Giza v Waybecca Pty Ltd
[2016] VSCA 78
•22 April 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0002
| RICHARD GIZA | Applicant |
| v | |
| WAYBECCA PTY LTD | Respondent |
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| JUDGES: | SANTAMARIA and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 15 April 2016 |
| DATE OF ORDERS: | 15 April 2016 |
| DATE OF REASONS: | 22 April 2016 |
| MEDIUM NEUTRAL CITATION: | [2016] VSCA 78 |
| JUDGMENT APPEALED FROM: | [2014] VSC 443 (Hargrave J) [2015] VSC 678 (Lansdowne AsJ) |
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PRACTICE AND PROCEDURE – Application for extension of time – Non-party seeking extension of time to appeal – Whether applicant has standing – Substantial delay in bringing application – Unsuccessful party not appealing – No satisfactory reason for delay – Prospects of success of appeal – No error of law identified – Application dismissed.
PRACTICE AND PROCEDURE – Application for stay – Special or exceptional circumstances – No special or exceptional circumstances raised – Supreme Court (General Civil Procedure) Rules 2015 r 64.39 – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondent | Mr P T Baker | Falcone & Adams |
SANTAMARIA JA
McLEISH JA:
Summary
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 dated 7 December 2012, whereby Waybecca Pty Ltd (‘the respondent’) agreed to purchase a parking lot from Joseph Vella (‘Mr Vella’). Thereafter, Richard Giza (‘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. Associate Justice Lansdowne ruled that the appeal was incompetent as Mr Giza was not qualified to represent Mr Vella. That ruling was upheld by Hargrave J. Subsequently, Hargrave J referred the hearing and determination of the appeal to Lansdowne AsJ. Associate Justice Lansdowne heard and dismissed the appeal and made various costs orders including orders that Mr Vella and Mr Giza pay the respondent’s costs of the appeal on an indemnity basis.
On 16 January 2016, Mr Giza filed an application for leave to appeal. An amended application for leave to appeal is dated 22 January 2016. The amended application identifies two other applications, being an application for an extension of time for leave to appeal the orders made by Hargrave J and for a stay of the costs orders made by Lansdowne AsJ. It is these last two applications that are currently before the Court.
For the reasons that follow, the application for the extension of time and the application for the stay should be refused.
Background
Mr Vella is the registered proprietor of an accessory unit (number 34) at 595 Chandler Road, Keysborough. By contract of sale dated 7 December 2012, the respondent agreed to purchase unit 34 from Mr Vella. The agreed price for the sale was $15,000 plus GST and a deposit of $3,000 was paid. Settlement was due on 20 December 2012.
Mr Vella, Mr Giza and the respondent also entered into a deed on 7 December 2012, along with a company of which both Mr Vella and Mr Giza were directors. Various goods belonging to Mr Vella, Mr Giza and the company were located on unit 34 and in a neighbouring factory which Mr Vella had previously sold to the respondent, and the deed provided for their orderly collection. Mr Vella signed the deed both in his personal capacity and as director of the company.
Proceedings in the Magistrates’ Court
Mr Vella refused to settle the contract of sale and the respondent instituted proceedings on 15 April 2013 seeking specific performance. Mr Vella did not file a defence.
The respondent made application for an order in default of defence on 17 June 2013. On 24 June 2013, Magistrate Connellan made an order requiring Mr Vella to complete the contract on 17 July 2013, in particular by handing to the respondent the certificate of title and a discharge of mortgage.
Mr Vella did not comply with that order, or apply to have it set aside. The respondent filed a summons pursuant to s 135 of the Magistrates’ Court Act1989 seeking enforcement of the default order, which came before the magistrate on 19 November 2013.
On 19 November 2013, the magistrate ordered Mr Vella to complete the contract of sale on 3 December 2013 at the Springvale branch of the National Australia Bank. That order was not complied with either.
On 3 December 2013, a solicitor for the respondent attended upon Mr Vella with the balance of the purchase price. Mr Vella was in the company of another person, who contended that the order of 19 November 2013 had been obtained ‘under false pretences’ and sought to record the discussion with the solicitor for the respondent. That person said that Mr Vella would not settle, and so the solicitor left.
