Liristis v Danic [2011] NSWCA 239 (12 August 2011)

Last Updated: 19 August 2011

Court of Appeal New South Wales

Case Title:	Liristis v Danic
Medium Neutral Citation:	[2011] NSWCA 239
Hearing Date(s):	12 August 2011
Decision Date:	12 August 2011
Jurisdiction:
Before:	Basten JA at 1 and 22; Young JA at 20
Decision:	1. Application for leave refused. 2. Mr Tony Liristis to pay the respondent's costs of the proceedings in this Court as agreed or as assessed [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	COSTS - security for costs - leave to appeal - power of district court to stay proceedings brought by individual plaintiff pending provision of security - Civil Procedure Act 2005 (NSW) s 67 - judicial discretion - no error of principle identified PROCEDURE - civil - leave to appeal - apprehended bias - previous professional relationship with judge - allegations to circumstances of termination - non-disclosure of details - absence of clear evidence - conduct of judge during hearing - tapes obtained but not tendered - whether arguable ground of appeal PROCEDURE - civil - leave to appeal - waiver provided as condition of order for access to premises - lawfulness of condition
Legislation Cited:	District Court Act 1973 (NSW), ss 127, 156 Civil Procedure Act 2005 (NSW), s 67
Cases Cited:	Philips Electronics Australia Pty Ltd v Matthews (2002) NSWCA 157, 54 NSWLR 598
Texts Cited:
Category:	Principal judgment
Parties:	Tony Liristis - First Applicant Tasos Liristis - Second Applicant Rita Liristis - Third Applicant Gabriel Danic - First Respondent Steven Danic - Second Respondent
Representation
- Counsel:	Counsel: Mr Tony Liristis in person Mr P O'Loughlin - Respondents
- Solicitors:	Solicitors: First Applicant self-represented Redmond Hale Simpson - Respondents
File number(s):	CA 2010/271881
Decision Under Appeal
- Court / Tribunal:
- Before:	Knox DCJ; Curtis DCJ
- Date of Decision:
- Citation:
- Court File Number(s)	DC 2009/5081; DC 2009/338107
Publication Restriction:

Judgment

1. BASTEN JA : In this matter there is an application for leave to appeal against two judgments of the District Court at Sydney, one being of Knox DCJ of 21 April 2010 in, the other a judgment of Curtis DCJ of 19 July 2010. In fact Curtis DCJ handed down three judgments on that day. In one he varied an orders made by Knox DCJ that the applicant provide security for costs in the sum of $25,000.

2. The background of the proceedings has been set out in earlier judgments both in the District Court and in this Court and do I do not propose to describe them in detail. In short, on 5 December 2008 Palmer J in the Equity Division ordered that the respondents, or one of them, have immediate possession of a property of which a company controlled by the applicant was then in possession. The order was made in consequence of non-payment of rent. An amount of some $300,000 was said to be outstanding.

3. The possession of the property was complicated by the fact that there were goods and chattels on the premises which were then seized by the Sheriff in the belief that they were the goods of the company which was indebted to the respondents. There has been a dispute as to the ownership of those goods, their fate and the fate of other goods, particularly heavy goods which remain on the premises.

4. There have been two sets of proceedings in the District Court, one brought by the present respondents seeking orders permitting them to dispose of the goods which are still in their possession. Other proceedings have been brought by the applicants seeking different relief in respect of the goods which have been disposed of to the Sheriff. The present matter relates to interlocutory orders made in the District Court and, therefore, requires leave in order for there to be an appeal to this Court: District Court Act 1973 (NSW), s 127(2)(c).

5. Mr Tony Liristis (the applicant) appears in this Court in support of his application for leave to appeal. First, he seeks to challenge the orders made by Knox DCJ on the basis of a reasonable apprehension of bias due, in part, to his Honour having previously acted for the applicant when he was counsel, in a family law dispute, and having had the relationship terminated by the applicant in acrimonious circumstances. In addition, he relies upon the conduct of Knox DCJ in the course of the proceedings and, in particular, on the fact that he was required to proceed in respect of the application for security for costs in circumstances where he had only received an affidavit in support of the application on the first day of the hearing, namely, 16 April 2010.

