Karam v Palmone Shoes & Anor [2014] VSCA 148

Court of Appeal (Vic)|2014-06-03|Before: Forrest J, Nettle JA

[2010] VSC 82 (T Forrest J) [Proceeding 0031]

[2010] VSC 82 (T Forrest J) [Proceeding 0032]

ACCIDENT COMPENSATION - Costs - Proceedings for damages for personal injury arising out of or in course of employment - Worker contracting asthma and later myeloma in course of or arising out of employment - First proceeding for damages, in respect of asthma, instituted pursuant to s 134AB of Accident Compensation Act 1985 ('the Act') - Second proceeding for damages, in respect of myeloma, instituted pursuant to s 135BA of Act - Order that both proceedings be tried at same time - Whether s 134AB(28) applied to asthma proceeding notwithstanding myeloma proceeding exempt from operation of s 134AB(28) by reason of s 135BA(2) - Whether order for trial of both proceedings together affected merger of two proceedings - Cameron v McBain [1948] VicLawRp 41; [1948] VLR 245; Bolwell Fibreglass Pty Ltd v Foley [1984] VR 9, referred to - Accident Compensation Act 1985, ss 134AB(28) and 135BA(12).

APPEAL - Judgments and orders - Fraud - Applications to set aside final and summary judgments on grounds of alleged fraud - Applications procedurally incompetent and unsupported by cogent evidence of fraud - Hip Foong Hong v H Neotia & Co [1918] UKPC 65; [1918] AC 888; McCann v Parsons [1954] HCA 70; (1954) 93 CLR 418 referred to; McDonald v McDonald [1965] HCA 45; (1965) 113 CLR 529, Wentworth v Rogers (1986) 6 NSWLR 534, applied.

PRACTICE AND PROCEDURE - Adjournment - Multiple interlocutory applications for orders that appeals and substantive applications be heard individually on different days and further or alternatively for further adjournment of hearing - Further applications to review decision of Registrar to refuse adjournments and other accommodation -Proceedings old and unnecessarily complex - Long history of adjournments and other accommodation granted to applicant - Whether any utility in granting further adjournment or other accommodation - Inconvenience to court and costs to other parties - Aon Risk Services Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175, referred to.

1 There are before the Court today an appeal and several applications by the appellant, Akram Karam ('Mr Karam'). Although they range over a number of proceedings, they are all related in one way or another. It is convenient to deal with them in turn.

2 In brief substance, the appeal and each of the applications arise out of Mr Karam's dissatisfaction with the outcome of two earlier proceedings for the recovery of damages for personal injuries which he alleged he suffered as a result of inhaling benzene while employed in a shoe factory conducted by the first respondent ('Palmone Shoes').

3 Mr Karam was born on 25 January 1959 and was employed in the Palmone Shoes Factory as a shoe maker between 6 November 2002 and 22 February 2006. Throughout the course of that employment, he was exposed to various chemical solvents used in the manufacture of the shoes - in particular PA 5000 Adhesive, NE 1821 Black Neoprene and Halo Primer - which to some extent were constituted of benzene. As a result, Mr Karam developed asthma (and a psychological reaction to it) and he ceased work in February 2006. He has not worked since.

4 Pursuant to s 82 of the Accident Compensation Act 1985 ('the Act'), Mr Karam applied for statutory compensation payments in respect of his asthma, and the Victorian WorkCover Authority ('VWA') accepted that the asthma was an injury arising out of or in the course of Mr Karam's employment. Thus, between February 2006 and September 2008, Mr Karam was paid weekly compensation payments on account of his asthma.

5 On 8 January 2008, the degree of Mr Karam's permanent impairment resulting from his asthma was assessed pursuant to s 104B of the Act as 30 per cent or more, and so deemed to be a serious injury pursuant to s 134AB(15) of the Act. On 1 April 2008, Mr Karam instituted a County Court proceeding pursuant s 134AB of the Act for damages for personal injury in respect of his asthma ('the asthma proceeding').

6 Meanwhile, on 18 February 2008, Mr Karam was diagnosed as also suffering from an abdominal tumour and, during May 2008, diagnostic investigations revealed that it was a malignant tumour of plasma cytoma/multiple myeloma cancer ('myeloma'). On 6 June 2008, he lodged a claim pursuant to s 86 of the Act for weekly compensation in respect of the myeloma.

7 On 28 July 2008, Palmone Shoes' WorkCover insurer ('Allianz') rejected the claim for weekly compensation in respect of the myeloma. It contended that Mr Karam's employment was not a significant contributing factor to the myeloma; to the extent that his incapacity for work was contributed to by the myeloma, it was not materially contributed to by an injury that entitled him to compensation; and the medical and other expenses he claimed in respect of the myeloma were not the result of an injury which entitled him to compensation.