On 11 December 2013, the matter came back before the magistrate. Mr Vella appeared. The magistrate ordered Mr Vella to comply with the previous orders, and to pay a fine of one penalty unit per day in default for a maximum of 40 days.
Mr Vella did not comply with the orders made on 11 December 2013. By affidavit sworn 17 April 2014, Mr Adams, solicitor for the respondent, sought an order that Mr Vella be imprisoned for so long as his default continued (for no more than two months), that a registrar of the Court execute the transfer for him and other orders for the stated purpose of ‘an arrangement for carrying into effect’ the earlier orders.
On 6 June 2014, the matter came back before the magistrate. Mr Vella did not attend, having sought an adjournment. The magistrate refused the adjournment and declined to order that Mr Vella be imprisoned, but made orders for the completion of the contract substantially as sought by the respondent.
It remains the case that Mr Vella has not completed the contract.
Appeal to Supreme Court
On 4 July 2014, Mr Giza purported to institute an appeal on behalf of Mr Vella in the Supreme Court against the orders of the magistrate made on 6 June 2014. The notice of appeal and summons for directions required by r 58.10 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’) were not signed by Mr Vella or by a solicitor on his behalf. They were signed by Mr Giza, who stated on the document that he held a power of attorney from Mr Vella. Mr Giza also filed a copy of the power of attorney. This document was a general power, dated 1 June 2014, given by Mr Joseph Vella who appointed Mr Giza to be his attorney and authorised him ‘to do on my behalf any thing that I may lawfully authorise an attorney to do.’
On 13 August 2014, Lansdowne AsJ refused Mr Giza leave to appear on behalf of Mr Vella.[1] Her order made that day recited the following under ‘Other Matters’:
1.Only a party in person or by legal practitioner has a right of appearance. It is not correct to assert, as does Mr Giza, that a person has a right to choose representation by other than a legal practitioner. In particular, a power of attorney does not confer any right on the donee of the power to appear for the donor of the power. The Court has power to grant leave to a person who is not a legal practitioner to appear for a party but that leave is rarely given.
2.In this instance, the principal factor relied upon is that the appellant is illiterate. Without hearing from Mr Vella in person, the Court does not consider his illiteracy (even if established) to be sufficient reason for the grant of leave to Mr Giza to appear for him. Illiteracy does not prevent a person dictating and adopting documents on those documents being read to him or her, or making oral submissions. The Court may also permit a litigant in person to be assisted by a ‘McKenzie friend’, but a ‘McKenzie friend’ has no right to make submissions.
3.The intent of order 2 (ii) is to confirm that the appellant authorises the commencement of proceedings in his name, with the usual consequences including liability for costs. This proceeding has been commenced by Mr Giza, in the appellant’s name.
[1]Vella v Waybecca Pty Ltd (No 2) [2015] VSC 678 [9].
Orders made by Hargrave J on 12 September 2014
Mr Giza, on behalf of Mr Vella, sought to appeal the decision of Lansdowne AsJ refusing Mr Giza leave to represent Mr Vella.
On 12 September 2014, Hargrave J dismissed the appeal (Order 1), 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 (Order 2).[2]
[2]Vella v Wybecca Pty Ltd [2014] VSC 443.
In giving his reasons, Hargrave J dealt with the further conduct of Mr Vella’s appeal from the decision of the Magistrates’ Court. He said:
The appropriate course is for Mr Vella to appear in person at the next interlocutory hearing in his appeal and, if he wishes, to seek to be assisted by an appropriate McKenzie friend. Given his familiarity with the issues, Mr Giza may be the appropriate person to fulfil that role. It should be noted, however, that a ‘McKenzie friend’ does not have the right of audience. In Apostolou v Commissioner of State Revenue, Mandie J summarised the role of a McKenzie friend by reference to authority, in the following terms:
Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no-one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.[3]
As can be seen, the role of a McKenzie friend includes taking notes and to ‘quietly make suggestions and give advice’, but not ‘to take part in the proceedings as an advocate’.
