Karam v Palmone Shoes Pty Ltd [2010] VSCA 252

Court of Appeal (Vic)|2010-09-29|Before: Forrest J, Mr J, Brennan CJ, Mandie JA, Harper JA

[2010] VSC 3 (T Forrest J)

PRACTICE AND PROCEDURE - Appeal - Application by former solicitor for appellant to appear as amicus curiae - Application refused.

2 The background to this application, as appears from the costs judgment below,[1] is that Aloe had initially been instructed by Mr Karam in early July 2009 and Mr Karam had signed a costs agreement which was a 'no win no fee' type of agreement with Mr Karam accepting liability for all necessary and proper disbursements. The costs agreement related to the asthma case and not to the cancer case. On about 22 September 2009 Mr Karam terminated the services of Aloe and Lennon Mazzeo took over the conduct of Mr Karam's cases. The trial was about to commence and in circumstances which are not necessary to detail here Lennon Mazzeo's retainer and the retainer of counsel then acting were all terminated by Mr Karam. Shortly after 20 November 2009 Mr Karam re-engaged Aloe and new counsel were engaged to appear at trial The trial commenced on 30 November 2009 and concluded on 11 December 2009. At some point thereafter Aloe's retainer was again terminated by Mr Karam and by the time the issue of costs came to be heard he was representing himself. On the question of costs, orders were made below, inter alia, giving Aloe a charge over certain moneys recovered by Mr Karam in the asthma case. It is a reasonable presumption, expressly confirmed by Mr Aloe in his submissions, that Aloe has a pecuniary interest in Mr Karam succeeding on his appeal. It was not and could not be suggested that Aloe had any legal interest directly or indirectly affected by Mr Karam's appeal.

3 The Court has, in its inherent jurisdiction, a discretion to allow a person to appear as amicus curiae. In Levy v Victoria,[2] Brennan CJ referred to the basis of granting leave to a non-party to intervene in a case as being based on that person's legal interests being affected by the case either directly, or indirectly such as where their legal interests might be affected as a result of the doctrine of precedent. His Honour stressed that the question remained a discretionary one even where the non-party's legal interests were affected in some way. His Honour went on to what is more relevant to the present application, namely the position of an amicus curiae, and he said:[3]

The hearing of an amicus curiae is entirely in the Court's discretion. That discretion is exercised on a different basis from that which governs the allowance of intervention. The footing on which an amicus curiae is heard is that that person is willing to offer the Court a submission on law or relevant fact which will assist the Court in a way which the Court would not otherwise have been assisted.

4 Brennan CJ went on to refer to a case in which the Court had refused counsel's application to appear for a person as amicus curiae[4] in which it was said that counsel had failed to show that the parties whose cause he would support were unable or unwilling adequately to protect their own interests or to assist the Court in arriving at the correct determination of the case and that:[5]

The Court must be cautious in considering applications to be heard by persons who would be amicus curiae lest the efficient operation of the Court be prejudiced. Where the Court has parties before it who are willing and able to provide adequate assistance to the Court it is inappropriate to grant the application.

5 In Levy v Victoria, Brennan CJ went on to say:[6]

It is not possible to identify in advance the situations in which the Court will be assisted by submissions that will not or may not be presented by one of the parties nor to identify the requisite capacities of an amicus who is willing to offer assistance. All that can be said is that an amicus will be heard when the Court is of the opinion that it will be significantly assisted thereby, provided that any cost to the parties or any delay consequent on agreeing to hear the amicus is not disproportionate to the assistance that is expected.

6 In an earlier consideration of the position of an amicus curiae, a strong Full Federal Court (Davies, Wilcox and Gummow JJ)[7] said:

As a court exercises a judicial, not an administrative function, its task is to determine disputes that are brought before it by parties who appear before it, adduce evidence and make submissions. Nevertheless, a court has an inherent or implied power, exercised occasionally, to ensure that it is properly informed of matters which it ought to take into account in reaching its decision. ... if it considers it in the interests of justice to do so, the court may hear an amicus curiae or friend of the court.[8]

...

The general principle is that the parties are entitled to carry on their litigation free from the interference of persons who are strangers to the litigation. But there is an overriding right of the court to see that justice is done. An amicus may be heard if good cause is shown for doing so and if the court thinks it proper.[9]

7 In another case, at the trial level, Wilcox J said:[10]

In Australia, as distinct from the position in the United States, the intervention of an amicus curiae is a relatively rare event; the amicus' role normally being confined to assisting the court in its task of resolving the issues tendered by the parties by drawing attention to some aspect of the case which might otherwise be overlooked. I do not dispute that it may sometimes be appropriate to allow an amicus curiae to complete the evidentiary mosaic by tendering an item of non-controversial evidence; although I would prefer to reserve my opinion whether this should be permitted to be done over the objection of one or more of the parties. But it is another matter where the proposed evidence would be complex and controversial. To allow the tender of that type of evidence may be to allow the amicus curiae effectively to hijack the parties' case, taking it off into new factual issues which may greatly extend its length and thereby imposed significant additional costs and disadvantages upon the parties. Rarely, if ever, should this course be permitted.

8 Of course, this case is an appeal and not a trial and 'the facts being closed, hijacking is less likely'.[11] Nevertheless the above observations by Wilcox J still have some resonance in a situation where a non-party seeks leave to lead fresh evidence over the objection of the appellant and where that very evidence is available to be relied upon by the appellant himself, if he so wishes (and if the Court so permits).

