Russell v Polites Investments Pty Ltd - [2016] SASC 129

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
RUSSELL v POLITES INVESTMENTS P/L
[2016] SASC 129
Judgment of The Honourable Justice Stanley
17 August 2016
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
PROCEDURE - DISCOVERY AND INTERROGATORIES - DISCOVERY AND INSPECTION OF DOCUMENTS - DISCOVERY OF DOCUMENTS - GENERALLY
The court has before it four interlocutory applications. There are three applications by the appellant, Mr Russell. The first and second applications are mirror images of each other brought in separate actions instituting appeals from judgments of the District Court. They seek an extension of time for the provision of appeal books for appeals brought against judgments of the District Court dismissing claims by the appellant against the respondent for damages for personal injury and for breach of lease. In the third application the appellant seeks orders in the nature of discovery in the appeal from the dismissal of his claim for damages for personal injury.
The respondent brings its own interlocutory application. It seeks an order that the appellant’s notice of appeal be summarily dismissed or, in the alternative, struck out, together with an application for costs.
Held:
1. The appellant has not put forward any arguable ground of appeal nor any reason why an extension of time should be granted or why permission to appeal should be granted. The appeal is well out of time and without merit. It is clear beyond argument that the appeal against the judgment of Peek J of 12 November 2015 must fail (at [44]).
2. Dismiss the appellant’s notice of appeal filed on 19 January 2016 (at [53]).
3. It is unnecessary to consider an extension of time for providing the appeal books in the actions SCCIV-15-934 and SCCIV-10-1293 (at [53]).
4. Dismiss the application for discovery from Mr Murphy, Mr Polites, Mr Ryder, Mr Vormelker and Mr Sekhon (at [53]).
Supreme Court Civil Rules 2006 (SA) r 117(2)(e), r 136, r 232, r 288, 290(1)(c), r 295(1)(h), r 296(2); Supreme Court Civil Supplementary Rules 2014 (SA) r 240(1)(b); Bankruptcy Act 1966 (Cth) r 60, referred to.
Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279, discussed.
Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2009] SASC 273; Purins v Alpine Constructions Pty Ltd [2008] SASC 11; Morgan v WorkCover Corporation [2013] SASC 47; Slinko v Guardianship and Administration Tribunal [2006] 2 Qd R 279; B Q and H M Doe Pty Ltd v National Australia Bank [1999] SASC 124; Rajski v Bainton (1990) 22 NSWLR 125; Buying Systems (Australia) Pty Ltd v Tien Mah Litho Printing Co (PTE) Ltd (1986) 5 NSWLR 317; Spurway v Police [2011] SASC 177; Duke Group v Arthur Young (No. 2) (1991) 4 ACSR 355; Russell v Polites Investments Pty Ltd [2015] SASC 181; Spencer v Commonwealth (2010) 241 CLR 118; O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175; Brocx v Hughes (2010) 41 WAR 84, considered.

RUSSELL v POLITES INVESTMENTS P/L
[2016] SASC 129
Interlocutory application
STANLEY J:
Introduction

The Court has before it four interlocutory applications. There are three applications by the appellant, Mr Russell.[1] The first and second applications are mirror images of each other brought in separate actions instituting appeals from judgments of the District Court. They seek an extension of time for the provision of appeal books for appeals brought against judgments of the District Court dismissing claims by the appellant against the respondent for damages for personal injury and for breach of lease. In the third application the appellant seeks orders in the nature of discovery in the appeal from the dismissal of his claim for damages for personal injury.
[1] It is convenient to refer to Mr Russell as the appellant as he has brought three appeals to the Full Court although the most recent requires a grant of permission.
The respondent brings its own interlocutory application. It seeks an order that the appellant’s notice of appeal be summarily dismissed or, in the alternative, struck out, together with an application for costs.
Background to the applications
In order to explain the disposition of these applications it is convenient to start with a recent judgment of this Court.