Alternatively, an application should be made for the appointment of a litigation guardian to prosecute Mr Vella’s appeal by a solicitor.[4]
[3][2008] VSC 332 [20], quoting Collier v Hicks (1831) 2 B & Ad 663, 669; 109 ER 1290, 1292 (Lord Tenterden CJ), cited in McKenzie v McKenzie [1971] P 33, 38.
[4]Vella v Wybecca Pty Ltd [2014] VSC 443 [30]–[32].
Orders made by Hargrave J on 22 September 2014
In the event, on 22 September 2014, Hargrave J ordered that the appeal be referred to Lansdowne AsJ for hearing and determination under r 77.05 of the Rules.
Orders made by Lansdowne AsJ on 1 October 2014
On 1 October 2014, Lansdowne AsJ conducted a directions hearing in the appeal proceeding that had been referred to her by Hargrave J on 22 September 2014. In the meantime, Mr Giza had sought to be joined or be substituted for Mr Vella as a party to the appeal. He had not made such an application in the Magistrates’ Court.
On that day, Lansdowne AsJ ordered, amongst other things that:
(a) leave be refused to Mr Giza to amend his summons in accordance with his proposed amended summons filed 26 September 2014 (Order 2);
(b) Mr Giza's application to be joined as a party to the proceeding and/or that he be substituted as the appellant in the proceeding be refused (Order 3);
(c) Mr Vella, the appellant, be required to attend personally or by legal representative if he wished to prosecute the appeal (Order 5); and
(d) Mr Giza be required to pay the respondent's costs of Mr Giza's summons (Order 10).
Orders made by Lansdowne AsJ on 30 November 2015
On 27 November 2014, Lansdowne AsJ heard the appeal proceeding. Thereafter, she received various written submissions. Mr Vella appeared in person, assisted by Mr Giza as a McKenzie friend.
On 30 November 2015, Lansdowne AsJ dismissed Mr Vella's appeal as incompetent because the enforcement order made on 6 June 2014 giving effect to the final order made on 24 June 2013 was not a 'final order' within the meaning of s 110(1) of the Magistrates Court Act 1989.[5]
[5]Vella v Waybecca Pty Ltd (No 2) [2015] VSC 678.
In separate reasons given on the same day, Lansdowne AsJ made an order that Mr Vella as the appellant pay the costs of the respondent on an indemnity basis. She also found that, as there were exceptional circumstances shown, an order for costs should be made against Mr Giza, also on an indemnity basis. The order was a joint and several order giving the respondent liberty to pursue one or both of Mr Vella or Mr Giza.
In the event, Lansdowne AsJ ordered that:
(e) the appeal from the orders of the magistrate be dismissed (Order 1);
(f) the costs orders made by Hargrave J on 12 September 2014 and by Lansdowne AsJ on 1 October 2014 be confirmed (Order 2);
(g) Mr Vella pay the respondent's costs of Mr Giza's summons seeking to become a party on a standard basis (which Mr Giza had already been ordered to pay) (Order 3); and
(h) Mr Vella and Mr Giza otherwise jointly and severally pay the respondent's costs of the appeal on an indemnity basis (Order 4).
Application for leave to appeal
On 11 January 2016, an application for leave to appeal was filed in the Registry of the Court of Appeal. The application is made in the name of Mr Giza alone. The application identifies various orders in respect of which leave to appeal is sought. In particular, it identifies:
(i) Order 1 made by Lansdowne AsJ on 30 November 2015;
(j) Order 2 made by Lansdowne AsJ on 30 November 2015, confirming the costs orders of 12 September 2014 made by Hargrave J and 1 October 2014 made by Lansdowne AsJ;
(k) the Orders made by Hargrave J on 12 September 2014 (dismissing the appeal against the decision of Lansdowne AsJ refusing leave for Mr Vella to be represented by Mr Giza and making orders for costs) and on 22 September 2014 (referring the hearing of the appeal from the orders of the magistrate to Lansdowne AsJ);
(l) Orders 2, 3 and 10 of the orders made by Lansdowne AsJ on 1 October 2014 refusing Mr Giza’s application to become a party; and
(m) Order 4 made by Lansdowne AsJ on 30 November 2015, as to indemnity costs.
