
Regardless of the explanation, neither the certificate of title nor the street number was relevant to the personal injury claim. The relevant issues were the terms of the lease, the extent of the premises leased by Mr Russell, the condition of those premises, whether warnings had been given to Mr Russell about the staircase, the conduct of the defendant landlord and the circumstances in which Mr Russell was injured. Accordingly, even if the complaints by Mr Russell about the certificate of title and the street number are correct, that could have no possible bearing on the correctness of the decision made by Judge Millsteed. Moreover, Mr Russell acknowledged during his oral submissions before the Full Court that the lease he had entered with Polites Investments was the lease considered by Judge Millsteed.
Yet again, Mr Russell has spent a great deal of time and energy pursuing an issue that is irrelevant to the outcome of the personal injury trial.
Allegation in the tenancy claim that premises “unclassified”
Mr Russell has alleged that the premises rented to him by Polites Investments were “unclassified”. The Full Court sought to clarify with Mr Russell what he contended was the significance of this issue but received little assistance.
Judge Millsteed referred at [57] in his judgment to the issue of an enforcement notice by the Adelaide City Council which alleged, amongst other matters, that Polites Investments had breached s 84 of the Development Act 1993 (SA) by changing “the use of the unclassified first floor to residential” without having obtained written development approval from the Council. The enforcement notice was signed by Mr Vormelker.

Mr Polites testified that after the enforcement notice was received he had instructed Mr Russell to remove a large amount of rubbish from the premises and to cease using the upper floor. Mr Murphy stated that he was present on another occasion when the late Mr Con Polites, the father of George Polites, had given Mr Russell similar directions. Mr Russell agreed that he had been directed to remove rubbish but denied receiving any direction to cease using the upper floor. Judge Millsteed rejected at [60] the evidence of Mr Russell on this point and found that he had been specifically informed that he was not allowed to use the upper floor.
It is quite clear that Judge Millsteed was fully aware of the view held by the Adelaide City Council and Mr Vormelker that Polites Investments had improperly changed the use of the upper floor. However, his Honour found that Mr Russell had been using the upper floor without the permission of Polites Investments. His Honour also found that this usage was contrary to direct instructions given to Mr Russell by Mr George Polites and Mr Con Polites. The effect of his Honour’s finding was that Polites Investments had not changed the use of the building contrary to its classification but rather that Mr Russell was improperly making use of the premises and that fact had led to the intervention of the Council.
In this light, the complaint made by Mr Russell about the building not being classified does not demonstrate error in the findings of Judge Millsteed.
Allegation in tenancy claim that Master Blumberg exceeded jurisdiction
Mr Russell has also complained in his written submissions that Master Blumberg did not have jurisdiction to review the decisions made by Master Bampton in the tenancy claim. It appears that Mr Russell is contending that Judge Herriman erred by failing to consider the allegation that Master Blumberg lacked jurisdiction. Master Blumberg declined to vary the order made by Master Bampton that Mr Russell provide $15,000 as security for costs. Master Blumberg had jurisdiction to reconsider whether that subsisting interlocutory order remained appropriate or should be varied or set aside. He did not purport to determine an appeal against the decision of Master Bampton.
The decision by Master Blumberg that Mr Russell’s claim in the tenancy matter be dismissed for want of prosecution was also clearly within his jurisdiction. The order dismissing the proceedings replaced the stay order made by Master Bampton. The basis for that decision was that Mr Russell had not, would not and could not provide the security for costs of $15,000 ordered by Master Bampton.
The allegation that Master Blumberg exceeded his jurisdiction is clearly incorrect. As I have said, the Master had jurisdiction to consider whether subsisting interlocutory orders made by another Master remained relevant and appropriate.
Allegation that Judge Millsteed acted unfairly
Mr Russell has also made sweeping allegations about the manner in which Judge Millsteed conducted the trial of the personal injury claim.
I have reviewed the transcript of the trial before Judge Millsteed. I am satisfied that the scandalous allegations made by Mr Russell have no basis in law or fact. In my very firm opinion Judge Millsteed conducted the trial in a manner that was absolutely fair and made appropriate allowance for the fact that Mr Russell was not legally represented. In doing so, his Honour showed considerable tolerance and flexibility. His Honour went as far as is permissible to assist Mr Russell to deal with the complexities of the trial process and the rules of evidence. Thus, for example, Judge Millsteed took over the examination in chief of Mr Murphy and Mr Polites. No doubt his Honour did so as Mr Russell was having difficulty in effectively conducting the examination. However, if any criticism might be made of his Honour’s intervention, it is that at some points witnesses called by Mr Russell were effectively subject to cross examination by the judge during their examination in chief. Of course, that assisted Mr Russell.
On multiple occasions, it was necessary for Judge Millsteed to intervene as Mr Russell did not allow witnesses to finish their answer without interruption. However, I also note that Mr Russell accepted his Honour’s directions and responded appropriately.
Perjury and fraud on the part of counsel and others
In both his written and oral submissions, Mr Russell has persistently made sweeping allegations of perjury and fraud against counsel and witnesses. Mr Russell apparently regards those allegations as the explanation for the failure of his various claims and applications before multiple judges and masters of this Court and the District Court. In other words, he apparently believes that his lack of success is due to serious impropriety by others rather than the lack of merit in his claims. For the several reasons I have indicated above, there is no basis for the allegations made by Mr Russell.