9 In an affidavit in support of this application, Mr Aloe deposed to his belief that Mr Karam was unable to properly engage in the proceedings without assistance. He deposed that, if leave was granted, Aloe wished the Court to consider a number of grounds of appeal, including that the appellant was denied procedural fairness in the manner of the admission into evidence of the report of Noel Arnold & Associates of a simulation test conducted in December 2007 which relevantly related to the level of benzene in the appellant's breathing space. Other proposed grounds of appeal attacked numerous fact findings of the trial judge but the main emphasis was upon the admission of the Arnold report. Mr Aloe's affidavit exhibited a large volume of documents including new expert reports. There was also an affidavit of Brian Eva sworn 1 September 2010 exhibiting a further new expert report - Mr Eva is an occupational hygienist. There was also an affidavit of Michael John Beale sworn 30 August 2010 exhibiting other expert reports by him. Mr Beale is also an occupational hygienist.

10 A further affidavit sworn by Mr Aloe on 10 September 2010 explained why a further report from Mr Eva had been obtained and also sought to advance a lengthy scientific argument attacking the Arnold report and advancing evidentiary matters relevant to the issues at trial. This was accompanied by another affidavit from Mr Eva sworn 13 September 2010 exhibiting another report by him seeking to attack the Arnold report and to advance numerous scientific contentions.

11 Of course, none of the expert material sought to be advanced by Aloe has been tested nor has the author of the Arnold report had an opportunity to respond to it.

12 It is important to state that the evidence constituted by the Arnold report which essentially related to the issue of the amount of benzene that would have been in Mr Karam's 'breathing space' was accepted by the trial judge and formed an important element in his ultimate factual finding that he was not satisfied that Mr Karam had established on the balance of probabilities that there was a causal link between the benzene that Mr Karam inhaled while carrying out his employment duties and his contracting multiple myeloma.

13 In oral submissions, Mr Aloe essentially repeated arguments which were contained in his written material. Mr Aloe submitted that the Court had power to grant Aloe leave to appear as amicus curiae and accepted that it was a matter for the Court's discretion and depended upon a showing that Aloe could provide significant assistance to the Court on issues arising in the appeal.

14 Although it was apparent, from his written submissions, that Mr Karam did not have a great knowledge of the law, including the law of evidence, it was also apparent that he had a reasonably good understanding of the factual issues involved in his appeal. It did not appear to us that he lacked adequate capacity to advance his complaints about the trial process or to argue that there were factual errors in the judgment below. The questions on appeal appeared to be essentially factual and not of substantial legal complexity.

15 By the same token, Mr Aloe did not contend that he was particularly able to, or wished to, assist the Court on matters of law. Rather he contended that he was well placed to make submissions on the medical or scientific matters that were the subject of evidence at the trial and to provide significant assistance to the Court in that respect. However it seemed inevitable that the Court had to determine on the appeal whether or not there were any grounds for a re-trial and it did not appear to us that Aloe could provide any general assistance to the Court on that question that would otherwise be lacking. Mr Karam might not have had the capacity, despite his engineering qualifications, to advance a sophisticated medical or scientific argument but the Court was not in any event in a position to have the whole question re-litigated before it or to undertake an assessment of the merits of the Arnold report as Aloe, it seemed, wished the Court to do.

16 Furthermore, we formed the view, having regard to Mr Aloe's mode of argumentation and his demeanour before us, that not only was he unlikely to be of significant assistance to the Court but that his presence would be counter-productive. We formed that view without taking into account the highly emotional reaction of Mr Karam to Mr Aloe's attempt to 'intrude' upon his appeal as Mr Karam perceived it. That is not to say that Mr Karam's objection to Aloe appearing as amicus curiae was not a matter to be taken into account and we did take it into account.

17 In addition, we considered that the additional evidentiary material obtained by Aloe was available to Mr Karam if he wished to attempt to utilise it but we did not think that it should be forced upon him if he did not wish to do so. By saying that we do not suggest that any attempt to use the material would be successful.

18 Mr Karam is entitled to conduct his appeal as he sees fit within the limits of the appeal process. His emphatic wish that his former solicitors should not be permitted to participate on his behalf was in our view to be respected unless the Court was persuaded that Aloe's assistance was essential or so important to the administration of justice that Mr Karam's wishes should be overridden. We were not so persuaded.

19 For all of the foregoing reasons, the application by Aloe for leave to appear as amicus curiae was dismissed (with costs reserved).

[1] Karam v Palmone Shoes Pty Ltd (No 2) [2010] VSC 82.

[4] Kruger v The Commonwealth, (Unreported_,_ 12 February 1996), transcript p 12.

[5] Kruger v The Commonwealth, (Unreported_,_ 12 February 1996), transcript p 12.

[7] United States Tobacco Company v Minister for Consumer Affairs [1988] FCA 213; (1988) 20 FCR 520, 533-538.

[10] Bropho v Tickner [1993] FCA 25; (1993) 40 FCR 165, 172-3.

[11] See Re Boulton; Ex parte State of Victoria (1994) 126 ALR 620, 627 (Industrial Relations Court of Australia: Wilcox CJ, Keely and Ryan JJ).

At a glance

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Judgment (38 paragraphs)

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Cases Cited (4)