The grounds of appeal raise matters including whether:
(n) Lansdowne AsJ misconceived the nature of the orders made by the magistrate;
(o) the magistrate had jurisdiction to make the orders that he did;
(p) Lansdowne AsJ had proceeded in breach of the Charter of Human Rights and Responsibilities 2006, the Bill of Rights 1688, 1 Wm & M sess 2, c 2 (‘Bill of Rights’) and the Magna Carta 1215 (‘Magna Carta’);
(q) the appeal raises matters of public importance of which some examples are given, including (i) whether there was duress in obtaining the sale of unit 34; (ii) whether the respondent had a right to the remedy of specific performance of a contract which was invalid from the time of formation; and (iii) whether unfair advantage had been taken of Mr Vella and Mr Giza;
(r) there had been judicial prejudice and demonstrated bias and a denial of procedural fairness.
Present applications and the grounds of opposition
By application dated 19 January 2015 [sic], Mr Giza has applied for an extension of time to seek leave to appeal from the orders of Hargrave J made 12 September 2014 and 22 September 2014.[6]
[6]The application is in the name of Mr Giza, not Mr Vella.
By application dated 12 January 2015 [sic], Mr Giza has applied for an order that the orders for costs given by Lansdowne AsJ on 30 November 2015 be stayed until the appeal from those and other orders is fully determined.
By notice of opposition dated 29 January 2016, the respondent opposes the extension of time application. The respondent says that (a) Mr Giza knew when documents should have been filed and failed to file them by those dates; (b) Mr Giza failed to file an application for an extension of time to seek leave to appeal within a reasonable time; (c) the appeal of the Magistrates’ Court order made on 6 June 2014 was incompetent; (d) the costs associated with the application for the extension of time are entirely disproportionate to the monetary value of the underlying contract; and (e) the respondent has incurred substantial legal costs to date to meet the appeals, whereas Mr Vella and Mr Giza have at all times been unrepresented.
By notice of opposition dated 22 February 2016, the respondent opposes the stay application. The respondent says that (a) the application for leave to appeal is incompetent; (b) Mr Vella has not himself appealed the orders made by Lansdowne AsJ; (c) Mr Giza does not have standing to appeal the orders made against Mr Vella except by leave of the Court and leave cannot be given because Mr Giza was not and could not have properly been a party to the proceeding; (d) Mr Giza has not demonstrated (i) that there are special or exceptional circumstances existing to justify an order staying the execution of the costs order (particularly given that Mr Giza had not opposed the order for costs made against him); (ii) that a stay of the execution of the costs order was necessary to preserve the subject-matter of the litigation; or (iii) that the refusal of the stay would render any right to appeal nugatory; (e) the prospects of leave to appeal being granted are limited; (f) Mr Giza effectively ran the appeal for Mr Vella and caused significant delay and cost in the conduct of proceedings; (g) the balance of convenience lies in favour of the application being rejected; and (h) Mr Giza has not demonstrated the respondent’s inability to repay the costs in the event that the appeal should succeed.
Material filed by applicant
In support of the present applications, Mr Giza filed an affidavit sworn 12 January 2016, giving a description of the original circumstances surrounding the sale of unit 34 and the various court proceedings and an account of the financial circumstances of Mr Vella and himself. By a second affidavit, sworn 19 January 2016, Mr Giza states that he believes that he attempted to appeal the orders made by Hargrave J in a timely manner in 2014, but that the applications were refused for filing ‘in the context that the trial of the matter has not been completed’.
