Appellant v First Respondent

2 In the proceeding before me this morning, Mr Karam seeks an order quashing an order of the Magistrates' Court made on 17 April 2013 refusing Mr Karam's application for a review of a decision made by a Judicial Registrar of the Magistrates' Court on 26 February 2013.

3 It is now necessary to set out the sorry history of the Magistrates' Court proceeding and the present proceeding.

4 The Magistrates' Court proceeding was commenced on 9 August 2011. However, Mr Karam failed to file a notice of defence within the period stipulated by the Magistrates' Court General Civil Procedure Rules 2010, and judgment was entered against him on 18 January 2012.

5 On 30 January 2012, Mr Karam filed and served an application to set aside the default judgment. On 13 April 2012, Magistrate Braun set aside the default judgment and ordered Mr Karam to file and serve a notice of defence within 40 days.

6 On 23 May 2012, the time for Mr Karam to file and serve a notice of defence expired. No notice of defence was filed and served.

7 Notwithstanding the absence of a notice of defence, on 6 June 2012, Mr Karam filed and served an application to strike out the solicitors' claim. The application was made 'on the basis that [the solicitors] did not have a proper basis to issue proceedings against [Mr Karam]'. This application was heard before Braun M on 20 June 2012. The application was dismissed and Mr Karam was ordered to pay costs.

8 On 5 July 2012, default judgment was once again entered against Mr Karam. On 9 July 2012, Mr Karam filed an application seeking to set aside the second default judgment. On 8 August 2012, Magistrate English ordered the second default judgment set aside. Mr Karam was again given 40 days within which to file and serve a notice of defence.

9 Mr Karam filed and served a notice of defence on 3 September 2012. Subsequently, the Magistrates' Court proceeding was listed for hearing on 23 April 2013.

10 However, on 24 January 2013, Mr Karam filed and served a second application seeking to strike out the solicitors' claim. This application was heard by Judicial Registrar Johnston on 26 February 2013. On that date, Judicial Registrar Johnston dismissed Mr Karam's application, and ordered Mr Karam to pay costs in the sum of $1,075.

11 On 22 March 2013, Mr Karam filed and served an application to review the decision of the Judicial Registrar. On 17 April 2013, this application was refused by Magistrate Popovic. At this point in time, the trial of the Magistrates' Court proceeding was scheduled to be heard a mere six days later, on 23 April 2013.

12 Rather than seeking to defend the merits of the solicitors' claim at trial, on 19 April 2013, Mr Karam commenced the present proceeding seeking judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 'for an order in the nature of certiorari for setting aside the order of [Popovic M] dated 17 April 2013'. In substance, Mr Karam seeks the opportunity to make a further application for summary judgment and/or to have summary judgment entered in his favour in the Magistrates' Court proceeding.

13 The first return date of the present proceeding was 16 May 2013. On that day, the proceeding was adjourned on the application of Mr Karam. Mr Karam's application was based upon medical grounds. In his own words, Mr Karam sought to have the proceeding adjourned 'to a date to be determined after I treat my eyes in which has hindered me (sic) to represent my proceeding (sic) and prevented me to attend any hearing due to the blackout of [my] eye and difficulty to read and the resultant stress and inability to concentrate'.

14 On 27 June 2013, Mr Karam again sought and obtained an adjournment on medical grounds. On that day, the proceeding was adjourned to 4 September 2013.

15 On 4 September 2013, the proceeding came on for hearing before Derham AsJ. On that day, his Honour ordered the solicitors to file and serve any application to dismiss the proceeding under s 63 of the Civil Procedure Act 2010 by 4 October 2013. The directions hearing in the proceeding was then adjourned to 16 October 2013.

16 On 16 October 2013, the proceeding came on for hearing again. On that day the proceeding was again adjourned (this time to 27 November 2013), and an order was made that any application by the solicitors to dismiss the proceeding had to be filed and served by 20 November 2013.

17 On 25 November 2013 (and notwithstanding the terms of the order of 16 October 2013), the matter again returned to court. Again the matter was adjourned - this time to 12 February 2014 - and again the solicitors were ordered to file and serve any application to dismiss the proceeding under s 63 of the Civil Procedure Act - this time by 1 February 2014 (paragraph 2 of the orders of 25 November 2013).

18 On the same day (25 November 2013) Mr Karam filed a 'notice of advice' in which he said:

Take notice that the applicant is unable to attend the hearing on 27 November 2013 due to the need for surgery to his blind eye which was scheduled to be on 11 December 2013 ... to 12 February 2014 will be at substantial help (sic) for the applicant to be able to have his eye surgery and recover.

