Russell v Polites Investments Pty Ltd
[2015] SASC 181
•12 November 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Civil)
RUSSELL v POLITES INVESTMENTS PTY LTD
[2015] SASC 181
Judgment of The Honourable Justice Peek
12 November 2015
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
On 12 August 2015 the applicant filed an interlocutory application seeking permission that an appeal (Supreme Court Action 1293 of 2010) be listed for hearing before the Full Court, which he said had not been done due to his bankruptcy between 20 December 2010 and 13 July 2015.
There appear to be two notices of appeal in this matter. The first, filed on 21 September 2010, is against the judgment of Judge Millsteed (District Court Action 925 of 2003), dismissing the plaintiff’s case against each defendant and ordering costs. The second, filed on 5 April 2011, is against the judgment of Judge Herriman (District Court Action 256 of 2007) refusing long extensions of time within which to appeal from the orders of two District Court Masters. Judge Herriman had found that the proposed appeals were frivolous, vexatious and an abuse of the process of the Court. No appeal to the Supreme Court was set down for hearing within the 6 months prescribed by the Rules.
On 28 August 2015 this present application came before Stanley J who ordered that the applicant file and serve a supporting affidavit by close of business 25 September 2015. On 8 October 2015 the applicant filed an affidavit of 43 pages with no reference to an explanation for the delay or the topic of bankruptcy, together with two bound books of documents, including what purported to be an affidavit annexing 12 pages of largely incomprehensible complaints about the trial before Judge Millsteed. On 26 October 2015, the applicant filed a booklet of 29 pages entitled “Appeal Book Submission.” On 30 October 2015 the application was heard by Peek J. His Honour reserved judgment.
Held (dismissing the application):
1. Any appeal instituted by Supreme Court Action 1293 of 2010 is to be taken to have been discontinued and has lapsed pursuant to Rule 296(2).
2. There is an unacceptable failure to explain the delay in the prosecution of the appeal against the orders of Judge Millsteed.
3. There is an unacceptable failure to explain the delay in the prosecution of the proposed appeals against the orders of the two District Court Masters. The judgment of Judge Herriman refusing an extension of time within which these proposed appeals could be lodged was undoubtedly correct.
4. The prospects of success on any appeal from the judgment of Judge Herriman would be virtually nil.
5. The prospects of success on any appeal from the judgment of Judge Millsteed would be extremely low.
6. The orders sought are not necessary for the proper conduct of the proceeding nor are otherwise in the interests of justice.
Bankruptcy Act 1966 (Cth) ss 60, 60(2), 60(4); Supreme Court Civil Rules 2006 Rule 117(1), 117(2), 296(2), referred to.
Russell v Polites Princes Group of Companies & Ors [2009] SADC 73; Russell v Polites Investments Pty Ltd [2011] SADC 30; House v The King (1936) 55 CLR 499; Mac Audio & Acoustical Consultants Pty Ltd v Eddy [1999] SASC 443; Adelaide Bank Ltd v Lucke [2010] SASC 59, considered.
RUSSELL v POLITES INVESTMENTS PTY LTD
[2015] SASC 181Application to a single Judge: Civil
PEEK J.
This application purports to be an interlocutory application brought by Mr Douglas Russell (Mr Russell) in Supreme Court Action 1293 of 2010. In effect, he applies for an order that “the appeal of 1293 of 2010 which has been unheard due to bankruptcy … now be listed for hearing in the Full Supreme Court”.
The background facts
For the purposes of this application it is necessary to consider in some detail two District Court actions as well as Supreme Court Action 1293 of 2010.
District Court Action 925 of 2003: Russell v Polites Princes Group of Companies & Ors
On 23 June 2003 Mr Russell instituted District Court Action 925 of 2003 against the first defendant, the Polites Princes Group of Companies (“the Polites Group”), the second defendant, Polites Investment Pty Ltd (“PIPL”) and the third defendant, George C Polites (“Mr Polites”). The plaintiff sought damages for personal injury that he claims to have suffered as a result of falling down stairs in premises he leased from PIPL.