Material filed by respondent
In opposition to the present applications, the respondent relied upon an affidavit sworn 29 January 2016 by Marcus Christopher Adams, the solicitor for the respondent, and a further affidavit sworn by him on 22 February 2016. In his first affidavit, Mr Adams deposed:
5.The respondent has incurred substantial legal costs as a consequence of meeting the appeals of both Mr Joseph Vella with the assistance of and now being taken directly by the applicant. To date, the respondent has incurred in excess and paid my firm’s costs of more than $50,000 to meet the appeals, in addition to the costs the respondent incurred in respect of the Magistrates’ Court proceeding, whereas Mr Vella and the applicant have at all times been unrepresented. It was recognised by [Lansdowne AsJ] in the Costs Ruling dated 30 November 2015 (‘the Costs Ruling’) in paragraphs 8 and 9 that the appeal was considerably lengthened and complicated by a number of factors solely within the control of Mr Vella and the applicant, and that the costs occasioned by them were, on an objective view, entirely disproportionate to the monetary value of the underlying contract — the underlying value of the contract is in the sum of $15,000 plus GST (paragraph 29 of the Judgment).
6.Further, [Lansdowne AsJ] determined that the appeal was incompetent for the reasons set out in paragraphs 59 to 72 of the Judgment, as recognised in paragraph 5 of the Costs Ruling, and as noted in paragraph 3 of the Other Matters in the General Form of Order dated 30 November 2015.
In his second affidavit, Mr Adams deposed:
I refer to paragraph 5 of my previous affidavit. Further, in relation to the applicant's application to stay the cost orders … made by [Lansdowne AsJ] on 30 November 2015, I say that the solicitor-client costs incurred by the respondent relating to the appeal of the original Magistrates' Court decision are in the sum of $50,487.95, all of which the respondent has paid.
Reply material filed by the applicant
On 8 April 2016, Mr Giza filed an affidavit in reply, stating that: (a) there was evidence that both Hargrave J and Lansdowne AsJ had been biased against him; (b) Mr Adams had not provided any exhibits in support of his claim that the respondent had been charged sums in excess of $50,000 for legal fees; (c) as a result of various matters, including the respondent’s proceedings, Mr Giza and Mr Vella had suffered millions of dollars of damages in relation to their development of recoilless technology; (d) he and Mr Vella have plans for rebuilding their business ventures — and unit 34 is crucial to those plans — which must remain confidential for the present time; and (e) considerable damage (evidenced in photos) had been done to unit 34.
Mr Giza has also said that he attempted to appeal the judgment and orders of Hargrave J in September and October 2014. He was unable to do so, but he adds:
[t]he merit of my intended appeal from the orders of Justice Hargrave has not been tested in an open court process and must be tested further that by the orders of 22/09/2014 Justice Hargrave demonstrated that he misjudged the case by not recognising the complexity of the matter referring such complex case to the determination by the Associate Justice instead of Judge.
By a further affidavit in reply, sworn 14 April 2016, Mr Giza states that Mr Vella has transferred his interest in unit 34 to Mr Giza, and alleges that Hargrave J failed in his duty to assist Mr Giza as a self-represented litigant and that Lansdowne AsJ treated him harshly and unfairly.
Submissions of the applicant
In his application for an extension of time, Mr Giza has said that: (a) by reconfirming the orders of Hargrave J on 30 November 2015, Lansdowne AsJ has made those orders ‘current’; (b) the orders of Hargrave J are an integral part of the orders and judgments made by Lansdowne AsJ on 30 November 2015 and must be dealt with together; (c) the orders represent a miscarriage of justice (which is not specified); (d) the orders arise as a result of demonstrated bias and judicial prejudice; (e) the orders arise as a result of a denial of natural justice; and (f) the orders of Hargrave J arose out of a failure by Hargrave J to recognise that Mr Giza was the actual appellant and ought to be given a right to speak ‘at the trial’.
Mr Giza bases his application to stay the order for costs made by Lansdowne AsJ on grounds which include the following: (a) the costs orders are punitive and offend the Bill of Rights and Magna Carta; (b) the orders breach principles of fairness; (c) there were no exceptional circumstances justifying an order for indemnity costs; (d) denial of procedural fairness; (e) demonstrated bias and judicial prejudice; (f) denial of natural justice; and (g) lack of fairness.