8 On 10 December 2008, Mr Karam instituted a proceeding in the Magistrates' Court ('the Magistrates' Court proceeding') for determination of his claim for weekly compensation in respect of the myeloma. That claim remains to be heard and determined.

9 After the asthma proceeding had been listed for trial in the County Court to commence on 14 August 2009, and the Magistrates' Court proceeding had been listed for hearing in the Magistrates' Court on 10 June 2009, Mr Karam appointed Aloe & Co as his solicitors.

10 Evidently, Mr Karam's state of health was then considered to be particularly problematic. Consequently, in order to avoid the delays associated with compliance with s 134AB, in July 2009, Aloe & Co applied on Mr Karam's behalf for leave to amend the asthma proceeding to include a claim for damages for the myeloma. Judge Holt, however, refused the application on the basis that it was not permitted under the Act. Therefore, on 7 September 2009, Aloe & Co filed an application in the Supreme Court on behalf of Mr Karam for leave, pursuant to s 135BA of the Act, to institute a proceeding for damages for the myeloma ('the cancer proceeding') without need of compliance with the requirements of ss 134AB(1)-(21) and (27), (28) and (38).

11 For reasons which are not altogether clear, at or about that time, Mr Karam became dissatisfied with Aloe & Co and, on 30 September 2009, he appointed Lennon Mazzeo, solicitors, in their place.

12 Days later, on 2 October 2009, Mr Karam was granted leave to institute the cancer proceeding pursuant to s 135BA. Later it was ordered that the asthma proceeding be removed to the Supreme Court and heard and determined at the same time and before the same judge as the cancer proceeding.[1] At much the same time, the hearing of the Magistrates' Court proceeding was put over until after the hearing and determination of the cancer proceeding.

13 Following some unsuccessful attempts to settle the proceedings by mediation, on 30 November 2009 the asthma proceeding and the cancer proceeding came on for hearing before T Forrest J in the Common Law Division. The trial continued thereafter until 11 December 2009 and the judge reserved his decision. On 18 January 2010, his Honour handed down his decision in which he upheld the asthma claim and he awarded Mr Karam damages on that claim of $196,315. His Honour, however, rejected the cancer claim on the basis that he was not persuaded that Mr Karam's exposure to benzene in the Palmone Shoes factory was a cause of the myeloma.

14 In a separate judgment published on 23 February 2010, the judge further concluded that, because the asthma proceeding had been instituted on the basis of a serious injury certificate granted pursuant to s 134AB(16)(a) of the Act, it engaged the operation of s134AB(28) and, because the judgment sum was less than 90 per cent of Mr Karam's statutory counter offer, his Honour was bound by s 134AB (28)(d) to order that each party bear their own costs of the asthma proceeding. In contrast, in the case of the cancer proceeding, his Honour held that s 135BA(2)(a) precluded the application of s 134AB(28), with the result that it was appropriate to order (in accordance with the usual practice that costs follow the event) that Mr Karam pay Palmone Shoes' costs of the cancer proceeding.

15 On 1 February 2010, Mr Karam instituted appeals against the substantive orders of T Forrest J. On 14 September 2010, those appeals came on for hearing before Mandie and Harper JJA and Beach JJA. On 29 November 2010 their Honours dismissed each appeal. On 9 February 2011, their Honours Heydon and Bell JJ dismissed an application for special leave to the High Court.

16 On 20 July 2011, Mr Karam instituted a proceeding in the Supreme Court against Aloe & Co, claiming damages for negligence in the conduct of the asthma proceeding and the cancer proceeding ('the Aloe & Co proceeding'). That proceeding was also relatively short lived. On 12 December 2012, Pagone J gave summary judgment for Aloe & Co with costs ('the Pagone J summary judgment').

17 Since then, Mr Karam has instituted a large number of further applications leading up to today. A substantially complete record of those application and their disposition is set out in the table attached to these reasons.

The appeal and applications before this Court

18 The matters before the Court today are as follows:

(1) Appeals by leave against the costs orders made by T Forrest J in the asthma proceeding and the cancer proceeding.[2]

(2) An application by summons filed 17 January 2014 to set aside the judgment in the asthma proceeding,[3] on grounds that it was procured by fraud.

(3) An application by summons filed 17 January 2014 to set aside the judgment in the cancer proceeding,[4] on the grounds that it was procured by fraud.

(4) An application by summons filed 15 April 2014 to set aside the Pagone J summary judgment, on grounds that it was procured by fraud.