District Court Action 925 of 2003 came on for trial before Judge Millsteed on 13 September 2006. At the close of the plaintiff’s case, the defendants submitted that there was no case to answer. The Judge heard full submissions from both sides and reserved judgment. On 8 July 2009 his Honour delivered his ruling that there was no case to answer and published very detailed reasons for that ruling. During the course of the ruling Judge Millsteed made the following observations:[1]
[3] PIPL owned a double storey building situated at 254 Hindley Street, Adelaide, all, or part, of which was leased to the plaintiff. The plaintiff contends that the lease extended to the whole of the building, while the defendants assert that it was confined to the ground floor. It is the plaintiff’s case that on three occasions in October 1999, January 2000 and August 2000 he slipped while descending the stairs and, on each occasion, injured his back. The first two falls are not actionable by virtue of s 36 of the Limitation of Actions Act 1936 having occurred more than three years before the plaintiff commenced this action on 23 June 2003.[2] His claim is therefore limited to the third fall.
[4] The plaintiff is an unrepresented litigant. His pleadings were poorly drafted and a good deal of the evidence and arguments he presented at trial were irrelevant. However, reduced to the essentials the plaintiff’s case is that each defendant is liable in negligence for failing to provide safe stairs for his use as a tenant. The plaintiff’s final Amended Statement of Claim[3] asserts that the stairs were dangerous because they lacked handrails, were “too steep”, and had steps which were “too narrow”. Furthermore, the stairs did not meet “council and Australian building standards”.
…
[8] Before I turn to the evidence it is appropriate to make some observations about the manner in which the plaintiff presented his case. In addition to giving evidence in support of his claim the plaintiff called several witnesses only three of whom I need mention for the purposes of this ruling, namely, Jonathon Crouch (whose lease of the premises was assigned to the plaintiff), Mr Polites (the third defendant) and Mr Peter Murphy (an employee of the Polites Group responsible for leasing rental properties).
[9] The last two mentioned witnesses were called by the plaintiff though he was aware they were adverse to his case and despite having been warned by a Master, upon a pre-trial application, of the risks associated with calling those witnesses and the limitations of examination-in-chief.[4] Despite this warning and by reason of the plaintiff being unrepresented, I took a liberal approach at trial and, at times, allowed him to cross-examine Mr Polites and Mr Murphy. (Emphasis added)
[1] Russell v Polites Princes Group of Companies & Ors [2009] SADC 73.
[2] No application has been made, pursuant to s 48 of the Limitation of Actions Act 1936, for an extension of time within which to institute an action in respect of the first two falls.
[3] Final Amended Statement of Claim dated 28 March 2006 (FDN 23).
[4] see ex tempore orders of Master Rice of 8 September 2006 (Judgment No 111 of 2006).
After very detailed consideration of a large number of issues, the Judge concluded as follows:
[120] I find that PIPL has no case to answer on three grounds:
• First, that PIPL owed the plaintiff a duty of care but did not breach that duty.
• Second, that the plaintiff failed to establish that the alleged third fall was caused by the condition of the stairs.
• Third, that by reason of the exclusion clause PIPL could not be held liable in any event.
[121] Even if I am wrong in relation to those findings, neither the Polites Group nor Mr Polites have a case to answer for the following reasons:
• There is no evidence that the Polites Group is a body corporate capable of being sued in its own name.
• PIPL is a separate legal entity solely accountable for any tortious conduct on its part.
• There is no evidence that either the Polites Group or Mr Polites owed the plaintiff a duty of care separate from the duty owed by PIPL.
• The mere fact that Mr Polites was a director of PIPL does not render him liable for any tortious conduct on the part of the company
Accordingly, the Judge dismissed the plaintiff’s case against each defendant and made orders as to costs.
District Court Action 256 of 2007: Russell v Polites Investments Pty Ltd
Meanwhile, on 19 February 2007, Mr Russell had commenced District Court Action 256 of 2007 entitled Russell v Polites Investments Pty Ltd and therein sought damages for breach of lease, fraud, breaches of the Trade Practices Act, Real Estate and Property Act (sic), Retail and Commercial Leases Act and the Development Act, breach of contract and for ‘wrongful eviction and other wrongs’. The damages sought were said to comprise return of rents and amounts paid to the defendants during the tenancy and consequential damages in a claimed amount of $1,255,755.
I adopt the following chronological summary of events relating to District Court Action 256 of 2007 compiled by Judge Herriman (as from February 2007):[5]
[5] Russell v Polites Investments Pty Ltd [2011] SADC 30.
7.3.2An Amended Statement of Claim was filed in October 2007 (FDN 3). In that document the appellant asserted:
32. The plaintiff wishes to pursue the claims 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 point of a conspiracy to wrongfully charge rent to the disadvantaged plaintiff with complete and total disregards to the state statures [Fair Tradings Act 1987] and [Consolidated Act]] [Retail and Commercial Leases Act] [Development Act] [Real Estate Trading Act] and [the laws of State] [the law of negligence] [company law] [criminal law] [local government] and [contract and property law]
[sic]
He then 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’.
