Russell v Polites Investments Pty Ltd - [2011] SADC 30

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
RUSSELL v POLITES INVESTMENTS P/L
[2011] SADC 30
Judgment of His Honour Judge Herriman
23 March 2011
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - EXTENSION OF TIME FOR APPEAL
Appeals from separate orders of Masters that the plaintiff provide security for costs and subsequently that in default of that provision the action be struck out. Both appeals instituted out of time and extensions of time sought.
Lengthy delays in bringing appeals, no good explanation for them, no proper grounds advanced in support of applications for extension of time nor any arguable grounds of appeal in either case and obvious prejudice to the respondent. Extension application refused in each case and appeals dismissed.
DCR 295(1)(a), referred to.
Gallo v Dawson (1990) 93 ALR 479; Collins v South Australia [2000] SASC 62; Blair v Curran (1939) 62 CLR 464; Port of Melbourne Authority v Anshun Pty Ltd [1980] VR 321, applied.

RUSSELL v POLITES INVESTMENTS P/L
[2011] SADC 30

This matter came on for hearing before me on 15 December 2010 and comprised two appeals from orders of Masters and, as well, an interlocutory application:
(1)The first appeal (‘Appeal 1’) was against orders of Master Bampton dated 9 July 2009 whereby the learned Master directed the plaintiff to pay into court by 14 August 2009, by way of security for costs, the sum of $15,000 and, in default of payment, ordered that the action be stayed until further order. The relevant notice of appeal was filed on 18 October 2010 and, as it was well out of time, it was accompanied by an application seeking an extension of time for its institution.
(2)The second appeal (‘Appeal 2’) was against an order of Master Blumberg made on 31 May 2010 wherein the learned Master lifted that stay of execution, which had by then come into effect, and then dismissed the plaintiff’s claim for want of prosecution. That notice of appeal was lodged on 18 October 2010 and in consequence was also accompanied by an application for an extension of time for its institution.
(3)An interlocutory application was later filed on 20 October 2010 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. That application could only be entertained were the appellant to succeed with Appeal 2, so I will defer further consideration of it for the moment.
As to Appeal 1, the grounds of appeal are expressed in the following terms:
Judgement Order appealed against ; To provide a Security of $15,000 Deposit to the Court
The Appeal is against the Judgement Order To provide Security Cost of $15,000
The Appealant seeks a extension of time within which to Appeal upon the following grounds ;
The Appealant who is unrepresented who has been disadvantaged by being permanently injured from falling down stairs in the property of Polites Investments wrongly leased to the Plaintiff against Councils directions awaited the Judgement of Master Blumberg and Magistrate Milazzo AMMCCI 10-3036 prior to first lodging a Appeals at the Registry wrongly in July August September 2010
The grounds of the Appeal are ;
1 The Order of Master Bampton to provide Security Costs to the Disadvantaged unrepresented Plaintiff who has based his Claim on the Facts of the Action is to
Appealant a dangerous precident to disallow a Trial of the Action due to Finacial predicament of the Victim
[sic]
As to Appeal 2, the grounds of appeal are:
Judgement Order appealed against ; To provide a Security of $15,000 Deposit to the Court
The Appeal is against the Judgement Order Dismissal for want of a Security Cost of $15,000
The Appealant seeks a extension of time within which to Appeal upon the following grounds ;
The Appealant who is unrepresented who has been disadvantaged by being permanently injured from falling down stairs in the property of Polites Investments wrongly leased to the Plaintiff against Councils directions awaited the Judgement of Magistrate Milazzo AMMCCI 10-3036 July August September 2010 prior to first in lodging a Appeal at the Registry wrongly
The grounds of the Appeal are
The Order of Master Blumberg to Dismiss the Action being based of the Order of Master Bampton for the Plaintiff to provide Security Costs to the Disadvantaged unrepresented Plaintiff who has based his Claim on the Facts of the Action is to Appealant a dangerous precident to disallow a Trial of the Action due to Finacial predicament of the Victim
[sic]
The same grounds are thus advanced in support of each application for extension of time except that it is not asserted as to Appeal 2 that the appellant then awaited the judgment of Master Blumberg.
Before dealing with each appeal and application for extension of time, it is helpful if I traverse some of the background to these proceedings:
1.The respondent was at material times the registered proprietor of adjoining premises situated at 254-258 Hindley Street, Adelaide. The premises at No. 254 comprised a two-storey building with an enclosed backyard. Its ground floor contained two adjoining rooms and a staircase leading to the upper floor, which itself contained two rooms, albeit smaller ones, situated over the front ground floor room and a lean-to structure above the rear ground floor room. By all accounts, the stairs were worn and slippery and it is evident that the Adelaide City Council had imposed restrictions on the use of the premises limiting it to use of the ground floor and for commercial purposes only.
2.Parties known as Crouch and Jacobs entered into a lease agreement with the respondent in 1996 in respect of No. 254 and the plan attached to that document and purporting to identify the demised area showed an outline of the ground floor rooms but without any markings or reference to the staircase and upper floor. In proceedings before Judge Millsteed in this Court (No. 925 of 2003) and which are referred to below, His Honour found as a fact that that lease was in respect of the ground floor area only. Those lessees proposed to conduct there, the business of an art gallery.