Mr Giza submits more generally that the sale of unit 34 was ‘forced upon’ Mr Vella and himself, describing them as business partners in relation to the land and the goods in storage that were the subject of the deed. He contends that he and Mr Vella had difficulty in making submissions in the Magistrates’ Court and had not been properly assisted. He states that property belonging to him and Mr Vella was destroyed and crimes were committed by persons connected with the respondent, such that it is profoundly unjust that the sale of unity 34 was enforced.
Submissions of the respondent
The respondent contended that Mr Giza could not appeal orders made against Mr Vella except with leave of the Court. Leave cannot be given because Mr Giza was not, and cannot be, a party to the proceeding.
Further, the respondent submitted that the only orders made against Mr Giza were those made:
(s) on 12 September 2014 by Hargrave J, ordering that Mr Giza pay the respondent's costs of the appeal from the decision of Lansdowne AsJ to refuse leave for Mr Giza to represent Mr Vella (Order 2);
(t) on 1 October 2014 by Lansdowne AsJ, ordering that:
(i) Mr Giza's application to be joined as a party to the proceeding and/or that he be substituted as the appellant in the proceeding be refused and his summons filed 10 September 2014 be dismissed (Order 3);
(ii) Mr Giza pay the respondent's costs of Mr Giza's summons (Order 10); and
(u) on 30 November 2015 by Lansdowne AsJ :
(i) confirming Order 2 made by Justice Hargrave on 12 September 2014 (that Mr Giza pay the costs of that appeal) and Order 10 made by Lansdowne AsJ on 1 October 2014 (that Mr Giza pay the respondent's costs of Mr Giza's summons); and
(ii) ordering that Mr Vella and Mr Giza jointly and severally pay the respondent's costs of the appeal on an indemnity basis (Order 4).
Extension of time
In deciding whether an extension of time to seek leave to appeal should be granted, the Court will take into account several factors, including: (a) the length of delay; (b) the reasons for delay; and (c) the extent of any prejudice suffered by the respondent if the extension is granted.[7]
[7]Jackamarra v Krakouer (1998) 195 CLR 516, 519–24 (Brennan CJ and McHugh J).
The Court will not extend time if the appeal ‘is so devoid of merit that it would be futile to do so’.[8]
[8]Muto v Secretary, Department of Planning and Community Development [2013] VSCA 85 [13] (Nettle AP and Neave JA).
The extension of time which Mr Giza seeks is confined to the orders made by Hargrave J. There were three orders. By the first, made on 12 September 2014, Mr Vella’s appeal against the refusal of Lansdowne AsJ to permit Mr Giza to represent him was dismissed. The second order, also made on 12 September 2014, awarded costs in respect of that appeal against Mr Vella and Mr Giza. The third order, made on 22 September 2014, referred the hearing and determination of Mr Vella’s appeal against the orders of the magistrate to Lansdowne AsJ.
In the context of the present application, it is not necessary to decide whether Mr Giza would have standing to pursue his application for leave to appeal against the first of the orders made by Hargrave J, if an extension of time were to be granted. That order concerned only Mr Vella’s claim that Mr Giza ought to be permitted to represent him in the substantive appeal. The point of substance, for the purposes of the extension of time application, is that Mr Vella himself has not sought to appeal the order. Mr Giza plainly would have standing to seek leave to appeal against the costs order made against himself. In that context, Mr Vella’s failure to seek leave to appeal is not relevant.
On the other hand, Mr Giza clearly lacks standing to challenge the order made on 22 September 2014, by which Hargrave J referred Mr Vella’s appeal for hearing and determination by Lansdowne AsJ. He has no interest in that matter other than as Mr Vella’s McKenzie friend or, if he were to succeed in respect of the other orders, as his representative in the proceeding. Mr Vella has not sought to disturb that order. Any application for leave to appeal brought by Mr Giza in respect of this order would be bound to fail, and an extension of time should be refused on that basis.
Mr Giza submitted, among other things, that the orders made by Lansdowne AsJ confirming the costs orders of Hargrave J had the effect of making the costs orders ‘current’. However, whatever operation is attributed to the confirmatory orders, an extension of time is still required if the costs orders made by Hargrave J are to be challenged. While leave to appeal has been sought, within time, in respect of the confirmatory orders, even if they were to be set aside this would leave untouched the operation of the original orders.