7.3.3On 25 February 2008 the defendants applied to have that Amended Statement of Claim struck out on the grounds that it did not comply with the Rules, that it did not disclose a reasonable cause of action, that it purported to raise matters which had been judicially determined by His Honour Judge Millsteed, that it was vexatious and embarrassing and that it constituted an abuse of process.
The defendants also sought an order that the appellant provide security for their costs of and incidental to the action.
7.3.4On 24 October 2008 Master Bampton ordered that the Amended Statement of Claim be struck out. In her reasons, the learned Master noted that there was no pleading supporting the introduction of parties other than the second defendant in the action (being the respondent herein) and she accordingly dismissed the claims against the first and third defendants. She observed:
I am also of the view the pleading against the second defendant is in many instances irrelevant and incomprehensible …
I am conscious that the plaintiff does not have the benefit of legal assistance. Making allowance for this, the claim put forward by the plaintiff is difficult to distil and comprehend. The amended statement of claim does not comply with the Rules as to pleading and is an abuse of process of the court. This is a clear and obvious case where the court should exercise its discretion and strike out the amended statement of claim pursuant to 6R 104.
The plaintiff must set out his pleading in clear, comprehensible language so that the defendant and the court can understand what he says establishes his cause of action and why he says he is entitled to the relief he seeks …
I strike out the amended statement of claim and give the plaintiff a final opportunity to replead his claim against the second defendant only. The plaintiff must not replead the matters pertaining to the claim for damages for personal injury that is the subject of the proceedings before Judge Millsteed. The plaintiff must take heed of my comments regarding the deficiencies in the amended statement of claim I have struck out.
The plaintiff must also seek an extension of time …
Otherwise, the learned Master adjourned the respondent’s application for security for costs.
7.3.5On 20 November 2008 the appellant filed a Further Amended Statement of Claim (FDN 11) alleging that the respondent had caused him loss and damage by providing him with an incorrect disclosure statement and fraudulently concealing from him the correct Certificate of Title reference and fraudulently increasing his rent, these being matters which had only come to his attention during the trial in Action 925 of 2003.
The document went on:
The PLAINTIFF does claim the following which the Defendants cannot deny
Breach of Lease
Fraud and Fraudulent Concealment
Breach of the Trade practices Act
Breach of the Real Estate and Property Act
Breach of the Retail and Commercial leases Act
Breach of Contract
Breach of the Development ActWrongful Eviction and other Wrongs
Which did resulted in the Plaintiff Loss and Damages from the Property leased by the Defendants wrongly contravening Statutes, Laws, Rules, and Regulations of Commonwealth and State and Council
[sic]
That document appeared to seek damages of the kind identified in his previous Statement of Claim.
7.3.6Subsequently, on 8 July 2009, His Honour Judge Millsteed delivered his decision in Action No. 925 of 2003.
7.3.7On 9 July 2009 Master Bampton heard further argument upon the respondent’s application for security for costs. In the course of doing so she addressed the adequacy of the appellant’s Further Amended Statement of Claim in this action (FDN 11). She observed:
6. Pursuant to my orders 24/10/08, the plaintiff filed and served a further amended statement of claim on 28/11/08. I am concerned that this amended pleading still suffers from the deficiencies I identified in paragraphs 17 of my Reasons for Decision dated 24/10/08. It also appears from the amended pleading the plaintiff still seeks to agitate his eviction from the premises in August 2000 and matters that were the subject of proceedings before Judge Millsteed.
7. Allowing for the fact that the plaintiff does not have legal assistance, I am not satisfied he has pleaded an arguable case against the second defendant in the further amended statement of claim.
8. Accordingly, having regard to the matters set out above I am satisfied it is necessary in the interests of justice to order the plaintiff to provide security for costs pursuant to 6R 194(1)(e).
The learned Master thereupon ordered that the appellant provide the sum of $15,000 by way of security by 14 August 2009 and that in default of such payment the action be stayed.
Those orders are now the subject of Appeal 1.
7.3.8The appellant did not pay into court any sum by way of security and on 21 January 2010 the respondent applied to have the appellant’s action dismissed for want of prosecution.