(5) An application dated 20 May 2014 for review of a decision of the Registrar made on 29 April 2014 to refuse Mr Karam's application, made by summons dated 28 April 2014, that each of the above matters be heard on different days and such that the costs appeal in relation to the cancer claim be adjourned until after the hearing and determination of the Magistrates' Court proceeding; the costs appeal in relation to the cancer claim be heard and determined only after the hearing and determination of the appeal against the Pagone J summary judgment; and the costs appeal in relation to the cancer claim be heard and determined only after the hearing and determination of the applications to set aside the judgments in the cancer proceeding and the asthma proceeding, on grounds that they were procured by fraud.

I shall deal with the appeal and applications in that order.

The appeal against the costs orders in the asthma proceeding and the cancer proceeding

19 Originally, Mr Karam sought leave to appeal against T Forrest J's costs orders on proposed grounds that the judge erred in treating the asthma proceeding and the cancer proceeding as separate proceedings for the purposes of s 134AB(28) of the Act; the judge erred in making a number of findings of fact; and the legal practitioners who represented Mr Karam in the asthma proceeding and the cancer proceeding were guilty of professional negligence in the way in which they conducted the proceedings.

20 On 16 May 2011, Tate JA and Hargrave AJA held that, apart from the contention the judge was in error in the application of s 134AB(28), all of Mr Karam's proposed grounds were devoid of merit. Their Honours granted leave to appeal on the ground that the judge erred in failing to treat the two proceedings for the purposes of costs as if they were a single 'fused' proceeding to which s 134AB(28) did not apply but refused leave to appeal on all other grounds. Accordingly, the principal question in each appeal is whether the judge erred in treating the two proceedings as separate proceedings for the purposes s 134AB(28).

21 In my view, the judge was right to hold that he was bound by s 134AB (28) in respect of the costs of the asthma proceeding. There is no doubt that s 134AB(28) would have applied if the asthma proceeding had been tried alone. It is also not in issue that the first respondent made a statutory offer of $180,000 and that Mr Karam made a statutory counter offer of $270,000. Consequently, in terms of s 134AB(28)(d), the judgment of $196,315 which Mr Karam obtained in the asthma proceeding was less than 90 per cent of his statutory counter offer. In those circumstances, the costs consequences for which the section provides are that each party must bear their own costs of the asthma proceeding.

22 Mr Karam submitted that the effect of the order that the asthma proceeding and the cancer proceeding be tried together was that the two proceedings were 'indivisibly fused' as one proceeding instituted otherwise than pursuant to the serious injury certificate granted under s 134AB (16)(a), and thus as a proceeding to which s 134AB(28) did not apply.

23 I reject the submission. An order that two proceedings be tried together does not result in the creation of a new proceeding. The two proceedings continue to exist as separate proceedings albeit that, as a matter of convenience, they are heard and determined as one.[5] Moreover, even if the order for trial of the two proceedings at the same time had had the effect of merging the proceedings - and I stress that in my view it did not - it is questionable whether the order would be capable of altering the costs consequences for which the section provides. In such circumstances, although there would be only one proceeding, it may be that a judge would still need to do his or her best to provide for the costs of issues separately. In this case, however, it is unnecessary to decide that question.

24 Possibly, the fact that the two proceedings in this case were tried together, and that some of the evidence and law on which Mr Karam and the respondents relied in relation to the asthma proceeding were common to the cancer proceeding, resulted in the respondents saving part of the costs which they would otherwise have incurred in defending the cancer proceeding. If so, the amount of costs which may be found to be due from Mr Karam to the respondents in respect of the cancer proceeding will be proportionately less than would otherwise have been the case. But that is a matter for taxation and so for the Costs Court to determine; assuming of course that the amount of costs is not otherwise agreed. It does not militate against the statutory imperative of section 134AB(28)(d) that each party must bear their own costs of the asthma proceeding.

25 Counsel for Mr Karam's former solicitors submitted that, because section 135BA(1) refers to 'proceedings' rather than to a 'proceeding', s 135BA(2)(b) should be construed as applying not only to a proceeding that is brought pursuant to s 135BA(2) but also to any other proceeding arising out of the same substratum of facts which may be heard and determined at the same time as the s 135BA(2) proceeding. In counsel's submission, the likelihood of that being so was supported by the fact the requirement of terminal illness for which s 135BA(1) provides may be terminal illness arising otherwise than out of the injury the subject of the s 135BA(2) proceeding. It followed in counsel's submission, that s 135BA(2) operated to exempt not only the asthma proceeding but also the cancer proceeding from the costs consequences for which s 134BA(28)(d) provides.

