Mr Paschalidis, the appellant, has filed a summons seeking leave to appeal from the decision of Magistrate Keady of 9 May 2016. The summons was filed out of time on 13 July 2016. For the reasons that follow I refuse to grant leave to proceed with the appeal out of time because to grant such leave would be futile given the conclusions I have reached about the merits of the appeal.
The proceedings in the Local Court involved two parallel claims by Mr Paschalidis and Mr Shamsizadeh arising out of an oral agreement for the sale of a business at premises in Fairfield. The business had been operated by Mr Paschalidis for a period and was in the nature of a juice shop called "The Juice Stop".
In February 2015, it was agreed that Mr Shamsizadeh was to purchase the business from Mr Paschalidis for a sum of $25,000. Mr Paschalidis asserts that the agreement was for him to vacate the business premises, thus allowing Mr Shamsizadeh to take up his own independent lease with the landlord, as well as to transfer certain equipment to Mr Shamsizadeh. Mr Paschalidis denied he made any representation at all about what goods could be sold at the business premises.
On the other hand, Mr Shamsizadeh asserted that Mr Paschalidis agreed to assign or transfer his lease to Mr Shamsizadeh and that he could "sell everything" from the business premises including ice cream, hot food, coffee, tea, popcorn, confectionary and snacks.
Mr Shamsizadeh began trading from the premises but was advised by a representative of the landlord that he was not permitted to sell chips, chewing gum or coffee from the premises. Mr Shamsizadeh did not want the business on that basis and so returned the keys, restored the business premises, and left.
By this stage, Mr Shamsizadeh had already paid to Mr Paschalidis $15,000, leaving $10,000 outstanding to Mr Paschalidis.
Mr Paschalidis commenced proceedings in the Local Court for the remaining $10,000 due. Mr Shamsizadeh commenced his own Local Court proceedings at the same time, seeking return of the $15,000 he had paid based on an asserted misrepresentation by Mr Paschalidis.
The learned Magistrate, after repeatedly and very appropriately pressing the parties to try to settle the matter given the small sum involved, determined the proceedings in favour of Mr Shamsizadeh on all issues including costs.
Mr Paschalidis does not complain about his Honour's findings, but about certain events that occurred during the hearing which he says meant there was no procedural fairness afforded to him and that a miscarriage of justice resulted. I observe that whilst complaints regarding inadequate or lack of procedural fairness can be errors of law, none of the grounds of appeal are made out and thus none raise an arguable basis upon which it could be said that his Honour Magistrate Keady erred in law.
[2]
The Local Court Proceedings
The Local Court proceedings commenced on 29 March 2016 and were heard over 2 days, 29 March and 4 May. Both the claims arising out of the asserted sale of the business were heard together. In Mr Paschalidis' case, the evidence comprised his own affidavits, oral evidence and cross-examination, as well as affidavits from his wife and mother in law. Neither of those witnesses were cross-examined.
In Mr Shamsizadeh's case, two affidavits sworn by him were tendered, as well as affidavits from three corroborative witnesses, Mr Roshani, Mr Savah, and Mr Hadani. Only Mr Shamsizadeh gave oral evidence and was cross-examined in his case.
There was some brief controversy regarding Mr Hadani's role. It was stated that he had withdrawn an earlier affidavit he had provided for Mr Paschalidis and was instead called in Mr Shamsizadeh's case. The explanation given within the affidavit that was tendered (Exhibit 10 in the Local Court proceedings) was that a lawyer approached him who was acting for Mr Paschalidis and asked him to sign a document that he did not understand, as his English was poor, and the contents of it were wrong.
Mr Hadani was not cross-examined about this, or any other part of his affidavit. It is not known whether that decision was one made forensically or by mistake, however Mr Paschalidis is bound by the decisions and conduct of his legal representative: R v Birks (1990) 19 NSWLR 677.
Another matter of controversy arose at the beginning of Mr Shamsizadeh's case where, during legal argument on objections to Mr Shamsizadeh's affidavit, it was drawn to the attention of counsel for Mr Shamsizadeh that there were a number of men in court, at least one of whom was potentially a witness in the case. As soon as this was drawn to the attention of counsel for Mr Shamsizadeh, the relevant witness was requested to leave court and an apology was given. At that stage, all that had occurred in Mr Shamsizadeh's case was some discussion regarding objections to Mr Shamsizadeh's affidavit as opposed to any extensive legal argument about the content of the affidavit. No witnesses other than Mr Shamsizadeh gave oral evidence.
At the close of the first day of hearing, Mr Shamsizadeh was being cross-examined by the legal representative for Mr Paschalidis. When the matter resumed, the legal representative for Mr Paschalidis stated that she had finished her cross-examination and the matter proceeded to oral submissions and ex tempore judgment.
The transcript provided in the appeal books that were prepared by Mr Shamsizadeh's legal representative (Mr Paschalidis having failed to prepare such an appeal book) did not include the oral submissions. It does not appear however that any submission was made by the legal representative for Mr Paschalidis that there had been procedural or other unfairness in the way the trial had been conducted as it would have had to have been dealt with in the judgment. There is no mention of any such issue or argument.