In response, the appellant filed an application seeking leave to pursue his claim without having to comply with the security order. He advanced no new basis for that application, which effectively sought a review of Master Bampton’s order.
7.3.9Both applications came on for hearing before Master Blumberg on 31 May 2010. He refused to vary Master Bampton’s order and otherwise ordered that the appellant’s claim against the respondent be dismissed for want of prosecution. He also awarded the respondent costs on those applications. An allocatur with respect to those costs was subsequently lodged.
In reasons delivered on 31 May (FDN 25), Master Blumberg commented:
· that the appellant had not sought an extension of time in order to comply with the security order and, accordingly, he lifted the stay of proceedings;
· that he agreed with Master Bampton’s observations with respect to the inadequacy of the Further Amended Statement of Claim (FDN 11);
· that irrespective of any merit, the action ought to be dismissed because the appellant had not, would not and could not provide security and he had freely acknowledged that.
Those orders are now the subject of Appeal 2.
7.4The 2010 Magistrates Court Action
On 15 June 2010 the appellant instituted further proceedings against the respondent in the Adelaide Magistrates Court which prima facie sought to re-agitate the relief sought in this action.
On 10 August 2010 that claim was dismissed on the footing that it amounted to an abuse of process.
The judgment of Judge Herriman in District Court Action 256 of 2007
On 18 October 2010, long out of time, Mr Russell lodged within District Court Action 256 of 2007, an appeal (‘Appeal 1’) against the decision of District Court Master Bampton made on 9 July 2009, accompanied by an application seeking an extension of time for its institution.
On 18 October 2010 Mr Russell also lodged, within District Court Action 256 of 2007, a second appeal (‘Appeal 2’) against an order of District Court Master Blumberg made on 31 May 2010. That notice of appeal was also lodged long out of time and was also accompanied by an application for an extension of time for its institution.
On 20 October 2010, Mr Russell also filed in District Court Action 256 of 2007 an interlocutory application seeking to set aside the allocatur filed by the second defendant (the respondent) consequent upon a costs order made by Master Blumberg at the hearing on 31 May 2010.
The two appeals against District Court Masters Bampton and Blumberg, together with the interlocutory application, all came on for hearing before District Court Judge Herriman on 15 December 2010.
On 20 December 2010, Mr Russell became bankrupt.
On 23 March 2011, Judge Herriman delivered judgment on the two appeals referred to as Appeal 1 and Appeal 2. Rather than attempt to summarise his Honour’s judgment I will reproduce the relevant portion in extenso. His Honour stated:
Appeal 1
[7] In dealing with Appeal 1, I will first consider the application for an extension of time. The court may, pursuant to DCR 295(1)(a), extend the time for instituting an appeal but that discretion is vested for the sole purpose of doing justice between the parties Gallo v Dawson[6]. In considering any extension application the court will have regard to the length of the delay, the reasons for it, whether the proposed appeal raises an arguable case and whether the grant of an extension will result in prejudice to the respondent (Collins v South Australia[7]). Here the appellant relies on the following matters:
[6] (1990) 93 ALR 479.
[7] [2000] SASC 62.
(1) the fact he was unrepresented on the hearing before Master Bampton;
(2) the disadvantage said to flow from his injuries when he fell down the stairs;
(3) that he awaited the judgment of Master Blumberg and the second Magistrates Court proceedings before lodging it.
[8] Further to those grounds, when addressing me the appellant asserted that he was not aware that he had to appeal against that order, that he thought he could go back and plead his case and that he was not aware that Master Bampton had stayed proceedings.
[9] As to his claims that he was unrepresented and not alert to the necessity or availability of an appeal, I am not persuaded they support the grant of an extension because:
(1) self-representation cannot, of itself, afford a ground and in any event in the multiplicity of proceedings that have been instituted, the appellant has displayed a level of sensitivity to and awareness of court rules and, indeed, of his liberty to bring applications and appeal court orders;
(2) pages 15-19 of the transcript of the hearing of 9 July 2009 disclose that the appellant was made well aware of Master Bampton’s orders and indeed he engaged in discussion with the court about them. He was specifically informed by the learned Master that he had 21 days to appeal her order and he acknowledged that advice.
[10] As to his claimed disadvantage from the work accident, there was no evidence or argument advanced as to how that explained his delay and I am not disposed to treat this as affording a ground for extension.
[11] As to his claim that he awaited the judgment of Master Blumberg, that cannot hold water as, of course, the application that led to the hearing before that Master was not filed until six months after Master Bampton’s decision of 9 July 2009 and the hearing itself took place on 31 May 2010.