26 I reject the argument. The words 'the proceedings' refer back to the 'proceedings' mentioned to in s 134AB(12) and, construed in that context, evidently mean proceedings which are brought pursuant to s 135BA(2). That is confirmed by the fact that the dispensation from the costs consequences of s 134AB(28) for which s 135BA(2) provides only applies to proceedings where the worker complies with the requirements of s 135BA. One of the requirements of the section is that, if a worker institutes proceedings under s 135BA, he or she obtain leave to proceed nunc pro tunc under s 135BA(3). In this case, the only leave to proceed obtained under s 135BA(3) related solely to the cancer proceeding.

27 The judge's order that Mr Karam pay the respondent's costs of the cancer proceeding is equally unexceptionable. The usual practice is that a losing party is ordered to pay the winning party's costs of a proceeding. Apart from the question whether the two proceedings should have been treated as one, it does not appear that any of the other circumstances of this case warranted a departure from the usual practice.

28 Possibly, in other circumstances, it would have been open to the judge to conclude that, because the asthma proceeding and the cancer proceeding were so closely bound up with one another, it was appropriate to order that each party bear his or its own costs of the asthma proceeding as well as of the cancer proceeding. But the circumstances of this case did not warrant the adoption of that sort of approach. To the contrary, since the asthma claim proceeded as an assessment only, and hence the bulk of the trial and the great preponderance of expert evidence was devoted to the issue of whether the inhalation of benzene in the workplace was causative of Mr Karam's myeloma, it would have been unfair to deprive Palmone Shoes of its costs of the cancer proceeding.

29 On that basis, I would dismiss the appeals against the costs orders.

The applications to set aside judgment in the asthma and the cancer proceedings on grounds that they were procured by fraud

30 Each of Mr Karam's applications to set aside the judgments in the asthma proceeding and the cancer proceeding is procedurally incompetent. The permissible means of setting aside a judgment on the ground of fraud are either by separate proceeding (once, an equity suit) to set aside the judgment, or by an application by Notice of Appeal[6] to this Court for an order for a new trial on the ground that the judgment was procured by fraud.[7]

31 In addition to that difficulty, which I might be inclined to overlook if it were the only problem, I consider that each application also fails at the outset for want of evidence that the judgment was procured by fraud.[8] The fraud relied upon must be proved with particularity and the proof must be strict and cogent.[9] There is no proof of that kind before us.

32 Mr Karam offered in support of the applications a document filed 13 January 2004 in which are set out a series assertions under the heading 'THE GROU[N]DS THAT THE APPELLANT REL[IES] ON IS THAT THE JUDGMENT HAD BEEN OBTAINED BY FRAUD'. They are as follows:

The defendant's expert witness provided a false evidences and failed to comply with order 44 of the supreme court (general civil procedure) rules 2005 when: [sic]

(1) The defendant's expert witness Professor Richard Fox provided a false statement in support of the defendant's position by relying on untrue fact 'the one cigarette smoking contains benzene similar to the content of benzene in the glue tested, and the cigarette is not associated with multiple myeloma',[10] when the scientific article[11] that he relied on to support his allegations did not support his opinion ...

(2) The defendant's expert witness Professor Richard Fox provided an expert opinion in his report dated 22 May 2009 which is[sic] did not comply with the basis rule ...

(3) The defendant's expert witness Dr G Crank prepared an reliable [sic, presumably, unreliable] report without examining me or arrang[ing] an interview with me ...

(4) The defendant's expert witness of the Occupational Hygienist Mr Paul Addison of Noel Arnold Associate provided unreliable monitoring data of benzene analysis in glues and solvents that [Mr Karam] worked with at the Palmone Shoes Factory, and therefore cannot be relied on as an accurate [reflex] of [Mr Karam's] exposure to benzene during [his] employment with Palmone Shoes when:

(a) Noel Arnold report did not comply with the Analytical Method that had been relied on in the report, in which is recommended by the National Occupational Safety and Health (NIOSH).

(b) Noel Arnold's Report had provided inconsistent results.

(5) The defendant produced unreliable monitoring data of benzene exposure of Noel Arnold & Associates Report when:

(a) The report had not been specifically conducted to assess the benzene concentration in air as a result of the exposure to glues and solvent ...

(b) The report had been conducted in 2007 before the diagnosis of the cancer disease in February 2008.

(c) The report results and samples' numbers had changes to suit the Defendant's position during trial...

(d) Sample number 61595/17 ... did not have a sampling time...

(e) Sample numbers 61595/10, 61595/4 and 61595/16 did not have a sampling time and had not been assigned any activity.

(f) Noel Arnold's report did not take into account any skin contact exposure.

(g) The report Made wrong reference to the exposure standards, for benzene ...

