Fezollari v The King [No 2]

[2025] VSCA 38

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2021 0163

ANTHONY FEZOLLARI	Applicant
v
THE KING [NO 2]	Respondent

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JUDGES:	BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2025
DATE OF JUDGMENT:	17 March 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 38
JUDGMENT APPEALED FROM:	DPP v Fezollari (Unreported, County Court of Victoria, Chief Judge Rozenes, 12 April 2010) DPP v Fezollari (Unreported, County Court of Victoria, Judge Dean, 29 June 2011)

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PRACTICE AND PROCEDURE – Application for extension of time within which to seek leave to appeal against conviction – Application for leave to appeal against conviction – Applicant relying on interim/holding written case – Applicant currently not taking any step to finalise written case – Applicant in breach of orders requiring revised/final document to be filed and served – Applicant taking no steps to progress applications – Applicant failing to appear or instruct legal practitioners – Applications dismissed for want of prosecution.

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Counsel
Applicant:		No appearance
Respondent:		Ms S Clancy
Solicitors
Applicant:	Not applicable
Respondent:	Ms A Hogan, Solicitor for Public Prosecutions

BEACH JA
MCLEISH JA:

1. In 2010, following a plea of guilty to one charge of trafficking methamphetamine, the applicant was sentenced to a term of imprisonment. In 2011, following a plea of guilty to another charge of trafficking methamphetamine, the applicant was sentenced to another term of imprisonment.

2. On 22 November 2021, and notwithstanding his pleas of guilty, the applicant filed an application for an extension of time within which to seek leave to appeal against his convictions, together with an application for leave to appeal against conviction and a document headed, ‘Interim/Holding Written Case for the Applicant’ (‘the applicant’s interim written case’).

3. The applicant’s interim written case asserts that Nicola Gobbo represented him between 2004 and 2008; and that she informed on him ‘for over two years between at least 31 August 2006 and 12 December 2008’. In seeking an extension of time within which to file an application for leave to appeal against conviction, the applicant advances two proposed grounds of appeal:

   1.There has been a substantial miscarriage of justice because the applicant’s legal representative, Nicola Gobbo, was informing on him to police.

   2.There has been a substantial miscarriage of justice because of the failure to disclose, and concealment of the fact, that the applicant’s legal representative, Nicola Gobbo, was a registered police informer.

4. In January 2022, the applicant applied for an order under s 317 of the Criminal Procedure Act 2009 for the Chief Commissioner of Police to produce various documents. That application was resolved by the making of consent orders in this Court in April 2022. A further dispute about redactions to the documents produced by the Chief Commissioner was resolved by orders made on 14 December 2022.[1]

   [1]Fezollari v The King [2022] VSCA 281 (McCann JR).

5. The s 317 issues between the parties having been concluded, on 22 December 2022, a Registry lawyer sent an email to the parties which, after referring to earlier communications, provided:

   Given the indications provided, the Court is content with the following timetable:

   •29 March 2023: Applicant to file revised notice of application for leave to appeal against conviction and written case.

   •26 April 2023: Respondent to file written case.

6. In the more than two years following the conclusion of the s 317 issues, apart from the applicant’s former solicitors (‘the former solicitors’) filing a notice that they had ceased to act, the applicant has taken no other step to progress his matter in this Court. More specifically, the applicant has not filed any revised application for leave to appeal or written case as contemplated by the Registry lawyer’s email of 22 December 2022.

7. Since January 2024, there have been various communications between the former solicitors, the respondent and the Court about the progress of the applicant’s proceeding in this Court. From these communications, it appears that the applicant is overseas (perhaps in Albania); his precise whereabouts are unknown; his precise intentions in relation to his applications are unknown; and the solicitors are no longer being instructed by him and/or performing any legal services for him.

8. In these circumstances, and having regard to the lack of progress of the applicant’s proceeding, on 1 August 2024, the respondent filed an outline of submissions seeking the dismissal of the applicant’s applications pursuant to r 2.03(2) of the Supreme Court (Criminal Procedure) Rules 2017 (‘the Rules’). Rule 2.03(2) provides:

   (2)Two Judges of Appeal may constitute, and may exercise all the jurisdiction and powers of, the Court of Appeal to dismiss an appeal or an application for leave to appeal —

   (a)for noncompliance with this Order; or

   (b)if it is otherwise appropriate to do so.