[12] There is no satisfactory explanation for the delay between July 2009 and January 2010 in instituting the appeal. If anything, the respondent’s application of January 2010 ought to have excited the appellant’s interest in seeking an extension of time to provide security or otherwise commencing an appeal, yet it did not.
[13] As to the assertion that the appellant awaited the result of the 2010 Magistrates Court action, that is nonsensical. The action was not even commenced until June 2010 and it was disposed of on 10 August.
[14] For whatever relevance it has, the appellant’s claim that he was not aware that the action had been stayed is not credible either. He cannot but have been aware that nothing had occurred to progress the action between the stay order of 9 July 2009 and the decision of Master Blumberg of 31 May 2010. Further to that, page 15 of the transcript of the hearing on 9 July 2009 discloses that he actually then requested a stay rather than face a strike-out.
[15] The appellant has advanced no cogent explanation for the delay between 9 July 2009 and 18 October 2010 in instituting an appeal against Master Bampton’s order and, indeed, there can be none.
[16] It has been a lengthy delay and for reasons I will touch upon, there is no demonstrated merit in the appeal anyway. To refuse an extension of time will not result in a miscarriage of justice.
[17] Otherwise, I am satisfied that to grant an extension of time would, in the particular circumstances, prejudice the respondent, particularly in the face of the appellant’s persistent allegations of fraud made against it.
[18] For all these reasons, the application to extend the time for lodgement of an appeal against Master Bampton’s order is refused.
[19] I have considered the merits of the appeal anyway.
[20] The appellant first raises his impecuniosity as a ground. I am not minded to regard it as a valid ground in the circumstances. It is not said to have resulted from the respondent’s actions, it is a matter which was plainly considered by the learned Master in conjunction with her assessment of the merits of the action and nothing has been put to me to suggest she incorrectly applied principles, erred in fact-finding, failed to properly consider and weigh all relevant matters or that there is any other reason why her finding should be disturbed. She properly found that the appellant had not satisfied the court that he had any arguable claim.
[21] Otherwise, before me the appellant sought yet again to challenge the validity of the lease concluded with the respondent and to assert he was misled over its contents and that the document was falsely altered by the respondent after it was executed. As I have said, those particular allegations were the subject of evidence in the personal injury claim and findings were made rejecting the appellant’s contentions. To the extent those contentions have any relevance on the appeal, they have thus been finally determined against the appellant anyway and he is estopped from again raising them (Blair v Curran,[8] Port of Melbourne Authority v Anshun Pty Ltd[9]).
[8] (1939) 62 CLR 464.
[9] [1980] VR 321.
[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.
[23] Had the appeal otherwise been brought in time it would in any event have been dismissed by me.
Appeal 2
[24] The second appeal was again substantially out of time. The orders appealed against were made on 31 May 2010 and the appeal was lodged on 18 October 2010.
[25] The appellant, in seeking an extension of time for it, again relied upon grounds that he was unrepresented and disadvantaged because of his injuries and otherwise that he had awaited the outcome of the 2010 Magistrates Court proceedings.
[26] For the same reasons expressed above, I am not persuaded the first two of these matters justify the grant of an extension.
[27] Otherwise, I note that the 2010 Magistrates Court action was not commenced until after Master Blumberg’s decision and was, in any event, concluded on 10 August 2010, some two months before lodgement of the Notice of Appeal. As noted above, it constituted yet another attempt by the appellant to agitate some matters already determined in the personal injury claim and could never have afforded any excuse or reason for delaying the institution of this appeal.
[28] Again the delay has been a substantial one. No cogent reason has been advanced for it. For reasons expressed below, no arguable ground of appeal has been raised. The justice of the case does not justify the grant of an extension and to otherwise grant it would, in the particular circumstances of this case, result in prejudice to the respondent.
[29] For these reasons I refuse the application to extend the time for an appeal against the decision of Master Blumberg of 31 May 2010.
[30] I will also deal with the merits of that appeal, although it is not strictly necessary. Again I am obliged to say that it is devoid of merit.
[31] In the first place, the appellant raises impecuniosity and consequent unfairness. I have dealt with that question in discussing Appeal 1 and the same observations apply to this appeal. Otherwise, the appellant sought yet again to argue in support of his appeal the invalidity of findings made by Judge Millsteed – as indeed he argued before Master Blumberg. He may not do so.