Mr Giza must therefore establish a case for extending time since the making of the orders on 12 September 2014. In support of his application, Mr Giza has contended that he had attempted to appeal the order of Hargrave J soon after it was made. Properly, he has drawn the Court’s attention to some of his correspondence with the Court of Appeal Registry soon after the decision of Hargrave J. In particular, he has drawn the Court’s attention to: (a) an email dated 15 October 2014 from Rob Schade, Deputy Prothonotary – Court of Appeal – Civil Registry; (b) a letter dated 22 October 2014 from David Tedhams, Deputy Registrar – Legal; and (c) a letter dated 28 October 2014 from Mr Tedhams.
In his email dated 15 October 2014, Mr Schade pointed out several bases upon which a draft summons and notice of appeal could not be accepted for filing.
In his letter dated 22 October 2014, Mr Tedhams pointed out the manifold deficiencies in the summons and notice of appeal that Mr Giza had attempted to file in the previous week.
It appears that Mr Giza made a further attempt to file documents impeaching the orders of Lansdowne AsJ and Hargrave J. In his letter dated 28 October 2014, Mr Tedhams pointed out the deficiencies that afflicted those documents and why the filing of them could not be accepted.
Mr Giza has not offered any satisfactory explanation as to why he did not seek to remedy the deficiencies that were pointed out to him by the Registry in October 2014 until he filed the present applications in January 2016.
More fundamentally, Mr Giza has not identified any error in the reasons of Hargrave J. A power of attorney can only authorise the attorney to do what the donor of a power can lawfully do by an attorney. In his reasons, Hargrave J said:[9]
[9]Vella v Wybecca Pty Ltd [2014] VSC 443 [20]–[22] (citations omitted).
In this case, as in Waddington, there is a statutory prohibition upon persons who are not qualified as legal practitioners from representing a party to a legal proceeding. Section 2.2.2 of the Legal Profession Act 2004 (Vic) prohibits a person from ‘[engaging] in legal practice’ unless the person is a legal practitioner. Section 2.2.2(2)(f) creates an exception to this rule where the person represents another person in a proceeding by another law of the jurisdiction or by leave of the relevant court or tribunal.
In Waddington, Emerton J held that Mr McDonald’s proposed representation of Mr Waddington would amount to him unlawfully engaging in legal practice for the purposes of the Legal Profession Act. That conclusion was expressly approved by the Court of Appeal in Waddington v Dandenong Magistrates’ Court & Anor, where Nettle JA stated:
I do not consider that the judge erred in the manner alleged. Possibly, an occasional honorary appearance by a lay spokesperson on behalf of a party would not without more rise to the level of engaging in legal practice. There is some support for that idea in the observations by Gowans J in Hubbard that, so long as a lay spokesman did not purport to appear as a solicitor, he might not be said to be acting as a solicitor. But, as the judge said, the idea of ‘engag[ing] in legal practice’ is considerably broader than that of ‘acting as a solicitor’. And that is borne out by the implication which derives from s 2.2.2(3) of the Legal Profession Act 2004 (Vic) that, but for its provisions, such an appearance could amount to engaging in legal practice within the meaning of s 2.2.2(2)(f).
Moreover, even if such an appearance did not rise to the level of engaging in legal practice, that would not avail the appellant in this case. It remains that a lay advocate has no right of audience other than is conferred by statute or in the exercise of the court’s discretion. Accordingly, whether or not an appearance by an occasional lay advocate amounts to carrying on practice, that kind of lay advocate’s entitlement to appear remains at the court’s discretion.
In this case, Mr Giza does not just seek to represent Mr Vella at oral hearings. He has purported to act as, in effect, his solicitor in the proceeding, notwithstanding he is not entitled to do so. Both forms of representation are prohibited by the Legal Profession Act.
Nothing advanced by Mr Giza impeached this reasoning. Further, he did not impeach the finding of Hargrave J that there was no fault in the reasoning by which, as a matter of discretion, Lansdowne AsJ refused to permit Mr Giza to represent Mr Vella in the proceeding generally.