(6) The defendant's expert witness of the Occupational Hygienist Mr Paul Addison of Noel Arnold Associate provided a [sic] false evidence at the cross examination in the Supreme Court trail [sic] when:

His Honour Judge T. Forrest asked Mr Addison whether he had [been] given the Material Safety Data Sheets in respect to the product that Mr Addison analysed at Palmone Shoes Factory on 13 December 2007, and Mr Addison said yes he got them.

But the fact that the Material Safety Data Sheets for the Halo Primer Solvent had not been available by the employer on 13 December 2007, and the fact was that the Halo Primer Solvent's data sheet was issued in 18 January 2008.

Mr Addison made a false statement when stated that I became aware of the benzene in the analysis results that we [sic, were] provided by the test laboratory and external Lab around 19 December 2007, but the fact that the Material Safety Data Sheets for the Halo Primer Solvent did not stated [sic] the benzene as an ingredient which was issued on 18 January 2008.

...

THE LEGAL REPRESENTATIVE LAWYER AT THE TRIAL ALOE & CO PTY Ltd COMMITTED A FRAUD by AT THE TRIAL IN THE SUPREME COURT WHEN:

Failed to conduct a proper solvents and glues analysis ...
Failed to conduct a proper test of the Halo primer solvent during the trial ...

Lawyer Aloe & Co committed a fraud when he failed to file in the Supreme Court on 7 September 2009 the document that I signed on to be included in the application a speedy trial under section 135BA of the Act, and as a result of his serious misconduct, I ceased him[sic] to act in my matters.

Failed to response [sic] to the illegal introduce [sic] of the defendant's report by the industrial hygienist Noel Arnold with a proper industrial hygienist specialist ...
Failed to produce the beneficial analytical test certificate of the solvent and glues when the Plaintiff asked to be produced.
Lawyer Aloe & Co Pty Ltd, admitted to me on 22 May 2013 that the defendant had defrauded my cancer claim at the trial in the Supreme Court common law damages despite Lawyer Aloe was my legal representative at the trial.

33 Some but not all of those allegations are verified on oath in various of Mr Karam's affidavits. None of them, however, is in the form of admissible evidence. Moreover and more critically there is nothing in or about any of them which supports the notion that any of the things which are said to have been done or not done by any of the expert witnesses was done or omitted to be done fraudulently, and nothing to substantiate the allegation that Palmone Shoes was a knowing participant in the alleged fraud. To the contrary, as counsel for Palmone Shoes pointed out, many of the allegations are more or less identical to criticisms of the experts' respective methodologies which were in issue at trial and the subject of extensive cross-examination during the course of trial. There was no suggestion then that any of the experts was acting fraudulently, and there is no more reason now than there was then to suppose that any of them did so.

34 In particular, the complaint about Professor Fox's deployment of the cigarette analogy was the subject of substantial cross-examination, including questions to the effect that the report of the United Kingdom Government Chemist dated 15 September 2009 did not support the analogy. After Professor Fox stoutly rejected that suggestion, it was not pressed again.

35 The complaint that Dr Crank expressed his opinion without first examining Mr Karam is misplaced. Dr Crank was not a medical practitioner but an industrial chemist who was provided with instructions as to Mr Karam's work environment and asked to express an opinion on the basis of his instructions. The judge noted in running that the instructions varied slightly from Mr Karam's evidence. But Mr Karam's counsel did not press that point in closing.

36 The complaint that Mr Addison adopted the wrong analytical method was contradicted by the fact that the expert called on behalf of Mr Karam, Dr Sutcliffe, generally approved of Mr Addison's methodology. It is true that Dr Sutcliffe was of opinion that there were more accurate ways of testing specifically for the presence of benzene (as opposed to testing for volatile organic solvents generally). But Dr Sutcliffe accepted that the benzene results assembled by Mr Addison were 'accurate in ball park figures'. The other criticisms of Mr Addison's evidence were not advanced at trial and there is no more reason now to be concerned about them than there was at the time of trial.

37 It is also to be noted that most of the allegations made in Mr Karam's document of 13 January 2014 are in substance the same as or very similar to allegations which he advanced in support of his appeals against the substantive orders of T Forrest J, which Mandie and Harper JJA and Beach AJA wholly rejected.

38 The complaints concerning Aloe & Co were not in issue in the asthma proceeding or the cancer proceeding. But, in substance, they are the same as allegations which Mr Karam made in the Aloe & Co proceeding which resulted in the Pagone J summary judgment in favour of Aloe & Co. And, although the judgment given in favour of Aloe & Co in the Aloe & Co proceeding does not operate as an issue estoppel against Mr Karam in his claim against Palmone Shoes in this proceeding, it is surely indicative of a high degree of improbability that any of those allegations could succeed. Most importantly, however, even if all of the allegations against Aloe & Co were true, and not foreclosed by the outcomes in earlier appeals, none of them singly or collectively would amount to sufficient basis for setting aside the judgments in the asthma proceeding and the cancer proceeding on the ground of being procured by fraud.