[32] He advanced no other cogent ground of appeal.
[33] I should add that notwithstanding the fact that the appellant sought to re-agitate all issues before Master Blumberg, the real question for the Learned Master was whether the action ought to be dismissed for want of prosecution because the appellant would not and could not provide the security ordered. In that respect, the appellant frankly conceded that he had not attempted to and could not provide that security. I do not find it necessary to discuss in any detail the authorities upon which Master Blumberg based his finding, other than to say that it appears to me he took account of all relevant matters, correctly directed himself as to the law and properly exercised his discretion in acceding to the respondent’s application that the proceedings be dismissed for want of prosecution.
[34] Further, for the same reasons expressed above, I am satisfied that this appeal, too, 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.
[37] Extension of time for the lodgement of each appeal is refused, each appeal is dismissed and it must follow that with respect to Appeal 2, the appellant’s interlocutory application to set aside the allocatur filed by the respondent pursuant to the order of Master Blumberg made on 31 May 2010 must also be dismissed.
The purported appeal to the Full Court of the Supreme Court in Supreme Court Action 1293 of 2010
A notice of appeal to the Full Court against the judgment and orders of Judge Millsteed in District Court Action 925 of 2003 was filed in Supreme Court Action 1293 of 2010 on 21 September 2010.
What may have been intended by Mr Russell to be a separate notice of appeal against the judgment of Judge Herriman (in the quite different District Court Action 256 of 2007) was later filed on 5 April 2011 in the same Supreme Court Action 1293 of 2010.
In any event, no appeal was set down within six months and, pursuant to Rule 296(2), any appeal is taken to have been discontinued and lapses.
The hearing before Stanley J on 28 August 2015 in Supreme Court Action 1293 of 2010
On 12 August 2015, Mr Russell filed an interlocutory application in Supreme Court Action 1293 of 2010 and sought the following order or direction:
Do seek from the Court permission of the Court for the appeal of 1293 of 2010 which has been unheard due to bankruptcy, the applicant seeks it may now be listed for hearing in the Full Supreme Court.
The application came on for hearing before Stanley J on 28 August 2015. During that hearing his Honour stated to Mr Russell:[10]
[10] T6-7.
HIS HONOUR: This application will require an affidavit, an affidavit that sets out the material you rely upon.
MR RUSSELL: So I need to put in an affidavit to say I did what I did?
HIS HONOUR: No, I don’t require an affidavit of service. What I will require is that there be an affidavit filed that sets out the material you rely upon for why this appeal should be reinstated.
MR RUSSELL: Right.
HIS HONOUR: So you have to explain why it is that the appeal didn’t proceed back in 2010.
MR RUSSELL: Right. That book that –
HIS HONOUR: And explaining the delay in seeking to have this appeal heard.
MR RUSSELL: That’s a long affidavit.
HIS HONOUR: Well, I don’t how long that affidavit will be, Mr Russell, but you’ll have to explain. You’ll have to explain the basis of the application in an affidavit.
…
MR RUSSELL: Do you want the exhibits with it?
HIS HONOUR: Yes.
MR RUSSELL: No worries.
HIS HONOUR: Now you tell me how long you need to prepare such an affidavit.
MR RUSSELL: Four weeks I’d say. Can you request the – since I believe I had it and it’s pretty important and I would have thought it would be critical this, I thought this was really just a technical matter not relisting the appeal. That was –
HIS HONOUR: It won’t necessarily be a technical matter if it’s opposed by the respondent.
MR RUSSELL: Yes.
HIS HONOUR: If there’s no opposition then it may be a technical matter. If it’s opposed it’s a different matter.
MR RUSSELL: Mr Livesey is making money out of this thing. I’m paying for it in bankruptcies.
HIS HONOUR: Mr Russell, I’ll give you four weeks to file an affidavit in support of the application.
MR RUSSELL: …
HIS HONOUR: Now in that four weeks you’ll have to file it and then serve it and then I’ll adjourn the matter then to a further chambers list in about six weeks time.
Stanley J made the following orders in the presence of Mr Russell:
HIS HONOUR:
1. The applicant, that’s you, is to file and serve an affidavit in support of the interlocutory application filed in this matter on 12 August 2015 by the close of business on 25 September 2015.
2. I adjourn further consideration of the interlocutory application to the chambers list on 9 October 2015.
MR RUSSELL: No worries.
ADJOURNED 10.25 A.M.