His Honour concluded that Mr Paschalidis had represented to Mr Shamsizadeh that he could "sell everything" including coffee, chips and chewing gum, and that misrepresentation - made innocently - was material to Mr Shamsizadeh's decision to enter the contract. His Honour also noted that Mr Shamsizadeh's version of events was corroborated by two witnesses that were present at the time of the discussions with Mr Paschalidis and neither witness was requested for cross-examination. It was not put to them that their versions were untrue and his Honour found that he was bound to accept them.
His Honour also found that after information was conveyed to Mr Shamsizadeh by the agent that he was not going to be allowed to sell certain items, Mr Paschalidis further represented that he could influence or bring about a change to this situation and that Mr Shamsizadeh relied on that further assertion as well.
His Honour concluded that as a result of Mr Paschalidis' innocent misrepresentations upon which Mr Shamsizadeh relied, Mr Shamsizadeh was entitled to rescind the contract. Damages were assessed at $15,000. In relation to Mr Paschalidis' claim against Mr Shamsizadeh, his Honour determined that there was to be a verdict for Mr Shamsizadeh. Costs were ordered to be paid by Mr Paschalidis on a party-party basis up to 3 December 2015 and thereafter on an indemnity basis.
[3]
This appeal
The summons commencing the appeal was filed on 13 July 2016 by Mr Paschalidis personally. It is expressed to be an appeal from the "whole of the decision below". In addition to seeking an extension of time for filing the summons, the grounds of appeal relate to matters leading up to and around the conduct of the trial rather than identifying any error of law on the part of the learned Magistrate's assessment of the evidence or his findings.
In summary, the grounds of appeal were expressed to be:
1. That it was an error of law not to direct the courtroom be cleared of witnesses who would hear each other's testimony.
2. The failure to do that led to Mr Paschalidis feeling intimidated.
3. There were verbal threats to Mr Paschalidis and his wife prior to the trial. It was asserted that these threats led to the withdrawal of the affidavit "by one witness for the defendant" and also a potential witness for the defendant.
4. There was an overt campaign of intimidation in the courtroom, including making faces, noises and intimidating gestures.
5. Mr Shamsizadeh appeared to be able to answer questions put without the need for the interpreter that had been provided and that at some points there was discussion between the interpreter and Mr Shamsizadeh rather than translation.
6. The same translator attended court on 9 May and sat with Mr Shamsizadeh and the witnesses in what was described as a "personal capacity" and that the trial judge had erred in law in not taking into account that conduct by Mr Shamsizadeh, his witnesses and the translator when issuing his orders.
There was also complaint that certain fixtures and fittings in the business premises were not returned to Mr Paschalidis, however this is not expressed as a ground of appeal, but appears to be more in the nature of other relief sought.
Uniform Civil Procedure Rules 2005 (NSW) r 50.3 prescribes that a summons commencing an appeal must be filed within 28 days of the date on which the decision is pronounced or given (UCPR r 50.2(1)).
28 days from 9 May 2016 is Monday 6 June 2016. On 6 June 2016, Mr Paschalidis' solicitor filed a notice of intention to appeal in the Court of Appeal. Mr Paschalides says in his affidavit that this was a mistake by his solicitor and that it was not until 27 June 2016 that he "found out" that his solicitor had lodged the appeal in the wrong division of the Supreme Court.
However, nothing in the affidavit explained the delay in commencing the appeal between 9 May and 6 June, nor what was occurring, if anything, between 6 June and 27 June, and between 27 June and 13 July, other than that Mr Paschalidis deposes to being, as at 12 July, "currently self-represented and actively seeking new representation".
Both Mr Paschalidis and counsel for Mr Shamsizadeh confirmed that there had been a stay granted in the Local Court although no evidence regarding that was placed before me.
The legal principles surrounding the discretion to extend time for the filing of a notice of appeal are outlined by McColl JA in Jingalong Pty Ltd v Todd [2014] NSWCA 330 at [39]-[44]. The four primary considerations are identified at [40] as the length of the delay; the reason for the delay; whether the applicant has a fairly arguable case; and the extent of any prejudice suffered by the Defendant.
Whilst the delay past the required period is not great, I am not satisfied that the explanation provided in the affidavit is adequate to provide a basis for an extension of time for the filing of the summons. In any event, I am of the view that granting an extension of time for the bringing of this appeal would be not in the interests of justice. The appeal is not reasonably or fairly arguable and has no prospects of success for the reasons that follow.
[4]
Analysis of the asserted grounds of appeal
It is convenient to deal with the asserted grounds of appeal as three broad categories. The first is the courtroom management and intimidation allegations in the presence of witnesses during other persons' testimony. The second is the alleged threats to Mr Paschalidis and his wife and other witnesses prior to the trial. The third is of the role of the interpreter.