39 In Wentworth v Rogers[12] Kirby P observed that, where a party seeks a new trial on the ground that the judgment below was procured by fraud, that party bears:

... the burden of establishing the components necessary to warrant the drastic step of setting aside a judgment, allegedly affected by fraud or other relevant taint, lies on the party impugning the judgment. It is for that party to establish the fraud and to do so clearly. In summary, he or she must establish that the case is based on newly discovered facts, that the facts are material and such as to make it reasonably probable that the case will succeed, that they go beyond mere allegations of perjury on the part of witnesses at the trial; and that the opposing party who took advantage of the judgment is shown, by admissible evidence, to have been responsible for the fraud in such a way as to render it inequitable that such party should take the benefit of the judgment.

40 In this case, Mr Karam has wholly failed to discharge that burden. On that basis, I would dismiss his applications to set aside the judgments in the asthma proceeding and the cancer proceeding.

The application to set aside the judgment of Pagone J

41 In my view, Mr Karam's application to set aside the Pagone J summary judgment also fails at the outset, if only because a substantially identical application has already been litigated up to the High Court and rejected at every level.

42 By summons dated 19 December 2012, Mr Karam applied to set aside the judgment. That application came on for hearing before Hargrave J on 9 May 2013 and his Honour dismissed it. Mr Karam then applied to this Court by summons dated 23 May 2013 for leave to appeal against Hargrave J's order. That application came on for hearing on 25 July 2013 before Hansen JA and Robson AJA, and their Honours dismissed it. On 14 August 2013, Mr Karam filed application for special leave to the High Court and, on 12 March 2014, their Honours Bell and Gaegler JJ dismissed it.

43 Admittedly, Mr Karam now alleges that the Pagone J summary judgment was procured by fraud, whereas previously Mr Karam put his opposition to the judgment on the basis that it was unlawful. But all of the facts and circumstances on which Mr Karam now relies to sustain his allegations of fraud are in one way or another the same as facts and circumstances on which he has previously relied during the history of this litigation, including before Hansen JA and Robson AJA in this Court on appeal from the decision of Hargrave J, and before Bell and Gaegler JJ in the High Court on application for special leave from the judgment of Hansen JA and Robson AJA, and before Heydon and Bell JJ in the High Court on another of Mr Karam's several applications for special leave to appeal to that court, in that case from orders of this Court rejecting his claims of professional negligence against his former solicitors, Lennon Mazzeo.

44 In view of the history of the litigation, this new application to set aside Pagone J's order is ex facie an abuse of process and, on that basis, I would dismiss it.

The order of determination of the several applications

45 As to Mr Karam's preferred sequence for the hearing and determination of the appeals and applications, and his request for further time to prepare, it is sufficient I think to state the following:

(a) Whatever decision the Magistrates' Court might make in the Magistrates' Court proceeding (as to whether Mr Karam is entitled to statutory compensation for the myeloma) cannot affect the costs orders already made in the asthma claim and the cancer claim. Thus, there is no reason to delay the determination of Mr Karam's appeals from the costs orders until after the hearing and determination of the Magistrates' Court proceeding.

(b) Since Mr Karam's application to set aside the Pagone J summary judgment has already been determined, and the High Court has refused special leave to appeal, the application cannot affect the outcome of Mr Karam's appeals against the costs orders in the asthma proceeding or the cancer proceeding. Thus, there is no reason to delay the hearing and determination of the appeals on account of that application.

(c) If there were any substance in the applications to set aside the judgments in the asthma proceeding and the cancer proceeding, it would be appropriate to deal with those applications before considering the appeals against the costs orders. As I have explained, however, the applications to set aside the judgments are hopeless. Accordingly, it is appropriate to dispose of the appeals against the costs orders now.

(d) I reject Mr Karam's application that his appeals and other applications be dealt with on different days. There is nothing to be gained from that apart from more delay and a further waste of scarce resources. These proceedings are already very old and unnecessarily complex. Mr Karam has been granted numerous adjournments, extensions of time and other accommodation ranging over a period of some four years to enable him to prepare them and present them in the form and manner he has chosen. In view of what he has produced to date, it is unrealistic to suppose that the grant of any more time would enable him to improve his position. Based on the court's experience up to this point, the proportions of which cannot be properly comprehended without close and careful study of the table of applications attached to these reasons, I am satisfied that any further time would serve only to bring forth

yet more applications covering ground that has now been well and truly ploughed without profit several times over, at very considerable inconvenience to the Court and, no doubt, at great expense to the other parties. Consequently, I consider that the time has come to put an end to these proceedings, once and for all, and so to deal with them all today.[13]