On 12 November 2015 Peek J dismissed an application by the appellant for the setting down of appeals to the Full Court from the judgments in the District Court dismissing the appellant’s claims for damages for personal injury and breach of lease. Those notices of appeal had lapsed by operation of 6SCR 296(2). Peek J dismissed the application on the basis he was satisfied that the making of the order sought was not necessary for the proper conduct of the proceeding or otherwise was not in the interests of justice. He did so on the basis that he was satisfied that the prospects of success on either appeal would be extremely low or negligible.
It is necessary that I explain something of the history to those appeals.
In June 2003 the appellant brought proceedings in the District Court against the respondent, the Polites Princes Group of Companies, Polites Investment Pty Ltd and Mr George C Polites, claiming damages for person injury he allegedly suffered as a result of falling down stairs in premises leased from the respondent in 2000. On 8 July 2009, after the close of the appellant’s case on the trial of that action, a Judge of the District Court, Judge Millsteed, held that there was no case to answer and dismissed the proceedings. The judge held that on the facts, while a duty of care arose on the part of the respondent to the appellant, it had not breached its duty, and in any event, the appellant failed on the issue of causation, and finally, the judge found that any liability was excluded by the terms of the lease.
In February 2007 the appellant took action in the District Court against the respondent, claiming damages for losses allegedly suffered as a result of a breach of lease alleged to have occurred in 2000. That action was statute barred.
On 9 July 2009 a Master of the District Court ordered the appellant provide security for costs in that action by 14 August 2009. The appellant failed to pay the monies ordered by way of security into court.
Subsequently in January 2010 the respondent applied for the dismissal of the action and the appellant filed an application that he be permitted to proceed with the action without having to comply with the order for security. Those applications were heard by a different Master of the District Court. On 31 May 2010 the master dismissed the appellant’s application, dismissed his action for want of prosecution, made an award of costs in favour of the respondent and ordered an allocatur in relation to those costs.
On 21 September 2010 the appellant filed a notice of appeal in the Supreme Court in action 1293 of 2010 from the judgment of Judge Millsteed dismissing his claim for damages for personal injury. The appeal was some 13 months out of time.
On 18 October 2010 the appellant lodged separate appeals against each master’s decision. He sought an extension of time within which to institute the appeal. Two days later he filed an interlocutory application seeking orders that the allocatur ordered by the second master on 31 May 2010 be set aside.
On 20 December 2010 the appellant was declared bankrupt. His bankruptcy was not discharged until 13 July 2015.
On 23 March 2011 a Judge of the District Court, Judge Herriman, dismissed each appeal from the decisions of the masters as well as the application to set aside the allocatur.
On 5 April 2011 the appellant filed a notice of appeal in the Supreme Court, also in action 1293 of 2010, against the judgment of Judge Herriman dismissing the appeals from the masters.
Both appeals lapsed pursuant to 6SCR 296(2) as the appeals were not set down within six months.
On 10 August 2015 the appellant instituted new proceedings in this Court in action 934 of 2015 by filing a further notice of appeal against the judgment of Judge Herriman delivered on 23 March 2011.
On 12 August 2015 the appellant filed the interlocutory application, in effect seeking to have the appeals from the judgments of Judge Millsteed and Judge Herriman set down for hearing before the Full Court. It was that application which was dismissed by Peek J on 12 November 2015.
On 19 January 2016 the appellant filed a notice of appeal from the judgment of Peek J. He sought permission to appeal and orders for new trials for his claims for damages for personal injury and for breach of the lease. The notice of appeal was not filed within the time prescribed by the rules. It is some 50 days outside the prescribed time limit.
On 26 February 2016 the appellant filed identical interlocutory applications seeking an extension of time for the provision of the appeal books in relation to both appeals.
On 21 April 2016 the respondent filed its interlocutory application seeking to have the appellant’s notice of appeal summarily dismissed or, in the alternative, struck out.
As the judgment of Peek J delivered on 12 November 2015 is an interlocutory judgment, permission to appeal is required pursuant to 6SCR 288.
