Giza v Waybecca Pty Ltd
[2016] VSCA 184
•1 AUGUST 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0002
| RICHARD GIZA | Applicant |
| v | |
| WAYBECCA PTY LTD (ACN 143 303 511) | Respondent |
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| JUDGES: | REDLICH and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 AUGUST 2016 |
| DATE OF JUDGMENT: | 1 AUGUST 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 184 |
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PRACTICE AND PROCEDURE – Costs – Security for costs – Application for security for costs of application for leave to appeal and appeal – Applicant seeking leave to appeal from order to which he is not a party – Applicant seeking leave to appeal a costs order made against him – Proceeding concerning property of modest value – Whether proposed grounds of appeal disclose sufficiently arguable claim of error – Failure to confine proceeding within reasonable bounds – Applicant for leave to appeal impecunious – Whether compliance with overarching obligations – Costs out of proportion to value of property in dispute – Civil Procedure Act 2010, ss 19,23 and 24 – Application for security for costs granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr P Baker | Falcone and Adams Lawyers |
REDLICH JA
BEACH JA:
This is an application for security for costs brought by Waybecca Pty Ltd against Mr Richard Giza. The security is sought in respect of Waybecca’s costs of defending Mr Giza’s application for leave to appeal and (if leave is granted) Mr Giza’s appeal from orders made by Lansdowne AsJ on 30 November 2015. Waybecca seeks security from Mr Giza in the sum of $35,000.
History of the proceeding
The origins of the present application can be traced back to a proceeding in the Magistrates’ Court between Waybecca and one Joseph Vella. Mr Giza was not a party to this proceeding.
On 6 June 2014, a magistrate ordered that a registrar of the Magistrates’ Court execute a transfer of land to give effect to the settlement of a contract whereby Waybecca agreed to purchase a parking lot from Mr Vella for the sum of $15,000 plus GST. Subsequent to the making of this order, Mr Giza, a person not qualified as an Australian legal practitioner, purported to commence an appeal in the Supreme Court on behalf of Mr Vella.
On 13 August 2014, Lansdowne AsJ refused Mr Giza leave to appear on behalf of Mr Vella. Mr Giza, on behalf of Mr Vella, then sought to appeal the decision of Lansdowne AsJ. On 12 September 2014, Hargrave J dismissed this appeal, principally on the basis that Mr Giza’s proposed representation of Mr Vella was unlawful under the Legal Profession Act 2004, and ordered costs against Mr Vella and Mr Giza.[1] On 22 September 2014, Hargrave J ordered that the appeal from the Magistrates’ Court be referred to Lansdowne AsJ for hearing and determination pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules 2005.[2]
[1]Vella v Wybecca Pty Ltd (Scil, Vella v Waybecca Pty Ltd) [2014] VSC 443.
[2]These rules were repealed and replaced on 23 November 2015 by the Supreme Court (Civil Procedure) Rules 2015.
On 27 November 2014, Lansdowne AsJ heard the appeal against the magistrate’s order. Mr Vella appeared in person, assisted by Mr Giza as a McKenzie friend.[3] On 30 November 2015, her Honour dismissed Mr Vella’s appeal as incompetent because the magistrate’s order that was sought to be appealed was an interlocutory order: the right of appeal conferred by s 109 of the Magistrates’ Court Act 1989 being a right to appeal only from a final order. That said, in her reasons for judgment, Lansdowne AsJ also dealt with the merits of the issues sought to be raised on appeal to the Trial Division.[4] Her Honour gave detailed reasons why, if she had concluded that the appeal was competent, the appeal would have been dismissed in any event.[5]
[3]McKenzie v McKenzie [1971] P 33.
[4]Vella v Waybecca Pty Ltd (No 2) [2015] VSC 678.
[5]Ibid, [73]-[166].
Upon the delivery of her reasons for judgment, and the giving of separate reasons in relation to costs,[6] Lansdowne AsJ made the following orders:
1. The appeal be dismissed.
2.Order 2 made by Justice Hargrave on 12 September 2014 and Order 10 made by Associate Justice Lansdowne on 1 October 2014 are confirmed.
3.The appellant pay the respondent’s costs of Mr Giza’s summons filed 10 September, and proposed amended summons, including for the avoidance of doubt the costs of 1 October 2014, on a standard basis.
4.The appellant and Mr Richard Giza otherwise jointly and severally pay the respondent’s costs of the appeal on an indemnity basis.
[6]Vella v Waybecca Pty Ltd (Unreported, Supreme Court of Victoria, Lansdowne AsJ, 30 November 2015).