19 On 31 January 2014, the solicitors filed an application seeking to have the proceeding struck out and/or dismissed pursuant to r 23.02 of the Supreme Court (General Civil Procedure) Rules 2005 and/or s 63 of the Civil Procedure Act.

20 On 5 February 2014, Mr Karam filed a notice of appeal against paragraph 2 of the orders made on 25 November 2013. On the following day (6 February 2014), Mr Karam issued a summons seeking, amongst other orders, to vacate the hearing date on 12 February 2014.

21 On 12 February 2014, an associate judge referred the solicitors' application for summary judgment and Mr Karam's appeal against the order of 25 November 2013 to the Practice Court.

22 On 28 February 2014, the matter came on for hearing in the Practice Court. On that day, the solicitors were represented - but there was no appearance for Mr Karam. On that day, the Court fixed the trial of the proceeding (including the solicitors' application for summary judgment and Mr Karam's appeal from the order of Derham AsJ) for hearing on 19 March 2014. Compliance with Practice Note No 4 of 2009 was ordered to be dispensed with, and each party was ordered to file and serve by 4 pm 12 March 2014 any material and any submissions they intended to rely upon at the hearing.

23 Subsequently, Mr Karam was given notice of the orders made on 28 February 2014. On 12 March 2014, Mr Karam filed and served a further 'notice of advice' which provided:

Take notice that the appellant will not be able to attend the hearing on 19 March 2014 due to the need to move to my new place of living as I have been given notice to vacate my usual place of living as the attached notice provided, when all my documents had been packed and need to time to unpacked (sic) and sorting them out.

Therefore, I am seeking to adjourn the above proceeding until I arrange my new place of living in a way enabling me to prepare for the hearing.

I will advice (scil advise) the court as soon as I move and settled (sic) down in the new place.

24 Mr Karam's notice of advice had attached to it a notice addressed to him and dated 7 February 2014, requiring him to vacate his rented premises 'on 11 April 2014' (some three weeks after today's trial date).

25 This morning there was no appearance for any party. The position of the Magistrates' Court of Victoria has always been that it will abide the decision of this Court save as to costs. The position of the solicitors now appears to be that they too are content to abide the decision of the Court. That, of course, does not leave Mr Karam in a position where he is entitled to an unopposed judgment or judgment in default of appearance. No order should be made quashing any decision made in the Magistrates' Court unless a relevant ground for judicial review is made out.

26 While Mr Karam did not appear this morning, it would appear from his communications with the Court,[1] that he would like this proceeding to be adjourned yet again. However, this is the trial of the proceeding and a further adjournment of the proceeding would only add to the already disproportionate amount that has been incurred in costs in the prosecution, defence and conduct of this proceeding. A stark feature of the present litigation is that it appears to be being conducted by Mr Karam in complete disregard of the overarching obligations referred to in the Civil Procedure Act 2010, and in particular the obligation referred to in s 24 to use reasonable endeavours to ensure that legal costs are reasonable and proportionate to the complexity of the issues in dispute and the amount in dispute.

27 Further, and in any event, the present proceeding is completely without merit. There was no basis upon which Mr Karam was entitled to summary judgment against the solicitors in the Magistrates' Court proceeding. Braun M was plainly correct when he refused Mr Karam's first application for summary judgment. Judicial Registrar Johnston was plainly correct when he refused Mr Karam's second application for summary judgment. And, with respect, Popovic M was plainly correct when she refused Mr Karam's application for review of Judicial Registrar Johnston's decision.

28 At no time during the protracted interlocutory skirmishes in this proceeding has Mr Karam ever identified a basis upon which he might conceivably obtain judicial review of any of the interlocutory orders and decisions made in the Magistrates' Court proceeding. Further, there has been no want of procedural fairness to Mr Karam in the Magistrates' Court proceeding; no jurisdictional error has been identified; and no error of law has been identified that has any prospects of being established. The proceeding is, and has been, a gross waste of scarce public resources.[2] Put shortly, this must stop.[3] Even if the parties (and by that I mean Mr Karam and the solicitors) are not investing any further resources in the proceeding, the Court must ensure that its resources do not continue to be wasted.

29 There being no basis for quashing any of the decisions made in the Magistrates' Court proceeding, Mr Karam's proceeding for judicial review must be dismissed.

[1] The appropriateness or otherwise of which need not be debated here.

[2] Akram Karam v Palmone Shoes Pty Ltd & Anor [2012] HCASL 148, [4].

[3] See further, Karam v Aloe & Co Pty Ltd [2014] HCASL 44.