The applications
The appellant’s first and second interlocutory applications seek an extension of time for providing the appeal books for actions SCCIV-15-934 and SCCIV-10-1293. The third interlocutory application seeks the following orders:
1.Discovery from Mr Peter David Murphy (the Polites rental manager) of the proof of his father’s death and the day of that funeral he was attending as stated on Oath and Affidavit to avoid attending court on subpoena on 13 September 2006;
2.Discovery from Mr George Constantine Polites (the Polites Group CEO) of the relative’s name and relationship to himself and proof of death and day of that funeral as was stated on Oath and Affidavit as to avoid attending court on subpoena on 13 September 2006;
3.Discovery from Mr Kym Ryder of O’Loughlins Lawyers representing the Polites Group, of the receipt he said he had from the Registry for the photocopying of the two appeal books that his firm did deny receiving from the appellant;
4.Discovery of the subpoenaed Mr Hans Vormelker (the Adelaide City Council Building Inspector) of any medical certificates of any confirmation of the reasons given by the Polites Group (Mr Livesey QC) as to Mr Vormelker’s failures to attend the District Court to give his expert government evidence to the District Court trial 03-925 with Judge Millsteed presiding;
5.Discovery from Mr P Sekhon of Fittock & Co (2006) representing Polites to confirm an affidavit that he did confirm to Master Rice on 15 April 2006 that he said to the Court that he and Polites had received the medical evidence book.
The respondent’s interlocutory application seeks the summary dismissal of the appellant’s notice of appeal or, in the alternative, that the notice of appeal be struck out in whole, and that the appellant pay the respondent’s costs of and incidental to the application.
I understand the respondent’s interlocutory application seeks the summary dismissal of the appeal from the judgment of Peek J delivered on 12 November 2015 notwithstanding that it was made in action no. 934 of 2015 while the appeal was brought in action no. 1293 of 2010. That was the way Mr Tilley, counsel for the respondent, argued the application. That appeal is subject to the requirement for permission.
It is convenient first to address the respondent’s interlocutory application. That application concerns the appeal which the appellant has sought to bring against the judgment of Peek J delivered on 12 November 2015. That judgment dismissed an application that sought to have set down for hearing before the Full Court the appeals brought by the appellant against the dismissal of his claim for damages for personal injury and the dismissal of his appeals from the orders made by the District Court Masters which include an order dismissing, for want of prosecution, the claim for damages for breach of lease. It is convenient first to address the respondent’s interlocutory application because the interlocutory applications by the appellant seek relief which will be rendered otiose if the respondent’s application succeeds. That is because the appellant’s applications relate to the appeals from the dismissal of the claims for damages for personal injury and breach of lease.
The appellant is unrepresented
On the hearing of the applications before me, as has been the case since the trial in the District Court in the personal injuries action, the appellant appeared unrepresented. In considering these applications I have made due allowance for the fact that the appellant is not a legal practitioner and, as far as I am aware, has no legal training.
I received two affidavits of the appellant filed on 26 February 2016. In the longer of the two affidavits the appellant asserts that the prosecution of his appeal has been delayed because of his lack of legal knowledge, his lack of representation and his bankruptcy. Otherwise the affidavit and the appellant’s submissions before me largely consist of assertions of fact and assorted allegations of a scandalous nature against various judges, a master, senior counsel and others set out in a repetitive, discursive and largely incoherent fashion.
Power of the court to dismiss the appeal summarily
6SCR 295(1)(h) provides that the Court may summarily dismiss an appeal or an application for permission to appeal if it is obvious that it cannot succeed.
In an application for summary dismissal the onus is on the applicant to prove that it is obvious the appeal cannot succeed. The power is to be exercised cautiously and only where it is obvious that the appeal is without merit. Ultimately, the test is fixed by the language of the rule. The court must be satisfied that it is obvious that the appeal cannot succeed before it will make an order for summary dismissal.[2] Generally a judge would not exercise the power unless it is clear beyond argument that the appeal must fail.[3]   While some previous judgments of this Court suggest that the power would not be exercised unless the appeal is so defective in form and substance it must be struck out either as failing to invoke the jurisdiction of the Full Court or clearly as an abuse of process,[4] those authorities appear to be informed by the terms of the old r 95.08. The power conferred by that rule was more limited and confined to dismissing appeals which were incompetent. The terms of 6SCR 295(1)(h) are wider. The power conferred is similar to the power conferred by 6SCR 232 which confers power on the Court to grant summary judgment. That power must be exercised with caution and should not be exercised unless it is clear that there is no real question to be tried.[5] In O’Brien v Bank of Western Australia Ltd[6] the Court of Appeal of New South Wales summarised those principles as follows:[7]
The High Court decision in Spencer v The Commonwealth [2010] HCA 28; 241 CLR 118 was concerned with s 31A(2) of the Federal Court Act 1976 (Cth) but the following principles stated in it are of general application:
(a)     On a summary judgment application, the real issue is whether there is an underlying cause of action or defence, not simply whether one is pleaded (at [23]).