6. Secondly, he says that on the merits, the security for costs order should not have been made. Thirdly, he objects to conditions, or rather the lack of conditions imposed on a waiver which he was required to sign to protect the defendants in the District Court when property was required to be sold. The proposed condition was, at least by way of example, intended to protect the defendants from the sale of the property at a gross undervalue.

7. The draft notice of appeal which has been filed in this Court, deals primarily with the issue of bias based upon the relationship between the applicant and Knox DCJ and the latter's conduct in the course of the proceedings. The other grounds are not clearly raised, but nevertheless, were dealt with in the summary of argument filed by the applicant in support of his application for leave to appeal. It is, accordingly, appropriate to deal with all three of the matters now raised.

Apprehended bias

8. In respect of the first matter, there was a dispute before Knox DCJ as to whether or not his Honour had ever acted for the applicant, in the circumstances that Mr Liristis claimed. Judge Knox had no recollection of any such involvement, nor indeed it seems, did Mr Liristis before the trial commenced and went into a second day. Mr Liristis explained to Knox DCJ in some detail how he became aware of the earlier circumstances and was reminded by a person who had referred him to then, Mr Brian Knox of counsel for assistance.

9. The circumstances are fully set out in the transcript of the District Court from 19 April 2010 and this Court was content to accept Mr Liristis' statements as the evidence he would have given had he been called upon to explain the relationship. However, in the course of giving that explanation to Knox DCJ, he was asked on a number of occasions by his Honour to provide some detail which would allow his Honour to remind himself of the circumstances in which the relationship had arisen and, no doubt, the circumstances in which it terminated. That however, was not done and indeed, on occasion, Mr Liristis said that he was not in a position to do so, suggesting unwillingness rather than inability.

10. For example, on p 118 of the transcript of 20 April, in response to a question from his Honour, "When did I act for you, Mr Liristis?" He responded, "I can't disclose that at the moment, your Honour." His Honour asked, "Well because I've got no recollection of that, but if you tell me I acted for you", to which the applicant said, "Well your Honour, if you're saying in a Court of law that you can't remember me as a client." It then appeared that he was directly briefed by the applicant. He was asked again when that was and said, "I'm not going to disclose that at this point in time."

11. The circumstances of the briefing are therefore, unclear, as are the circumstances in which the relationship terminated. In the absence of clear evidence in that regard, with some precision in terms of detail, which could then be addressed and if necessary responded to, it is difficult to see error on the part of Knox DCJ in declining to disqualify himself in accordance with the well established principles regarding a reasonable apprehension of bias. It might have been open to Mr Liristis, had he sought to do so, to provide greater detail to this Court in support of his leave application. That step was not taken. This basis for appeal is not reasonably arguable.

12. In respect of the complaint that there was a prejudice revealed by the manner in which his Honour dealt with the applicant in the Court over the period during which he appeared before him, none is discernible from the discussions in the transcript which are in evidence before this Court. Mr Liristis informed this Court that he had sought and, after great delay and difficulty, obtained tapes of that proceeding in the District Court. Those tapes are not in evidence before this Court. There is also a complaint that he was forced on in a manner which failed to allow him an opportunity to deal properly and appropriately and fairly with the evidence in support of the application for security for costs.

13. That matter was addressed, it appears, by his Honour in his judgment on the notice of motion then before him, a judgment delivered on 21 April 2010. It is clear that in dealing with security for costs, he was conscious of the fact that there was an issue as to the service of the material upon which the defendants in the proceedings brought by Mr Liristis sought to rely. At p 4 of his judgment, he accepted the evidence of an affidavit sworn by Mr Sommerville, the solicitor for the Danic family, in which he said that service had been effected on 14 April 2010. He noted that that was disputed and denied by Mr Liristis. That in itself does not warrant the view that there had been procedural unfairness in the manner in which the proceedings were conducted in the District Court.