Events subsequent to 28 August 2015
On 7 October 2015 Mr Russell swore an affidavit which was filed in Action 1293 of 2010 on 8 October 2015. This consists of 43 paragraphs of rambling and largely incomprehensible complaints about the judgment of Judge Millsteed in District Court Action 925 of 2003. There is no reference to the matter of an explanation for delay or the topic of bankruptcy at all.
However, the above affidavit was apparently filed at the Registry on 8 October 2015 at the same time that Mr Russell lodged with Registry two bound books of documents entitled “DCR Affidavit & 21 Exhibits”. The first of the two books contains at the beginning what purports to be an affidavit sworn by Mr Russell before a Justice of the Peace on 28 September 2015 and annexing 12 pages, again, of rambling and largely incomprehensible complaints about the judgment of Judge Millsteed in District Court Action 925 of 2003. At page 8, there is a section entitled “The question of time”. The content is almost entirely irrelevant for present purposes but it contains the following passage:
8-4 Then enabling Polites with the Costs of that said application, and assisted by the known breach of the Court Rules in the reveiw of Master Bampton by the Master Blumberg who did further breach the Master’s jurisdiction in the Order of instead of a preliminary Order which wrong did cause the immediate Allocatur of $43,997. thus preventing the costs being appealed with Master Blumberg to Judge Herriman which did cause the Federal Sequestration Order by Registrar Christie 20 /12/ 2010 and the 5 year wait to return to the appeals who the appellant feels the Court has continually assisted the defendants unfairly at the appellant detriment (Exhibits 21 22 23 24)
8-5 The District Clerk and Deputy who were continually delaying and have caused my initial in time applications after being lodged and without noting the time of lodging and did withhold up for weeks and would return the application with some issue but then was needed to be resubmitted which did stop the 07-256 Masters appeals and allowing the wrongs of the Security bond wrongs and costs of the Master Blumberg This be also the case in the 03-925 appeal while providing misinformation with deliberately misleading of the appellant with wrong information and assisting in the premature bankruptcy of the appellant which is a continuing issue in the process ( Exhibit 25 )
The rest of the contents of these two books is taken up with various documents said to relate to complaints concerning the trial before Judge Millsteed.
Finally, and more recently, on 26 October 2015, Mr Russell filed in the present Supreme Court Action 1293 of 2010 another separate booklet of 29 pages entitled “Appeal Book Submission.” Pages 6 to 28 inclusive purport to be addressed to a substantive appeal and largely consists of assertions of fact and various assorted allegations by Mr Russell of a scandalous nature against various persons including judicial officers.
However, of note, the final page, page 29 is of a different nature. It somewhat resembles an affidavit sworn on affirmation but it is unwitnessed. The phraseology employed is “do say and can swear or affirm …”. Page 29 appears thus:
IN THE SUPREME COURT
APPEAL BOOK SUBMISSION
of Appellant Douglas C. Russell
For the Full Supreme Court Appeal of
Action No SCCIV 15-925 10-1293
Respondants Polites Investment Pty Ltd
Mr George C. Polites
Polites Group of Companies
THE APPEAL BOOK SUBMISSION AFFIRMATION
I THE APPELLANT DOUGLAS CHARLES RUSSELL WHO IS A DISABLED PENSIONER OF 6/21 FREDRICK STREET ADELAIDE DO SAY AND CAN SWEAR OR AFFIRM, THAT ALL THE ABOVE SUBMISSION OF 25 PAGES, IS TO BEST OF MY KNOWLEDGE IS ALL TRUE AND CORRECT;
SIGNED BY THE APPELLANT [Mr Russell’s signature]
Dougkas Charles Russell
Pages 1 to 5 of that booklet bear the subheading “Reasons for a request of an Extension of Time” but largely consist of sundry allegations against judicial officers and Registry staff. The only passage of present relevance is the following:
Against the Rules of Supreme Court of South Australia and proper process The District Court Master Blumberg did in that immediate Costs Order as it was an abuse of process, of a $41,977.55 Costs Order as was put on the Allocatur Order made, and on the Polites Petition that did cause the fast tracking of the process and that did cause the following Federal Courts Sequestration Order on 20/12/10 that did wrongly prevent a unrepresented Appellant from the pursuing all or any of the Appeals of the District Court of South Australia matters that are now before the Full Supreme Court
Finally, I add that Mr Russell asserted on the hearing of the present application that he was discharged from bankruptcy on 13 July 2015.
