Karam v Lennon Mazzeo (No 2)
[2024] VSC 526
•30 August 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
GENERAL LIST
S CI 2011 03123
| AKRAM KARAM | Plaintiff |
| v | |
| LENNON MAZZEO | Defendant |
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JUDGE: | GRAY J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers, pursuant to s 63 of the Vexatious Proceedings Act 2014 |
DATE OF JUDGMENT: | 30 August 2024 |
CASE MAY BE CITED AS: | Karam v Lennon Mazzeo (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 526 |
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PRACTICE AND PROCEDURE — Extended litigation restraint order — Application by plaintiff for leave to appeal from summary judgment for defendant — No reasonable grounds for proposed appeal — Application dismissed — Vexatious Proceedings Act 2014 ss 3, 17, 52, 53.
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APPEARANCES: | Solicitors |
| For the Plaintiff | Self-represented litigant |
| For the Defendant | Lennon Mazzeo |
TABLE OF CONTENTS
Overview.............................................................................................................................................. 1
Procedural history.............................................................................................................................. 1
Legislative context............................................................................................................................. 3
Consideration of leave application................................................................................................. 5
Grounds.......................................................................................................................................... 5
Applicable principles.................................................................................................................... 7
Analysis and conclusions............................................................................................................. 8
Ground 2 — the merits / prospects of the appeal.......................................................... 8
Ground 1.5 — advocates’ immunity............................................................................... 10
Failure of grounds relating to Lansdowne AsJ’s assessment of prospects............... 12
Grounds 1.1 to 1.3 — procedural fairness complaints................................................. 12
Ground 1.4 — other alleged procedural defects........................................................... 13
Ground 3............................................................................................................................. 14
Conclusion......................................................................................................................................... 15
HIS HONOUR:
Overview
The plaintiff, when subject to an extended litigation restraint order, applied for leave to commence an appeal from a judgment of an Associate Judge of the Court.
The leave application has remained on foot for many years. The extended litigation restraint order has since expired. However, because Mr Karam made the leave application while it was in force, for completeness it is necessary to determine the leave application. Mr Karam has acquiesced in the leave application being determined on the papers.
I have decided that leave to commence the proposed appeal should not be granted, because the appeal has no real prospect of success, and is not brought on reasonable grounds. The plaintiff’s leave application will be dismissed.
Procedural history
I adopt in full the description of the proceeding and its procedural history, as set out in the reasons for judgment of Lansdowne AsJ from which the plaintiff, Mr Karam, seeks leave to commence an appeal.[1] The paragraphs that follow are not intended to be comprehensive.
[1]Karam v Mazzeo [2016] VSC 813, [1]–[15].
In the statement of claim in this proceeding, Mr Karam sought damages against his former lawyers, Lennon Mazzeo, alleging negligence in their conduct of his claim for common law damages for workplace injury.
On 20 May 2016, in a related proceeding,[2] J Forrest J ordered pursuant to the Vexatious Proceedings Act 2014 (VP Act) s 17 that:
Mr Karam must not commence any proceeding, including instituting any appeal against Lennon Mazzeo without leave of the Supreme Court or the Victorian court or tribunal in which the proceeding is commenced for a period of five years.
[2]Karam v Palmone Shoes Pty Ltd S CI 2009 09926: Karam v Palmone Shoes Pty Ltd (No 3) [2016] VSC 228.
I refer to this order as the extended litigation restraint order.
After a hearing on 28 June 2016 at which Mr Karam did not appear, on 22 December 2016, Lansdowne AsJ gave summary judgment for the defendant in this proceeding.
As a result of the extended litigation restraint order, Mr Karam required the leave of the Court to commence a timely appeal against the judgment of Lansdowne AsJ.
Mr Karam filed an application in February 2017 under s 52(1) of the VP Act for leave to commence an appeal against the judgment of Lansdowne AsJ (the leave application).
The leave application was the subject of mentions before Ginnane J on 2 August 2017 and 30 August 2017. By orders dated 7 August 2017, his Honour directed Mr Karam to serve copies of the leave application on Lennon Mazzeo by 16 August 2017.
The leave application then came before Cavanough J in 2018. On 5 June 2018 and 11 July 2018, his Honour made orders requiring Mr Karam to serve notice of the leave application on the Attorney-General of the State of Victoria and on Lennon Mazzeo. On 4 February 2019, Mr Karam filed an affidavit indicating that he had on 1 February 2019 served by mail notices to the Attorney-General and to Lennon Mazzeo in accordance with his Honour’s orders.
