Unilever Aust Ltd v George Karounos & Anor

EX TEMPORE REASONS FOR JUDGMENT 1 On 14 February in this year, I heard an application by Mr Karounos that the date allocated for hearing of proceedings against him be vacated. I declined so to do and advised Mr Karounos that I would on Monday of this week hear the main claim brought by Unilever Australia Limited ("Unilever") against Sabre International Limited and himself but that I would not deal, largely because of the position of the official manager, with the matter of the cross-claim. 2 The hearing commenced this morning. The date yesterday wasbeing vacated for reasons which had nothing to do with the parties. This morning the case was opened by Mrs Bennett SC for Unilever. Mr Karounos represented himself, as has been the case now for some time. Sabre International Limited had opted not to participate in the proceedings although it had indicated it would make such submissions as were necessary for it to make at the conclusion of evidence. 3 To reiterate something of the history of the matter (some of which, at least, is dealt with in the oral judgment I gave on 14 February 2001) the present proceedings were commenced in July of 1998 by an application brought by Unilever against RFC Nominees Pty Limited (now known as Revelinu Pty Limited but herein referred to as "RFC Nominees"). At some stage relatively early in the piece it became clear that RFC Nominees had been struck off the register. An application was subsequently made to the Australian Securities and Investments Commission on an undertaking given, I think by Mr Royle, then solicitor for RFC Nominees, to reinstate the company to the register. 4 RFC Nominees was after some time reinstated to the register. Fairly soon thereafter it appears to have gone into official management, a state which it still has. On 5 June 2000 Mr Karounos was added as a party. RFC Nominees had been trustee of a trust of which Mr Karounos was the appointor and of which members of his family and/or himself were beneficiaries. At some stage Mr Karounos became trustee of that trust and it is in that capacity that he was joined as second respondent. It is fairly obvious that he was completely aware of all steps taken by RFC Nominees. 5 The application and cross-claims were listed for hearing before me for four days on and from 12 December 2000. They had previously been set down for hearing in October of 2000 for four days but that hearing date was vacated. On 11 December 2000, Unilever requested leave to discontinue the proceedings against RFC Nominees, then in official management, and leave was given to do so. A question of cost orders remains to be decided. On 12 December 2000, I commenced the hearing of the matter by taking evidence in chief from the applicant. The hearing was then adjourned, with the hearing dates being vacated and replaced with dates commencing 19 February 2001. The hearing recommenced anew today. 6 Because of the position of the official manager of RFC Nominees, I did not set down the cross-claims in the proceedings. It was not clear whether RFC Nominees would indeed participate. It was seeking advice still and given the suggestion that any cause of action it had had been assigned to Mr Karounos by the registration of a deed removing RFC Nominees and appointing himself trustee of the trust, there was every likelihood that RFC Nominees would not participate in the proceedings today. I made it clear, I thought, that the matter would proceed on 19 February 2001. However, on 14 February 2001, as I have already indicated, a further application was made to vacate the hearing listed for this week. At that time, Mr Karounos indicated that he had not been able to raise money to deal with the case from any sources to that point of time and was not legally represented. 7 For the reasons I then gave, I refused to adjourn the proceedings and stood the matter over until Monday, 19 February 2001. After the evidence of the applicant had concluded, Mr Karounos produced an affidavit sworn by himself, dated 20 February 2001, which outlines his attempts to obtain legal aid. It seems clear that the substance of the affidavit is that application has been made for legal aid through the Family Law and Legal Assistance Division of the Commonwealth Attorney-General's Department, Legal Aid New South Wales and the Law Society of South Australia. 8 The correspondence commences, so far as I can ascertain, in August 2000 and continues until 11 October 2000. It reflects the inability to obtain legal aid which I have mentioned. There was no evidence of any attempt being made by Mr Karounos from the date of the last adjournment until now to obtain legal representation whether by soliciting funds from members of his family as he professes to have sought to do or in any other way. 9 Mr Karounos, at the close of evidence of the applicant's main case in chief, sought to make a submission that the applicant had not demonstrated that it had a case to answer. Initially, Mr Karounos sought leave to make submissions to this effect but it became clear that what he wished to do was to seek yet again an adjournment to obtain legal aid in some form for the purpose of making the no case to answer submission. 