Order for security

14. The second matter which is the subject of complaint, is that the security for costs order was made in respect of a litigant in person, being an individual or rather three individuals who were concededly impecunious. There is an issue as to the power of a District Court judge to make such an order. That was the subject of discussion in a matter to which his Honour referred at p 14 of his judgment of 21 April, namely, the decision of this Court in Philips Electronics Australia Pty Ltd v Matthews (2002) NSWCA 157, 54 NSWLR 598. In that case, this Court referred to a provision of the District Court Act , as then in force, which provided that, "At any stage of any proceedings, the Court may on terms, order that the proceedings be stayed": District Court Act , s 156.

15. That provision has since been repealed but an identical provision may now be found in s 67 of the Civil Procedure Act 2005 (NSW) which has effect in relation to, amongst other bodies, the District Court. In Philips Electronics , Hodgson JA held, with the concurrence of the President, that s 156 gave the District Court power to make an order staying proceedings unless and until security for costs is given.

16. His Honour also held that the power was not limited by the terms of the rules, which specified circumstances in which it was appropriate to make such an order. The same provisions are to be found in the Civil Procedure Act and the Civil Procedure Rules 2005 (NSW). It is not therefore, in doubt that the District Court judge had power, if he thought it appropriate, to make an order along the lines indicated in Philips Electronics . To make such an order is undoubtedly unusual, especially in circumstances where it might stultify proceedings. Nevertheless, his Honour explained in detail why he did make such an order, the making of which is clearly a discretionary matter of a procedural nature which this Court would not usually intervene in.

17. In the present circumstances, I would not be satisfied that there was any error of principle in the approach that Knox DCJ took in making such an order in the circumstances which he outlined. It does not matter whether or not a judge of this Court would have made such an order in the same circumstances. Unless an error of principle can be identified, there are no grounds for granting leave to appeal.

Conditions of waiver

18. The third matter concerned the condition on which the waiver was given. Mr Liristis signed the waiver. He said he was forced to do it in circumstances where such a document was, in any event, unlawful and of no effect. I am not sure on what basis he says it was unlawful or of no effect. One aspect of the waiver related to the condition of the premises which were uninsured and in a state of disrepair, which would cause concern for any owner were third persons to go on to the premises in order to remove property. To impose as a condition, a requirement that such a waiver be given to permit people to go on to the property, is understandable. The form of the waiver is sufficient in my view, to give the appropriate degree of protection. It is not a question of the willingness or unwillingness of Mr Liristis to give the waiver; it is sufficient that it was an appropriate condition of the orders which were made by Curtis DCJ. I do not see any basis for granting leave to appeal in respect of that matter.

19. Accordingly, in the circumstances, the application for leave to appeal should be refused.

20. YOUNG JA : Yes, I agree and I will make a comment or two on the first matter. It must be a unique situation where a judge is challenged for bias and says he has no memory of the incident relied on. As Mr Tony Liristis pointed out, the judge did not deny that he previously acted for him, just that he had no memory of it. But it is virtually impossible for any court to make a finding of fact on the matter because the judge should not be cross-examined and was not cross-examined.

21. I think the approach must be if ever this happens again, if a judge says that he or she cannot remember any previous association or circumstances, the appellate court must just accept it and accept that any incident during any prior relationship was not in the primary judge's mind when conducting the hearing. This a fortiori applies in the instant case where the judge asks the party for further and better details which the party declines to give, even if I accept Mr Liristis' claim that he would otherwise be prejudiced if he did give the particulars. So I agree with what the presiding judge has said.

22. BASTEN JA : The order of the Court is therefore, the application for leave be refused.

23. The respondents seek costs against the applicants. The proceedings have been commenced and conducted by Mr Tony Liristis; there is no evidence before the Court that the other two applicants, who are it appears his father and mother, have consented to his conduct of proceedings on their behalf. No order should be made imposing on them liability for costs. Mr Liristis accepts he should pay costs, but says they should be assessed. The Court will add the following order: Mr Tony Liristis is to pay the respondents' costs of the proceedings in this Court as agreed or as assessed.

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