3.In 1999 Crouch and Jacobs, with the consent of the respondent, assigned their interest in the lease to the appellant and he then occupied the premises until August 2000.
4.Prior to executing the Deed of Assignment, all of the parties to it signed ‘Assignment Instructions’, which provided that the premises were to be used as an ‘Art Gallery/Studio’. They were not to be used for residential purposes. Those instructions did not themselves make it plain that the leased area was to be confined to the ground floor but the respondent realised this before the assignment was executed and, indeed, on the day the parties attended to execute it, through its servant Mr Murphy the respondent informed them that the leased area comprised the ground floor only. Murphy then amended the assignment instructions document in their presence by writing the words ‘Ground Floor’ against the description ‘The Premises’.
The appellant has consistently denied that that occurred, either to his knowledge or in his presence, and has contended that those words were later fraudulently added to the document by the respondent. That factual dispute was adjudicated in the court proceedings I have referred to and His Honour Judge Millsteed then found in the respondent’s favour, necessarily rejecting the appellant’s account of things. The appellant has remained profoundly dissatisfied with that finding.
5.The appellant was evicted from the premises on 29 August 2000 for asserted breaches of the lease, in particular that he had sought to use them as a residence and, further, that he had brought onto them and stored a substantial quantity of building materials, contrary to council regulations.
6.The appellant has asserted that on three occasions whilst he remained a lessee of the premises, he slipped while descending stairs to the ground floor, on each occasion injuring his back.
7.He has then instituted a number of court proceedings, which can be summarised as follows:
7.1The 2000 Magistrates Court Action
In August 2000, the appellant sought relief against forfeiture resulting from his eviction from the premises. The action was listed for hearing on 30 August 2000 but on that day the appellant withdrew it.
7.2The Personal Injury Claim
In June 2003 the appellant instituted the proceedings in this Court in Action No. 925 of 2003 (‘the personal injury claim’) against the respondent and other parties, seeking damages for personal injuries allegedly suffered in the three alleged falls on the stairway.
On 8 July 2009 His Honour Judge Millsteed dismissed the appellant’s claims against each of the defendants, finding in particular that the only defendant which owed any duty of care to the appellant was the respondent, as landlord of the premises, and that it had not breached that duty.
That judgment was not the subject of any appeal.
7.3The Present Action
7.3.1These proceedings were commenced on 19 February 2007 (FDN 1) and in them the appellant has sought damages from the same defendants 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 comprise return of rents and amounts paid to the defendants during the tenancy and consequential damages in an amount of $1,255,755.
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 Act
Wrongful 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.
I turn then to each of the separate appeals.
Appeal 1
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[1]. 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[2]). Here the appellant relies on the following matters:
(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.
[1] (1990) 93 ALR 479
[2] [2000] SASC 62
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.
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.
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.
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.

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.
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.
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.
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.
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.
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.
For all these reasons, the application to extend the time for lodgement of an appeal against Master Bampton’s order is refused.
I have considered the merits of the appeal anyway.
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.
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[3]; Port of Melbourne Authority v Anshun Pty Ltd[4]).
[3] (1939) 62 CLR 464
[4] [1980] VR 321
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.
Had the appeal otherwise been brought in time it would in any event have been dismissed by me.
Appeal 2
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.
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.
For the same reasons expressed above, I am not persuaded the first two of these matters justify the grant of an extension.
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.
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.
For these reasons I refuse the application to extend the time for an appeal against the decision of Master Blumberg of 31 May 2010.
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.
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.
He advanced no other cogent ground of appeal.
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.
Further, for the same reasons expressed above, I am satisfied that this appeal, too, is frivolous, vexatious and an abuse of court process.
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.
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.
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.