10 If Mr Karounos is successful in the no case to answer submission, the applicant presumably loses. If, on the other hand, Mr Karounos is not correct then it would be necessary to proceed with the rest of the case and hear the evidence, if any, which Mr Karounos wishes to call. I am conscious, as instructed by the High Court, that case management cannot dictate the outcome of a hearing. More significant is that the general interests of justice dictate the outcome. 11 I am conscious that Mr Karounos has no legal aid and that it is highly unlikely that he would be able to argue in a sensible way the proposition that Mrs Bennett SC's client had no case to answer but I am also conscious of the fact that in the now over two months since December there is no evidence that Mr Karounos has sought to adduce as to any attempts on his part to obtain legal representation whether through legal aid or otherwise. 12 As far as the evidence before me is concerned all I know is that Mr Karounos has simply done nothing apart from turn up this morning to make yet again another application for an adjournment. On the last occasion an adjournment application was made, which was 14 February 2001, I advised Mr Karounos that I would not agree to an adjournment of the major part of the proceedings meaning thereby the claims by Unilever against those who assert an interest in the marks. 13 One of the reasons for taking that view was that it did not seem that there was any real likelihood of anything further happening in the proceedings or of Mr Karounos ever being able to obtain legal representation. I am still of that view. In my view, on the evidence as it stands, to vacate the hearing at this stage would be to cause considerable injustice to Unilever and probably little injustice to Mr Karounos in that he would not be represented in any event. 14 I am, therefore, not prepared to give an adjournment at this stage and for the reasons I have already given on 14 February 2001. I now come to the question whether I should, as Mr Karounos submits, stand over the proceedings and adjourn them to a further date, a possible date so far as my own personal convenience is concerned would be in the period of four days from 8 March 2001. 15 Having regard to the amount of time that has now elapsed since the proceedings commenced I think that to adjourn the hearing further would be such as to cause additional expense and injustice to the applicant. I accordingly am disposed to continue with the case, permit Mr Karounos, should he wish, to make submissions on his own behalf in support of the submission that there is no case to answer and, subject to whatever I may rule on that issue, to then proceed to deal with Mr Karounos' evidence if there be any that he wish to lead. 16 In that respect, I should note that on the last occasion I indicated to him a matter which would be obvious to any lawyer, that he could, subject to other considerations, read affidavits filed by RFC Nominees and call the deponents of those affidavits in his own case in chief. 17 Although it is obvious I would be assisted by counsel's submissions on Mr Karounos' behalf on the issue of whether there is a case to answer and, for that matter, other issues that arise in the proceedings, I think that in the circumstances having regard to the history of the present litigation, it would be unjustifiably and indeed manifestly unfair on Unilever for the no case to answer submission to be deferred to a later time, say early March, when I would have some time to deal with it. 18 Accordingly, I am prepared to hear submissions that there has been no case brought by Unilever for Mr Karounos to answer but I am not prepared to adjourn the case so that at a later date it might possibly be argued by counsel. With respect to Mr Karounos there is no evidence that suggests that he would be more likely to get legal aid now, or in the future, when he has been unable in the past to do so. 19 If I were convinced of his ability to obtain legal aid I would, I think, nevertheless agree to an adjournment but when there is nothing that suggests that Mr Karounos has any real chance of funding it would, I think, be wrong of me to merely agree to have the matter stood over for some number of weeks to give Mr Karounos the chance to yet again organise a defence or precipitate what could be a lengthy delay. 20 So I will hear now any submissions Mr Karounos wishes to make on the issue of no case to answer.