(b)     The critical question can be expressed as whether there is more than a "fanciful" prospect of success (at [25]) per French CJ and Gummow J) or whether the outcome is so certain that it would be an abuse of the process of the Court to allow the action to go forward (at [54] in the judgment of the plurality). Demonstration of the outcome of the litigation is required, not an assessment of the prospect of its success (ibid).
(c)     Powers to summarily terminate proceedings must be exercised with exceptional caution (ibid at [55]; see also French CJ and Gummow J at [24]).
[2]    Morgan v WorkCover Corporation [2013] SASC 47 at [14].
[3]    Purins v Alpine Constructions Pty Ltd [2008] SASC 11 at [2].
[4]    Landmark Operations Ltd v J Tiver Nominees Pty Ltd & Ors [2009] SASC 273 at [8].
[5]    Spencer v Commonwealth (2010) 241 CLR 118.
[6] [2013] NSWCA 71.
[7] [2013] NSWCA 71 at [3].
The power conferred by the rule may be exercised by a single Judge of the Court.
Power of the court to strike out the notice of appeal
Pursuant to 6SCR 117(2)(e) the court may strike out a document or proceeding if the court considers it frivolous, vexatious or an abuse of the process of the court. The definition of “proceeding” in 6SCR 4 includes appeals. “Frivolous” is generally understood to mean something not worthy of serious attention. In Slinko v Guardianship and Administration Tribunal[8] de Jersey CJ held that an appeal is frivolous or vexatious where it is paltry, not warranting serious attention and manifestly futile. The categories of abuse of process are manifold and not closed. They include where a party responsible for prosecuting a matter does not diligently prosecute their claim,[9] where there is no arguable case in fact or in law,[10] or where the claim is certain to fail.[11]
[8] [2006] 2 Qd R 279 at 283.
[9] B Q and H M Doe Pty Ltd v National Australia Bank [1999] SASC 124.
[10] Rajski v Bainton (1990) 22 NSWLR 125 at 128, 138 and 157.
[11] Buying Systems (Australia) Pty Ltd v Tien Mah Litho Printing Co (PTE) Ltd (1986) 5 NSWLR 317 at 323 – 326.
Power of the court to extend time
The granting of an extension of time involves an exercise of discretion. The overriding question in determining whether to grant the extension is whether the refusal to do so would result in a miscarriage of justice. In considering whether there would be a miscarriage of justice the court will consider the length of the delay, the reasons for the delay, the prejudice suffered by the other party by reason of the delay and the merits of the appeal.[12]
[12] Spurway v Police [2011] SASC 177 at [22].
Power of the court to grant permission to appeal
An appeal from an interlocutory judgment lies by permission of the Court.[13] Permission will only be granted to appeal against an interlocutory order where the court is satisfied that the decision sought to be impugned is either wrong or attended with sufficient doubt to warrant its reconsideration on appeal, or has the effect of working a substantial injustice on the applicant.[14]
[13] 6SCR 288(1)(a)(i).
[14] Duke Group Ltd (In Liq) v Arthur Young (R) (No. 2) (1991) 4 ACSR 355.
Should the appeal be dismissed summarily?
The application is supported by an affidavit of Michael Tilley sworn 21 April 2016.
The grounds of appeal are as follows:
The appellant has been continually appealing both these matters and has been subjected to abuse from many here as be detailed in the appellant’s affidavit. The appellant strongly objects to the issue of time used to stop the review of the corruption I have been subjected to by the South Australian Courts.
