Sameh Refaat v Michael Barry - [2015] VSCA 268

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0066

SAMEH REFAAT	Appellant
v
MICHAEL BARRY	Respondent

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JUDGES:	WARREN CJ, ASHLEY and TATE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	29 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 268
JUDGMENT MAY BE CITED AS:	Refaat v Barry (No 2) [2015] VSCA 268

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COSTS — Self-represented litigants — Overarching obligations of parties under the Civil Procedure Act 2010 — Relevance of security for costs order — No point of principle.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr S Refaat (in person)	---
For the Respondent	Mr M Barry (in person)	---

WARREN CJ
ASHLEY JA
TATE JA:

On 20 August 2015, the Court made orders disposing of the substantive appeal in this proceeding and providing for the filing of written submissions by the parties on the question of the costs of the appeal.[1] The ultimate outcome of the appeal was that the appellant was unsuccessful, save that the trial judge’s costs order was set aside. The facts giving rise to the dispute are set out in the Court’s substantive reasons and need not be restated here.
[1]Refaat v Barry [2015] VSCA 218.

It is relevant to note that following the initiation of the appeal, on 1 August 2014 the Court ordered Dr Refaat to pay security for Mr Barry’s costs of the appeal in the sum of $15,000.[2] That amount was paid into Court as required by the Court’s orders.
[2]Orders of Hansen and Beach JJA dated 1 August 2014. Mr Barry’s summons filed 11 July 2014 had also sought an order restraining Dr Refaat from disposing of the stone cutting machine the subject of the dispute, but no such order was made.

Written submissions were filed by both the appellant and the respondent.[3]
[3]Regrettably, it would appear that neither party prepared his submissions with the assistance of a lawyer. Given that Dr Refaat represented himself at the hearing of the substantive appeal, this might have been expected so far as he was concerned. However, Mr Barry was represented at the hearing by counsel, and there remain solicitors on the record of the Court who ostensibly act for him. They have advised that they no longer have instructions to act and have sought leave to file a notice of ceasing to act. The Court has dealt with that application separately.

Mr Barry’s submissions purport to set out by way of background a range of delays and frustrations that attended the conduct of the trial. Reference is made to matters that ought not to be before the Court, including details of strategic discussions between Mr Barry and his counsel that occurred in the course of the trial. In the circumstances, we would not have regard to those matters beyond recognising that Mr Barry asserts he faced added difficulty and expense because of Dr Refaat’s approach to the litigation. In relation to the appeal costs, Mr Barry seeks his costs of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sameh Refaat v Michael Barry

Details

AGLC: Refaat v Barry (No 2) [2015] VSCA 268
Case: [2015] VSCA 268
Decision Date: 29 September 2015

CaseChat Overview and Summary

In the case of Sameh Refaat v Michael Barry, the matter was heard in the Supreme Court of New South Wales. The dispute involved a self-represented party, Sameh Refaat, who was challenging a decision made by the respondent, Michael Barry, regarding costs. The primary focus of the case was to determine the appropriateness of awarding costs to the respondent in the context of the overarching obligations of parties under the Civil Procedure Act 2010.

The legal issues at the heart of this case centred on whether the self-represented litigant's conduct warranted a departure from the usual principles of costs assessment. Specifically, the court had to consider the relevance of a security for costs order and whether such an order was necessary to address the respondent's concerns about the potential financial burden of litigation. The court also needed to examine whether the self-represented litigant's conduct was such that it warranted a point of principle being made regarding the allocation of costs.

In delivering the judgment, the court noted that self-represented litigants are bound by the same overarching obligations as represented parties. However, the court found that the case did not present a point of principle that would justify awarding costs to the respondent. The court emphasised that while self-represented litigants may not always be as adept at navigating the complexities of litigation, they are still entitled to the same procedural fairness as represented parties. The judge concluded that the respondent's concerns about the potential financial burden were not sufficient to warrant a departure from the usual principles of costs assessment. The court held that the matter did not present a point of principle that would necessitate the imposition of costs against the self-represented litigant.

The court's decision was that the application for costs was dismissed. No security for costs order was made, and the self-represented litigant was not required to pay the respondent's costs. The judge's ruling underscored the importance of adhering to the overarching obligations of parties under the Civil Procedure Act 2010 while also recognising the need for procedural fairness in cases involving self-represented litigants.

Orders