On 11 January 2016, Mr Giza filed an application for leave to appeal against paragraphs 1, 2 and 4 of the orders made by Lansdowne AsJ on 30 November 2015. The application for leave to appeal also sought leave to appeal from various orders previously made by Lansdowne AsJ on 1 October 2014 and orders made by Hargrave J on 12 and 22 September 2014. The application for leave to appeal named Mr Giza as applicant and Waybecca as respondent. On 22 January 2016, Mr Giza filed an amended application for leave to appeal. The amended application for leave to appeal contains numerous grounds. The grounds are wide-ranging. For example, ground 1.17 makes reference to the Charter of Human Rights and Responsibilities; and ground 1.18 makes reference to the Bill of Rights of 1688 and the Magna Carta.
On 22 April 2016, this Court dismissed an application made by Mr Giza for an extension of time within which to file an application for leave to appeal in respect of the orders made in the Trial Division on 12 and 22 September and 1 October 2014.[7] Mr Giza has filed an application seeking special leave to appeal to the High Court in respect of the dismissal of this application.
[7]Giza v Waybecca Pty Ltd [2016] VSCA 78 (Santamaria and McLeish JJA).
On 25 May 2016, Judicial Registrar Irving made orders requiring Mr Giza to amend his application for leave to appeal, so as to conform with the orders made by this Court on 22 April 2016. On 7 June 2016, Mr Giza filed an amended application for leave to appeal and an amended written case. He also filed a notice of a constitutional matter and a notice of a matter under the Charter of Human Rights and Responsibilities.
On 5 July 2016, this Court dismissed an application made by Mr Giza under r 64.42(8) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) for an order to set aside the orders made by Judicial Registrar Irving on 25 May 2016.[8]
[8]Giza v Waybecca Pty Ltd [2016] VSCA 155 (Kyrou JA).
The present application
As we have said, in the present application, Waybecca seeks an order for security for costs of the application for leave to appeal and appeal, in the sum of $35,000. The application is supported by an affidavit sworn by Marcus Christopher Adams, a principal of the firm of solicitors acting for Waybecca. In his affidavit, Mr Adams refers to the fact that Mr Giza has previously sworn, in an affidavit in January 2016, ‘that he [Mr Giza] is a pensioner on a disability support pension and homeless, does not own a car and experiences financial hardship and has only basic living needs covered’. Additionally, Mr Adams has deposed that an index title search reveals that Mr Giza is not the registered proprietor of any real property. Mr Adams has further deposed that, in his experience as a solicitor of some 20 years, he would expect the costs up to and including the hearing of the application for leave to appeal will be in the range of between $35,000 and $45,000.
Mr Giza opposes the application for security for costs. In his notice of opposition, Mr Giza advances 15 reasons why the application for security for costs should be dismissed. These include that the application is vexatious; the application is frivolous; the application constitutes an abuse of process; the application is without foundation; the application is without a cause; the application ‘breaches Equity’s principles under which doctrine the case is run from its beginning’; the application demonstrates unconscionable conduct; the application is ‘in practice an obstruction to a proper administration of justice’; and the application is ‘made out of malice and hatred’.
Analysis
Rule 64.38(2)(a) of the Rules provides that the Court of Appeal, on the application of a party, may make an order for security for costs of an appeal or an application before the Court. The factors relevant to the exercise of the Court’s discretion whether to grant security for costs include:
(a) the prospects of success of the appeal;
(b) the degree of risk that a costs order might not be satisfied;
(c) whether the making of an order would be oppressive by stifling a reasonably arguable claim;
(d) whether any impecuniosity of the applicant for leave to appeal arises out of the conduct about which complaint is made;
(e) whether there are any aspects of public interest militating against the making of an order; and
(f) whether there are any particular discretionary matters relevant to the application.[9]
[9]See generally, Re Equity Access Pty Ltd v Westpac Banking Corporation (1989) 16 IPR 431; Maher v Commonwealth Bank of Australia [2008] VSCA 122 [80]; Ribbera v Eagle Hills Pty Ltd [2014] VSCA 173 [30]; Trkulja v Dobrigevic [2015] VSCA 281 [43].
Mr Giza seeks leave to appeal (and to appeal) paragraphs 1, 2 and 4 of the orders of Lansdowne AsJ made on 30 November 2015. Waybecca submits that the application for leave to appeal has no prospects (alternatively, little prospects) of success. In support of those submissions, Waybecca observes that Mr Giza is not a party to paragraph 1 of her Honour’s orders, and that Mr Vella has not sought to appeal from that order. The appeal in respect of paragraph 2 of her Honour’s orders is said to be hopeless because that paragraph merely confirms an earlier order for costs which continues to operate on its own terms, and from which there is no extant appeal. The application for leave to appeal in respect of paragraph 4 of her Honour’s orders (the costs order made by Lansdowne AsJ against Mr Giza) is said to have no prospects of success for the reasons given by Lansdowne AsJ. Essentially, Waybecca submits that no arguable error in the exercise of Lansdowne AsJ’s order for costs has been identified.[10]
[10]Indeed, we should note that after her Honour delivered her substantive reasons for judgment on 30 November 2015, her Honour said in her costs reasons that the order for indemnity costs that had been sought against Mr Giza was not opposed by him: Vella v Waybecca Pty Ltd (Unreported, Supreme Court of Victoria, Lansdowne AsJ, 30 November 2015), [1]-[2]. If that is so, then absent the setting aside of paragraph 1 of the orders of 30 November 2015, it is difficult to see how paragraph 4 could be successfully challenged by Mr Giza in this Court.