(e) Finally, I note that Mr Karam invoked s 24 of the Charter of Human Rights and Responsibilities Act 2006 in support of his contention that the Registrar's decision should be reversed. The thrust of the argument was that the Registrar did not give Mr Karam sufficient time to prepare his submissions to the Registrar as to why the appeals and other applications should be heard on different days. In accordance with the Act, Mr Karam gave notice of his invocation of the Charter to the Attorney-General and the Equal Opportunity and Human Rights Commission. Perhaps unsurprisingly, neither the Attorney nor the Commission deemed it necessary to attend today. For my part, although I am far from persuaded that the Registrar was in error, it is sufficient dispose of the point to say that, whatever time Mr Karam may have had to prepare his submissions to the Registrar, the review of the Registrar's decision proceeds before this Court as a hearing de novo (albeit giving to the Registrar's decision such weight as it warrants), and Mr Karam has had more

46 For these reasons, I would dismiss the appeals and each of the applications.

47 I can agree with the reasons of Nettle JA and the orders he proposes.

49 First, in relation to the appeal concerning the costs orders made by T Forrest J, the attempt to find a way to construe the relevant provisions of the Accident Compensation Act 1985 in such a way as to avoid the operation of s 134AB(28) in relation to the asthma proceeding has to some extent been prompted, or fortified, by the observation made by the trial judge that the outcome in this particular case was unfair. This unfairness was said to result from the fact that at the time of the conclusion of the statutory offer and counteroffer of procedure Mr Karam was not aware of the seriousness of his cancer, and from the fact that that cancer eventually had the effect of significantly reducing the value of his asthma claim.

50 The relevant provisions of the Act, including s 134AB(28), are draconian in the sense that they remove the traditional discretions as to costs which the courts have exercised. One consequence of the strict costs regime provided for by the Act, and the absence of those traditional discretions, is that courts are unable to have regard to circumstances which might arise, or be discovered, after the conclusion of the statutory offer and counteroffer procedure and which significantly affect the assessment of the claim.

51 The potential for that to occur exists in every personal injury case and is not unique to this case.

52 The particular outcome in this case is no more unjust than in any other personal injury case where, by virtue of unforeseen circumstances, the assessment of the claim is significantly altered after the conclusion of the statutory offer and counteroffer procedure. The trial judge's observation as to unfairness needs to be understood in that light. The unfairness is not particular to this case. It arises

because Parliament has determined to impose a strict costs regime on claims of this kind.

53 Secondly, in relation to the application to set aside the Pagone J summary judgment for fraud, in the material filed and relied upon by Mr Karam the substantive complaint is that the summary judgment application was instituted and prosecuted in contravention of s 4.3.2 of the Legal Profession Act 2004. This matter appears in both of the substantive paragraphs (numbered 1 and 2) of his summons dated 14 April 2014, and filed 15 April 2014. It is the first ground set out in the document entitled 'Notice of Appeal' dated 2 May 2014 and appears to be a significant feature of the second and only other ground. Letters and other material relating to this complaint seem to me to be the primary subject matter of Mr Karam's affidavit, sworn 14 April 2014, in support of this application. Section 4.3.2 relevantly provides that a legal practitioner must not commence proceeding in relation the subject matter of a civil dispute between a person and the legal practitioner after receiving notice of a complaint until the complaint is determined or dismissed.

54 There are a number of reasons why Mr Karam's submission of fraud based upon contravention of s 4.3.2 is misconceived but perhaps the most obvious one is that by a letter dated 9 March 2011, on which Mr Karam himself relies in his written material and which he has exhibited to his affidavit in support, his complaint was dismissed by the Legal Services Commissioner under s 4.2.10(e) and (f) of the Legal Profession Practice Act 2004. The proceeding in which the summary judgment was obtained was issued in July 2011 (by Mr Karam not by the legal practitioner), the application for summary judgment was filed in June 2012 and Pagone J's relevant orders were made in December 2012.

55 I agree that the appeal and the application should be dismissed.

56 I would dismiss the appeals and each application for the reasons given by

Nettle JA. I also agree with the observations of Whelan JA.

57 [Discussion ensued as to the form of orders and costs.]

58 Each party has made application for costs of the proceedings to which they are a party and, in some cases, in relation to appeals and applications in which they are interested, but not a party.

59 Having regard to what has been said by counsel, we propose to order that Palmone Shoes should have its costs of the appeals and applications to which it is party. Messrs Aloe & Co should have their costs of the appeal or application for new trial in relation to the Pagone J summary judgment. There should, however, be no order for costs of Lennon Mazzeo; for, although they were interested in the outcome of some aspects of the proceedings, they chose not to become party. Equally, there should be no order for costs in favour of Aloe & Co in relation to any aspect of the matter other than the appeal from the Pagone J summary judgment.