9. On 27 August 2024, McCann JR made an order, pursuant to r 2.13(1)(b) of the Rules, that the applicant’s application for leave to appeal against conviction and his application for an extension of time be referred for dismissal to two judges of appeal.

10. The referred application was heard by us on 26 September 2024. On that day, the respondent appeared seeking to have the applicant’s applications dismissed; and the former solicitors appeared, saying that they had no instructions from the applicant, and asking to be allowed to withdraw from continuing to act for him.

11. After hearing argument, we concluded that it was premature at that stage to dismiss the applicant’s applications.[2] Instead, we made the following orders:

    (1)By 4:00 pm on 10 February 2025, the applicant file and serve a revised notice of application for leave to appeal against conviction, and a final written case in support of his application for an extension of time and revised application for leave to appeal against conviction.

    (2)The solicitors on the record for the applicant [the former solicitors] email to each email address they have for the applicant, and send to each postal address they have for the applicant, copies of these reasons, the respondent’s submissions dated 1 August and 16 September 2024, the affidavit of Megan Elizabeth Healy affirmed 16 September 2024 and the exhibits thereto, and the orders made this day.

    (3)Following compliance with order (2), the [former] solicitors file and serve an affidavit detailing their compliance with the order.

    (4)The respondent’s application for the dismissal of the applicant’s application for leave to appeal against conviction and his application for an extension of time be adjourned until 17 March 2025.

    (5)Liberty to apply.

    [2]Fezollari v The King [2024] VSCA 220, [10] (‘Fezollari (No 1)’).

12. Additionally, in the course of refusing the applications made by the former solicitors and the respondent, we said:

    Upon the filing of a satisfactory affidavit of compliance with order (2) above, we would likely grant (on the papers, and to the extent necessary) leave to the solicitors to withdraw and formally cease acting for the applicant.

    Finally, we should state for the sake of completeness that, in the event of the applicant not complying with order (1) above and/or providing some satisfactory explanation for any non-compliance with that order, then the applicant should be aware that he will be at real risk of having his applications for an extension of time and leave to appeal against conviction dismissed for want of prosecution at the hearing on 17 March 2025.[3]

    [3]Ibid [12]–[13].

13. In compliance with orders (2) and (3) made on 26 September 2024, the former solicitors filed two affidavits affirmed by their Principal and Director, Ruth Parker. In her affidavits, Ms Parker deposed to sending the documents referred to in Order (2) to two email addresses she had for the applicant, as well as posting the documents to his ‘last known postal address’. Ms Parker also deposed to having located an overseas telephone number ‘which at one time was used by Mr Fezollari’. On 28 January 2025, Ms Parker sent a text to that number ‘alerting the recipient to [her] correspondence’.

14. As at 11 February 2025 (the date upon which Ms Parker affirmed her second affidavit), Ms Parker had not received any response from the applicant. According to her affidavits the last contact she had with either the applicant or his wife was on 12 October 2023.

15. There has now been no progress of any kind in the applicant’s applications for more than two years. Despite multiple attempts to communicate with him about his applications (including the sending to him of the documents referred to in the orders we made on 26 September last), and notwithstanding the publication of those orders and the reasons for them in Fezollari (No 1) on almost six months ago, the applicant has simply maintained radio silence — seemingly ignoring every attempt to communicate with him.

16. When the matter was called this morning, there was no appearance for the applicant. Moreover, there has been no compliance by him with Order (1) made on 26 September 2024, or any communication from any person seeking an extension of time for such compliance.

17. In the circumstances, it is plain to us that the applicant does not propose to take any step to progress his applications at any time in the foreseeable future. At the risk of repetition, the applications were filed in 2021 and there has been no progress of any kind for more than two years. The timetable fixed in December 2022 has been ignored by the applicant, as has the order we made in September 2024 requiring him to file and serve a revised application for leave to appeal and a final written case in support.

18. The applications for an extension of time and for leave to appeal remain on foot. There has been inordinate delay by the applicant in the prosecution of them. Remaining on foot, they have continued to consume the time of the respondent and court staff — these being limited public resources — to an extent that is now patently unjustifiable. In all the circumstances, the applications should now be dismissed for want of prosecution, and we will so order.

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