In response to Waybecca’s security for costs application, Mr Giza has purported to make application for Waybecca’s application to be summarily dismissed with costs ‘as vexatious, frivolous, abuse of the process and based upon prohibited reasons such as malice, hatred, ill will towards me [Mr Giza] and my life by the respondent and his [sic] agents’. In what appears to be an answer to Waybecca’s submissions that Mr Giza has no standing to seek leave to appeal in relation to Lansdowne AsJ’s order dismissing the appeal from the Magistrates’ Court, Mr Giza has submitted, in a document dated 11 July 2016:
Since Joseph Vella waived his proprietary rights in writing on 13 April 2016 in my favour, I am from 13/04/2016 officially a sole owner and a rightful proprietor of [the parking lot].
Precisely how this ‘waiver’, alleged to have occurred after the making of final orders in the Trial Division, might give Mr Giza standing to seek leave to appeal paragraph 1 of Lansdowne AsJ’s order dismissing the appeal from the Magistrates’ Court has not yet been explained by Mr Giza.
This proceeding concerns property of relatively modest value. The costs that have been incurred from the commencement of proceedings in the Magistrates’ Court to date, however, could only be described as wholly out of proportion with the value of the subject matter of the dispute. Moreover, as the judgments that have already been written in the Trial Division and in this Court in these proceedings disclose, Mr Giza’s compliance with the overarching obligations set out in the Civil Procedure Act 2010[11] could not be described as wholehearted.
[11]See in particular, ss 19, 23 and 24 of the Civil Procedure Act 2010.
Mr Giza has chosen to inject himself into a proceeding between two other parties. He has purported to act as a McKenzie friend. He has then himself sought the assistance of a McKenzie friend. At one point during the hearing of proceedings in the Trial Division, Mr Giza made complaint that Lansdowne AsJ did not provide him with the assistance that an unrepresented litigant is entitled to expect — a somewhat curious position for a McKenzie friend to take; and one that was rightly rejected in the Trial Division.
Mr Giza is impecunious. That impecuniosity has not been brought about by any conduct of Waybecca. In the event that Mr Giza fails in his application for leave to appeal, there is little (if any) prospect that Waybecca will recover its costs from Mr Giza.
It is not appropriate at this stage to go into a detailed analysis of the merits of Mr Giza’s application for leave to appeal. It is sufficient to say that if there is some arguable point upon which Mr Giza might succeed, then it has been hidden amongst an array of largely incoherent proposed grounds of appeal. All that might usefully be said at this stage is that Mr Giza, despite his obvious impecuniosity, has not persuaded us that ordering security for costs against him is likely to stifle a reasonably arguable claim.
The conduct of Mr Giza’s application for leave to appeal in this Court to date has been needlessly protracted by Mr Giza’s failure to attempt to confine the proceeding within reasonable bounds and by Mr Giza’s failure to accept the correctness of any order with which he disagrees. For example, Mr Giza’s attempt to review the orders made by the Registrar was, as Kyrou JA observed in dismissing that application, ‘devoid of any substance’.[12]
[12]Giza v Waybecca Pty Ltd [2016] VSCA 155 [12].
In all the circumstances, we are persuaded that Mr Giza should be required to give security for Waybecca’s costs of the application for leave to appeal, and the appeal if leave is granted.
If the application for leave to appeal was being conducted in a more confined manner by Mr Giza than it is currently being conducted, we would have thought that Waybecca’s reasonable costs of defending the application for leave to appeal (and, if leave is granted the appeal, which will be heard at the same time as the application for leave) would be more of the order of $15,000 than the sum sought by Waybecca. However, we accept that Waybecca’s costs are likely to be significantly inflated by the continued taking of obscure and opaque points by Mr Giza and the continued cavilling by him with procedural orders. Taking those matters into account, we have come to the conclusion that Mr Giza should be required to provide security for Waybecca’s costs of the application for leave to appeal and, if leave is granted, the appeal, in the sum of $25,000.
Orders
There will be orders as follows:
1.By 4.00pm 8 September 2016, the applicant provide security for the respondent’s costs of the application for leave to appeal and, if leave is granted, the appeal in the sum of $25,000 by payment into court to the Senior Master of this sum or in any other form satisfactory to the Senior Master.
2.If the applicant fails to comply with the order in paragraph 1 hereof, the application for leave to appeal will stand dismissed with costs including reserved costs.
3.The applicant pay the respondent’s costs of and incidental to this application, including the costs reserved on 21 July 2016.
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