60 Gentlemen, we should be obliged if those orders can be reflected in the draft minute to be submitted.

S APCI 2010 0009 (cancer proceeding) (Supreme Court proceeding S CI 2009 9113)

Notice of Appeal (against orders of Justice Forrest (T) made 18.1.10)

Appeal heard 14.9.10 and dismissed on 29.9.10 (Mandie, Harper JJA and Beach AJA). Appellant to pay costs.

On 11.6.10, leave to adduce fresh evidence adjourned to Court hearing substantive appeals (S APCI 2010 0009 and 0010). (Appeal heard 14.9.10 and dismissed on 29.9.10 (Mandie, Harper JJA and Beach AJA).

Heard 14.9.10 and dismissed on 29.9.10. Aloe & Co to pay respondent's costs of the application for leave to appear amicus curiae.

Application to High Court of Australia for special leave to appeal

S APCI 2010 0010 (asthma proceeding) (Supreme Court proceeding S CI 2009 9226)

Notice of Appeal (against costs orders of Justice Forrest (T) made 18.1.10)

Appeal heard 14.9.10 and dismissed on 29.9.10 (Mandie, Harper JJA and Beach AJA). Appellant to pay costs.

On 11.6.10, leave to adduce fresh evidence adjourned to Court hearing substantive appeals (S APCI 2010 0009 and 0010). (Application and Appeal heard 14.9.10 and dismissed on 29.9.10 (Mandie, Harper JJA and Beach AJA). Appellant to pay costs.

Heard 14.9.10 and dismissed on 29.9.10. Aloe & Co to pay respondent's costs of the application for leave to appear amicus curiae.

Application to High Court of Australia for special leave to appeal

S APCI 2010 0031 (cancer proceeding) (Supreme Court proceeding S CI 2009 9113)

Application for leave to appeal costs orders made by Justice Forrest on 23.2.10.

On 11.6.10, leave to appeal against costs was adjourned to after substantive appeal (S APCI 2010 0009) heard. (Appeal heard 14.9.10 and dismissed on 29.9.10 (Mandie, Harper JJA and Beach AJA)

Leave to appeal granted on 16.5.11. Judges commented that the appeals in this and S APCI 2010 0032 be given expedition. Security for costs dismissed. Not order as to costs.

Application to High Court of Australia for special leave to appeal (M50/11)

Seeking to appeal Tate and Hargrave JJA's orders of 16.5.11 for both appeals. HCA dismissed the application on 8.9.11.

Application for extension of time to serve Notice of Appeal

Application granted on 16.8.12 (leave to appeal granted on 16.5.11). Mr Karam file and serve notice of appeal by 4pm on 30.8.12, and appeal not taken to be abandoned.

S APCI 2010 0032 (asthma proceeding) (Supreme Court proceeding S CI 2009 9226)

Application for leave to appeal costs orders made by Justice Forrest on 23.2.10.

On 11.6.10, leave to appeal against costs was adjourned to after substantive appeal (S APCI 2010 0010) heard. (Appeal heard 14.9.10 and dismissed on 29.9.10 (Mandie, Harper JJA and Beach AJA)

Leave to appeal granted on 16.5.11. Judges commented that the appeals in this and S APCI 2010 0032 be given expedition. Security for costs dismissed. Not order as to costs.

Application to High Court for special leave to appeal (M50/11)

Seeking to appeal Tate and Hargrave JJA's orders of 16.5.11 for both appeals. HCA dismissed the application on 8.9.11.

Application for extension of time to serve Notice of Appeal

Application granted on 16.8.12 (leave to appeal granted on 16.5.11). Mr Karam to file and serve a notice of appeal by 4pm on 30.8.12, and appeal is not taken to be abandoned.

S APCI 2011 0112 (Supreme Court proceeding S CI 2009 01709)

Notice of appeal (against orders of Macaulay J made 20.7.11 dismissing Order 56 review of Magistrate's decision re cancer claim for weekly payments and medical expenses claim). A further Notice of appeal was filed on 16.4.12 and not accepted (against orders of Associate Justice Randall of 27.3.12 to settle the note of proposed contents of appeal book - review of Judicial Registrar's decision)

Appeal dismissed as incompetent on 15.5.12. Mr Karam pay Palmone Shoes' costs of appeal, there be summary judgment for Palmone Shoes, and Mr Karam pay Palmone Shoes' costs of the proceeding.

Application to set aside directions of legal officer (for filing of applications)