The grounds on which permission to appeal is sought are:
Seek permission in the interests of justice against perjury of Polites and their legal representation the abuse of process and wrongs which has caused many miscarriages of justice to the appellant who seeks a new fair trial of both matters to be joined which is undefendable.

The grounds upon which an extension of time is sought are:
The appellant has been actively appealing these matters since the judgments being delayed by the Registry or by technical matter albeit both appeals were submitted in time.
As I have said, the appeal is against the judgment of Peek J dismissing an application that the appeals from the District Court be set down for hearing before the Full Court.
As I have noted, the notice of appeal is some 50 days out of time. Further, the judgment which the appellant seeks to appeal is an interlocutory judgment. Accordingly, he requires permission to appeal.
In this context I note that as the appellant has not yet obtained permission to appeal, the time within which he is to lodge and serve the draft electronic index to the case books has not begun to run, having regard to the terms of supplementary rule 240(1)(b). As such, the appellant does not need the extension of time sought in his first and second interlocutory applications.
The appellant has not filed or served an application book or a summary of argument as required by 6SCR 290(1)(c) for the purposes of obtaining permission to appeal.
In this matter I am satisfied that the appellant has not put forward any arguable ground of appeal nor any reason why the extension of time should be granted or permission to appeal should be granted.
In this matter I am satisfied that it is proper to exercise the power conferred by 6SCR 295(1)(h) and summarily dismiss the appeal from the judgment of Peek J of 12 November 2015.
Having regard to the reasons of Peek J,[15] I am satisfied that there is no appealable error identified or identifiable. The appellant has not put forward any arguable ground of appeal. Neither has he put forward any reason why an extension of time should be granted or why permission to appeal should be granted. The appeal is well out of time and, in my view, without merit. I am satisfied it is clear beyond argument that the appeal must fail.
[15] [2015] SASC 181.
The appeals from the District Court lack merit. I am satisfied that no error has been demonstrated in the reasons of Judge Millsteed. I agree with the analysis of Peek J. An appeal from Judge Millsteed’s judgment was not brought for over 14 months. No satisfactory explanation for the delay has been given. None of this can be explained by the appellant’s bankruptcy which occurred subsequently. In relation to the appeal from Judge Herriman’s judgment, it is important to remember that he was hearing appeals from decisions of two masters respectively delivered on 9 July 2009 and 31 May 2010. Those appeals were instituted on 18 October 2010. The appeal was brought some 15 months after the first decision and some four and a half months after the second decision. This delay also was not satisfactorily explained. Again, the delay could not be explained by the appellant’s bankruptcy as this occurred subsequently. It is relevant that the originating action was instituted in February 2007. The cause of action was alleged to have arisen in August 2000. It was statute barred at the time the proceedings were commenced. The appellant did not satisfy the order for security made in July 2009. It is unsurprising that in May 2010 the master dismissed this action for want of prosecution. Recently there has been a change in the approach courts take to the conduct of litigation. There is now a much greater focus on the impact on the court and other litigants caused by the way in which parties conduct litigation. In Aon Risk Services Australia Ltd v Australian National University[16] the High Court held that the rules concerning civil litigation no longer are to be considered as directed only to the resolution of the dispute between the parties to a proceeding. The achievement of a just but timely and cost effective resolution of dispute has an effect upon the court and upon other litigants. While parties have the right to invoke the jurisdiction and the powers of the court in order to seek a resolution of their dispute, where a party has had a sufficient opportunity to prosecute his or her case, it may be necessary for the court to make a decision which may produce a sense of injustice in that party, for the sake of doing justice to the opponent and to other litigants.[17] I am satisfied there is no error in the reasons of Judge Herriman in dismissing the appeals. They lacked merit. I agree with the reasons of Peek J.
[16] [2009] 239 CLR 175
[17] Brocx v Hughes [2010] WASCA 57 at [93], (2010) 41 WAR 84 at 101.