The claims of wrongdoing by the respondent which are made by Mr Giza, if they have merit, do not undermine the reasoning of Hargrave J. Even if the contract for the sale of unit 34 were executed under duress (which was alleged but not proved before the magistrate), Mr Giza was not a party to that contract and, as Hargrave J held, he had no right to appear or to institute proceedings on Mr Vella’s behalf in relation to it. As already mentioned, despite being the party to the proceeding, Mr Vella has not sought to disturb the order of Hargrave J refusing leave to Mr Giza to represent him. This consideration would weigh heavily against granting leave to Mr Giza to pursue that course himself.
The costs orders that were made by Hargrave J were the natural consequence of the unsuccessful attempt by Mr Giza to initiate an appeal on behalf of Mr Vella, which he had no entitlement to do. No reason has been shown as to why an application for leave to appeal against those orders would have any prospect of success.
Mr Giza’s application for leave to appeal against the orders of Hargrave J has no prospects of success. Accordingly, the application for leave to appeal out of time should be refused.
Stay
In respect of the application to stay execution of the order for costs made by Lansdowne AsJ, r 64.39 of the Supreme Court (General Civil Procedure) Rules 2015 provides:
64.39 Stay of execution
Except so far as the Court of Appeal otherwise orders—
(a)an application for leave to appeal or appeal shall not operate as a stay of execution or of proceedings under the decision appealed from; and
(b) no intermediate act or step shall be invalidated.
Rule 66.16 provides that the Court ‘may stay execution of a judgment’.
In Cross Country Realty Victoria Pty Ltd v Ubertas 350 William Street Pty Ltd, this Court said:[10]
The Court enjoys a wide discretion to grant a stay and, upon an application for such an order, all relevant factors should be considered. However, ordinarily, a successful party is entitled to the benefit of a judgment and the presumption that the judgment is correct. An applicant for a stay therefore bears the onus of demonstrating that a stay is justified.
The power to order a stay of execution is to be exercised only where special or exceptional circumstances exist. Such circumstances will exist where there is a real risk that the appeal, if successful, would be rendered nugatory. Generally this will occur when, because of the respondent's financial state, there is no reasonable prospect of recovering moneys paid pursuant to the judgment at first instance. However, special circumstances are not limited to that situation and will exist where, for whatever reason, there is a real risk that it will not be possible for a successful appellant to be restored substantially to his or her former position if the judgment is executed.
[10][2015] VSCA 347 [81]–[82] (Kyrou and McLeish JJA) (citations omitted).
If there is a real risk that execution of a costs order would prevent an appellant from being restored substantially to his or her former position if the appeal is successful, this may qualify as special or exceptional circumstances justifying a stay of that costs order.[11]
[11]Saville v Hallmarc Constructions Pty Ltd [2015] VSCA 144 [23] (Tate and McLeish JJA).
Mr Giza has not pointed to any special or exceptional circumstances that would justify the making of a stay order in the present case. He has not suggested that a stay is necessary to preserve the subject-matter of the litigation; nor has he suggested that, unless a stay is granted, he would be deprived of the means of prosecuting the appeal. Further, Mr Giza has not suggested that, if the costs order is executed, the respondent would be unable to repay costs in the event that an appeal was ultimately successful.
Accordingly, the application for an order that the costs order of Lansdowne AsJ be stayed should be refused.
Conclusion
Mr Giza’s submissions in these applications concentrated on the wrongdoing that he asserted against the respondent, which he submitted undermined the contract whose enforcement the magistrate ordered. But, despite his asserted joint business enterprise with Mr Vella, Mr Giza was never a party to that contract. Mr Vella has not sought to pursue the claims in question. Mr Giza has no entitlement to do that on Mr Vella’s behalf.
The proceedings the subject of the present applications concern only the contract for the sale by Mr Vella of unit 34. If Mr Giza has remedies against the respondent or other persons by virtue of the wrongdoing he alleges, they cannot be pursued in the present proceedings.
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