[5]
Grounds 1,2 and 4: court room conduct and intimidation
That Mr Paschalidis felt intimidated in the courtroom does not amount to a denial of natural justice. Courts of Australia are open to the public, including to persons known to the parties. In John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344; [2004] NSWCA 324, Spigelman CJ stated (with Handley JA and Campbell AJA agreeing) at [18]:
It is well established that the principle of open justice is one of the most fundamental aspects of the system of justice in Australia. The conduct of proceedings in public including, relevantly, the taking of verdicts after a criminal trial, is an essential quality of an Australian court of justice. There is no inherent power of the Court to exclude the public. (See Scott v Scott [1913] AC 417 at 473; Dickason v Dickason (1913) 17 CLR 50 at 51; Daubney v Cooper (1829) 109 ER 438 at 440; Russell v Russell (1976) 134 CLR 495 esp at 507 and 520-521, 532.)…
The judicial officer may exercise his or her discretion to require a person to exit a courtroom, such as if a person is making noise or otherwise being disruptive. There is one mention in the transcript where his Honour warned a person sitting in the gallery who was making noise to desist or leave. The noise his Honour referred to was "audible sighs" from the background. There was no evidence before me as to the identity of the person making the noises or whether she was associated with any of the parties to the proceedings.
There is no other evidence to suggest that the behaviour of any persons in the gallery was in any way disruptive or intimidating to Mr Paschalidis. There is no complaint by the legal representative for Mr Paschalidis of any behaviour in the court being intimidatory or unacceptable.
As set out in paragraph 14 of this judgment, when it was drawn to the attention of counsel for Mr Shamsizadeh that there were people sitting in the court who may be witnesses required to give evidence in Mr Shamsizadeh's case, the only person who fitted that description was asked to leave the court. As it transpired, no witnesses other than Mr Shamsizadeh gave oral evidence in his case. The matter was determined based upon what was set out in their affidavits. Mr Shamsizadeh was entitled to stay in court for the whole of the proceedings. Members of the public are permitted to be in court for the proceedings. There is no identified error of law in the circumstances and those grounds of appeal fail.
[6]
Ground 3 - alleged pre-trial threats
In respect of the threats, no evidence has been given as to who made the threats, or when. There is no detail in the affidavit filed in support of this appeal. The allegation is not dealt with in any affidavits tendered in the Local Court. The assertion that threats led to the withdrawal of the affidavit by one of the witnesses for Mr Paschalidis is not clear. Whilst it may involve the evidence of Mr Hadani, this remains unclear.
The Appellant has not sufficiently articulated the alleged threats so that their relevance if any to the proceedings can be understood. He asserts that there has been a miscarriage of justice on this basis but I am unable to assess whether that is true. Nothing was raised with his Honour about these alleged threats.
[7]
Legal representation for the appeal
After a number of directions hearings spread over some almost 12 months, the appeal proceeded to hearing on 9 June 2017. Mr Paschalidis appeared for himself. He initially stated that he would apply for an adjournment so that he could obtain legal representation however Mr Pachalidis said that he had been obtaining assistance informally from a number of lawyers and expressed no clear intention to formally retain one if an adjournment was granted. Once it was pointed out to Mr Paschalidis that he would have to pay the costs of the respondent thrown away by reason of an adjournment given the ample time he had already had to retain a lawyer - almost 12 months - Mr Paschalidis withdrew his adjournment application and requested his appeal proceed.
He stated that all the submissions he wished to make were included in his summons and affidavit. I granted leave to file and serve further written submissions within a 7 day period with the Respondent to file any further submissions in reply by 14 July 2017.
By email of 16 July 2017, Mr Paschalidis confirmed he would not be making any further submissions and that the matters that occurred in court were not raised with the Magistrate at the time of the hearing because his legal representative was "not experienced in this field and quite incompetent".
There is no evidence that any of these matters were raised with his Honour during the hearing. The email of 16 July 2017 seems to suggest that they were not. The complaints are not sufficiently articulated to allow for any conclusion at all that there was any error of law or that the vaguely referenced incidents led to a miscarriage of justice or a denial of natural justice being afforded to the Appellant.
[8]
The interpreter - grounds 5 and 6
The third category of complaint related to the use of the interpreter. Whilst it is revealed in the transcript of the hearing in the Local Court that on a couple of occasions, the learned Magistrate prompted the interpreter to not have a conversation with the witness but ensure he simply interpreted the evidence directly, there was no complaint made about this by the legal representative for Mr Paschalidis. Mr Paschalidis makes various assertions in his affidavit that Mr Shamsizadeh could speak "perfect English" and queried the use of the interpreter acting as translator for "all of them". Given that Mr Shamsizadeh was the only person who gave oral evidence in his case, this issue is not one that could have affected the hearing process in a way that could cause any miscarriage of justice. These grounds of appeal must fail.
[9]
Decision and orders
For the reasons set out above, I refuse leave to the Appellant to pursue his appeal out of time as the delay has not been sufficiently explained, and he does not have a fairly arguable case.
Accordingly, the orders I make are:
1. Leave to appeal out of time is refused.
2. Summons dismissed.
3. The Appellant is to pay the Respondent's costs.
[10]
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Decision last updated: 22 January 2018