From the above material, one may derive that Mr Russell’s position is that he was made bankrupt on 20 December 2010, was not discharged until 13 July 2015, and that he has somehow thereby been prevented by that bankruptcy from attending to the prosecution of the Full Court appeal or appeals. When considering that position I will assume in his favour that those two dates are correct.
Section 60 of the Bankruptcy Act 1966 (Cth)
Importantly, it is to be noted that while s 60(2) of the Bankruptcy Act 1966 (Cth) (Bankruptcy Act) does stay certain actions upon bankruptcy, it is subject to important and obvious exceptions in s 60(4). Section 60 relevantly provides:
Stay of legal proceedings
…
(2)An action commenced by a person who subsequently becomes a bankrupt is, upon his or her becoming a bankrupt, stayed until the trustee makes election, in writing, to prosecute or discontinue the action.
(3)If the trustee does not make such an election within 28 days after notice of the action is served upon him or her by a defendant or other party to the action, he or she shall be deemed to have abandoned the action.
(4)Notwithstanding anything contained in this section, a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of:
(a) any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family; or
(b) the death of his or her spouse or de facto partner or of a member of his or her family.
…
…
(5)In this section, action means any civil proceeding, whether at law or in equity.
(Original emphasis)
There is no doubt that District Court Action 925 of 2003 in which the plaintiff sought damages for personal injury that he claims to have suffered as a result of falling down stairs in premises he leased from PIPL is within s 60(4) and accordingly was never stayed by Mr Russell’s bankruptcy. It is to be noted that by far the majority of the attention and complaints of Mr Russell is directed to this action heard by Judge Millsteed rather than to the later Action 256 of 2007 heard by Judge Herriman. There is a complete failure to explain the delay in the prosecution of the appeal against the orders of Judge Millsteed.
It is also important to note that the two applications for extensions of time within which to appeal against the decisions of Master Bampton and Master Blumberg which were heard by Judge Herriman were dismissed by him on the basis that the extensive delay in making those applications was completely unexplained. That extensive delay is still unexplained.
Any appeal to the Full Court against the orders made by Judge Herriman would engage the requirements of House v The King[11] since the subject of the appeal would be the Master’s exercise of his discretion to refuse to grant an extension of time. Unless there is established error, the Full Court would not be entitled to substitute its own discretion in lieu of that of the Judge.[12] The Court would have to consider whether the Judge considered all relevant facts, and no immaterial facts, whether the learned Master erred in law or principle, or whether the decision is so extreme that such an error should be inferred.[13]
[11] (1936) 55 CLR 499.
[12] Mac Audio & Acoustical Consultants Pty Ltd v Eddy [1999] SASC 443.
[13] Adelaide Bank Ltd v Lucke [2010] SASC 59.
Having regard to the application of that test to the judgment of Judge Herriman by reference to the facts and evidence before him, I consider that the prospects of success on any appeal from his judgment would be virtually nil.
Although the judgment of Judge Millsteed was not of this discretionary type, I consider that the prospects of success on any appeal from his judgment would be extremely low.
Conclusion
The applicant, Mr Russell, seeks to engage the provisions of Supreme Court Rule 117(2) which enables the Court to (inter alia) dispense with compliance with a rule or extend a time limit, even though the time limit has already expired.
However, Rule 117(1) provides that the Court may only make such an order if it considers it necessary “for the proper conduct of the proceeding or is otherwise in the interests of justice”. It is for the applicant to satisfy the Court that the making of an order sought is necessary for the proper conduct of the proceeding or is otherwise in the interests of justice.
As referred to above, Stanley J required Mr Russell to file an affidavit addressed to these matters. Mr Russell has failed to properly comply with that requirement and has not given a satisfactory reason for that failure.
I have been required to spend a good deal of time considering various aspects of District Court Action 925 of 2003, District Court Action 256 of 2007 and Supreme Court Action 1293 of 2010. Having done so, I have come to the clear conclusion that I am unsatisfied that the orders sought are necessary for the proper conduct of the proceeding or are otherwise in the interests of justice.
I would echo the wise words of Judge Herriman in his judgment reproduced above: “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.” That risk is accentuated by Mr Russell’s conduct since 23 March 2011, the date of Judge Herriman’s judgment.
This application will be dismissed.
Orders
1The application is dismissed.
2The Court declares that any appeal instituted by Supreme Court Action 1293 of 2010 is to be taken to have been discontinued and has lapsed.
3
6
1