I also reject the submission that the appellant’s bankruptcy prevented him from pursuing the appeals. The appellant was declared bankrupt on 20 December 2010. Yet he instituted an appeal against the judgment of Judge Herriman in this Court on 5 April 2011. Further, I agree with the analysis of Peek J that the declaration of bankruptcy was not an obstacle to the appellant prosecuting the appeal in the personal injuries action given the provision of s 60 of the Bankruptcy Act 1966 (Cth).
In addition if the appeal is not struck out the respondent will suffer prejudice with further costs and inconvenience in dealing with actions that concern events that occurred in 2000.
Strike out
Having regard to my conclusion in relation to the primary relief sought by the respondent it is unnecessary to consider the alternative application by the respondent to strike out the notice of appeal. Nonetheless, I indicate that had it been necessary I would have done so. I am satisfied that the notice of appeal is frivolous, vexatious and an abuse of process. Again I adopt the reasons of Peek J.[18]
[18] [2015] SASC 181 at [39].
The appellant’s interlocutory applications
Having regard to my conclusion that the notice of appeal should be summarily dismissed, it is unnecessary to consider the appellant’s interlocutory applications. However, I indicate that for the reasons expressed above, as the appellant has not yet obtained permission to appeal, the time for the appellant to lodge and serve the draft electronic index to the case books has not yet begun to run. Accordingly, the appellant does not need the extension of time sought in the first and second application. Had it been necessary I would have made no order on those applications.
In relation to the third interlocutory application brought by the appellant seeking orders in the nature of discovery, I would dismiss that application. Apart from the fact that it has been rendered otiose by the decision on the appellant’s interlocutory application, I consider the application itself lacks merit. The application is misconceived. Pursuant to 6SCR 136 a party is under an obligation to make disclosure of documents that are or have been in its possession which are directly relevant to a matter in issue in the proceedings. The application is directed to the respondent, Polites Investments Pty Ltd. It seeks orders for discovery from private individuals not from the respondent. While Peter David Murphy is or was an employee of the respondent company and Mr George Polites is or was a director of the respondent company, that does not make private documents in their possession documents that are discoverable as being in possession of the respondent company. In any event, the documents sought being proof of the death of a person and the day of the funeral are not directly relevant to an issue on the appeals. The appellant submits they go to the credit of Mr Murphy and Mr Polites. Mr Murphy and Mr Polites gave evidence before Judge Millsteed. The submission that they are relevant to credit demonstrates that they are relevant only to a collateral matter. In any event, what is sought is not a document but “proof” of a person’s death and the date of the funeral. While documents “proving” these matters may exist, it has not been demonstrated that they are in the possession of the respondent.
Further, discovery is sought of medical certificates relating to Mr Hans Vormelker’s non-attendance to give evidence before Judge Millsteed. It has not been established any such document is in the possession of the respondent. Mr Vormelker is or was an employee of the Adelaide City Council. In any event, they are not directly relevant to any issues on the appeals. Like the documents relating to Mr Murphy and Mr Polites, such documents, if they exist, could only be relevant to the credit of Mr Vormelker. That is a collateral matter.
Discovery is also sought from Mr Ryder, who is or was a solicitor for the respondent, of a receipt from the Registry for the photocopying of the two appeal books that his firm did not receive from the appellant. If such a document exists, I accept it is within the possession of the respondent, being within the control of the respondent. However, it is unclear to me how it is said to be directly relevant to an issue on the appeals. The appellant failed to explain its relevance. Discovery is also sought from Mr Sekhon, who is or was a solicitor for the respondent, to confirm an affidavit that he did confirm to Master Rice on 15 April 2006 that he said to the Court that he and Polites had received the medical evidence book. This is not a proper application for discovery. It does not seek disclosure of a document. It is also irrelevant to any issue that arises on the appeals which do not concern medical evidence.
Conclusion
In the circumstances I would make the following orders:
1.It is unnecessary to consider an extension of time for providing the appeal books in the actions SCCIV-15-934 and SCCIV-10-1293.
2.I would dismiss the application for discovery from Mr Murphy, Mr Polites, Mr Ryder, Mr Vormelker and Mr Sekhon.
3.I would dismiss the appellant’s notice of appeal filed on 19 January 2016.
I would hear the parties as to costs of all four applications.