Conclusion
Appeals relating to Judge Herriman’s decision in the tenancy dispute
The appeal dismissed by Judge Herriman in the tenancy dispute concerned interlocutory decisions made by Master Bampton and Master Blumberg. Thus, in accordance with r 288(1)(a)(iii), the appeals from the decisions of Peek, Stanley and Doyle JJ may only be heard with the permission of the Full Court.
The interlocutory decisions made by Master Bampton and Master Blumberg involved the exercise of a judicial discretion. For that reason, in considering whether Mr Russell’s appeal had any prospect of success, Judge Herriman applied the principles stated by the High Court in House v The King.[21] His Honour effectively found that the decisions made by Master Bampton and Master Blumberg did not display either a process error or an outcome error and were well within the bounds of the judicial discretion held by a Master. I strongly consider that Judge Herriman carefully considered the relevant issues and arrived at the correct decision.
[21] (1936) 55 CLR 499.
I hold the same view in relation to the findings and orders made by Peek, Stanley and Doyle JJ relating to the appeals against the decision of Judge Herriman to the extent that their Honours refused to allow extensions of time under r 296(2) for the setting down of these appeals and also in respect of their findings under r 295(1)(h) that the appeals had no prospect of success. Mr Russell has not advanced any valid or acceptable reason for failing to set down his multiple appeals within the required six months. His appeals also have no prospect of success.
I would refuse permission to appeal against the orders made by Peek J on 12 November 2015, Stanley J on 17 November 2016 and Doyle J on 25 August 2017 insofar as those orders relate to appeals lodged by Mr Russell against the orders made by Judge Herriman in the District Court on 23 March 2011.
Appeals relating to Judge Millsteed’s decision in the personal injury claim
The appeals against the orders made by Peek, Stanley and Doyle JJ insofar as they relate to appeals by Mr Russell against the decision of Judge Millsteed are also subject to a permission requirement. That is the case because Peek, Stanley and Doyle JJ respectively refused to extend time under r 296(2) for the setting down of an appeal or found that the appeals should be dismissed under r 295(1)(h) as they had no prospect of success. In each case the orders were interlocutory and may only be appealed with the permission of the Full Court under r 288(1)(a)(i).
For the reasons given above, I consider that permission to appeal should be refused as Mr Russell has failed to identify any error on the part of Peek, Stanley and Doyle JJ and nor has he identified any error in the decision of Judge Millsteed.
FDN 24 in Action 1293 of 2010
It is necessary to deal with FDN 24 in Action 1293 of 2010. That notice of appeal challenges the three orders made by Stanley J on 17 August 2016. However, as I have previously noted, FDN 24 is in all respects identical to the notice of appeal FDN 11 in Action 934 of 2015. The two documents were filed on the same day. Doyle J held that the latter appeal was taken to have been discontinued and had lapsed by operation of r 296(2). However, his Honour did not consider FDN 24.
While r 296(2) has already operated of its own force to deem the appeal in FDN 24 to have been discontinued and to have lapsed, given that Mr Russell agitated the fate of FDN 24 before me at a time when the document was not available to me, it should be confirmed that r 296(2) has operated and the Full Court finds no special reason to reinstate the appeal. The appeal might also be dismissed under r 295(1)(h) as it is obvious that it cannot succeed, but the refusal of permission under r 296(2) is sufficient to dispose of the appeal.
Interlocutory applications dated 17 July 2019
Both of the interlocutory applications filed by Mr Russell on 17 July 2019 seek orders couched in the language of “costs”. However, on a plain reading of the applications it is apparent that Mr Russell seeks, in reality, damages (in the amount of $3,000,000) from the respondent on the basis of various allegations of misconduct. The nature of the misconduct alleged by Mr Russell closely mirrors contentions that he has made throughout the history of these proceedings. As I have already noted above, there is no merit in any of the various contentions advanced by Mr Russell. Moreover, an interlocutory application is not the appropriate means by which to seek compensation in the form of damages.
I would therefore dismiss the two interlocutory applications filed by Mr Russell on 17 July 2019.
Orders
I would order that:
1Permission to appeal is refused in respect of the appeals against the orders made by Peek J on 12 November 2015, Stanley J 17 August 2016 and Doyle J on 25 August 2017 in Supreme Court Action 1293 of 2010 and Action 934 of 2015;
2The two interlocutory applications filed by Mr Russell on 17 July 2019 are dismissed.
3Permission to extend the time for setting down the appeal in FDN 24 in Action 1293 of 2010 is refused under r 296(2).
4The Registry is directed not to accept further documents from Mr Russell that:
a.relate to Supreme Court Action 1293 of 2010;
b.relate to Supreme Court Action 934 of 2015;
c.seek to appeal against the orders made by Judge Millsteed in District Court action 925 of 2003;
d.seek to appeal against the orders made by Judge Herriman in District Court action 256 of 2007
e.seek to appeal against the orders made by Justices Peek, Stanley and Doyle in respect of appeals against the orders made by Judge Millsteed in District Court action 925 of 2003 and against the orders made by Judge Herriman in District Court action 256 of 2007.
DAVID AJ: I agree with the orders proposed by Parker J. I also agree with his reasons.