Following a directions hearing, Judicial Registrar Clayton made further timetabling orders on 28 March 2019. At that directions hearing, Mr Karam advised the Court that he was in ill-health and unable to undertake any steps on his own behalf. Mr Karam sought to have the leave application adjourned until such time as he was able to retain lawyers to manage the case. However, Mr Karam also said that he had already filed all his material and submissions for the leave application and did not intend to file further materials.[3] Judicial Registrar Clayton noted that the appeal had a long history and that there had been ample time for the plaintiff to seek legal representation. She refused an adjournment on that occasion.
[3]Orders of Judicial Registrar Clayton dated 28 March 2019.
Judicial Registrar Clayton later extended the timetable for filing of material by orders made on 4 July 2019. Judicial Registrar Clayton directed that the application be determined on the papers by a judge not before 29 November 2019.[4]
[4]Orders of Judicial Registrar Clayton dated 4 July 2019.
It does not appear that any documents have been received pursuant to Judicial Registrar Clayton’s timetabling orders. The extended date for filing of submissions has now long passed, being 29 November 2019.
I am satisfied that both parties were aware of the timetabling orders, having attended a directions hearing on 28 March 2019, following which the initial timetabling orders were made.[5] I infer that neither party decided to file submissions, noting that Mr Karam had for his part indicated as much at a directions hearing.[6] I am also satisfied that both parties acquiesced in the mode of determination of the leave application being determination on the papers.
[5]The orders of Judicial Registrar Clayton dated 4 July 2019, extending the timetable for submissions, were made on the papers without the attendance of the parties.
[6]See Orders of Judicial Registrar Clayton dated 28 March 2019, recital G.
Legislative context
The extended litigation restraint order was made pursuant to s 17 of the VP Act. That provision relevantly states:
(1) A Court or VCAT may make an extended litigation restraint order against a person if the Court or VCAT is satisfied that the person has frequently commenced or conducted vexatious proceedings—
(a) against a person or other entity; or
(b) in relation to a matter.
Part 8 div 2 of the VP Act provides for an application for leave to proceed under an extended litigation restraint order. Section 52 relevantly provides:[7]
[7]This provision is mirrored by s 54, which relates to general litigation restraint orders (see VP Act pt 4).
52 Application for leave to commence or continue proceeding
(1) Subject to subsection (2), a person who is subject to an extended litigation restraint order may apply to a Victorian court or tribunal for leave to commence or continue a proceeding—
(a) against a person or other entity protected by the order; or
(b) in respect of a matter described in the order.
…
(3) Subject to subsection (4), an application under subsection (1) or (2) must be made to the Victorian court or tribunal that made the extended litigation restraint order.
(4) If the extended litigation restraint order was made by the Supreme Court and the order does not provide otherwise, an application under subsection (1) must be made to the Victorian court or tribunal that would hear the proceeding to which the application for leave relates.
Section 53 of the VP Act relevantly provides:[8]
[8]This provision is mirrored by s 55, which relates to general litigation restraint orders (see VP Act pt 4).
53 Court or VCAT may grant leave to commence or continue proceeding
On an application under section 52, a Victorian court or tribunal may grant a person who is subject to an extended litigation restraint order leave to commence or continue a proceeding against a person or other entity protected by the order, a child of a person protected by the order, or in respect of a matter described in the order, if the Victorian court or tribunal is satisfied that—
(a) the proceeding is not a vexatious proceeding; and
(b) there are reasonable grounds for the proceeding.
The term ‘vexatious proceeding’ is defined in s 3 of the VP Act and includes:
(a) a proceeding that is an abuse of the process of a court or tribunal;
(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
(c) a proceeding commenced or pursued without reasonable grounds;
(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
Consideration of leave application
Grounds
The leave application was commenced by Mr Karam’s written application filed 17 February 2017. Broadly speaking, in this document Mr Karam contends that the issuing of Lansdowne AsJ’s judgment in December 2016 following a hearing in June 2016 was ‘illegal’ for several reasons, that Mr Karam’s claim in the proceeding is meritorious, and that not allowing him to continue the proceeding as a result of the extended litigation restraint order would be against the interests of justice because of certain alleged defects in the making of the extended litigation restraint order.[9]
[9]Application for Leave to Continue Proceeding by Person Subject to Extended Litigation Restraint Order dated 16 February 2017 and filed 17 February 2017.
In the absence of submissions from Mr Karam in support of the leave application, I rely on the substantive text of his written application, reproduced below:
…
In accordance with section 53 of that Act, I contend that this proceeding is not vexatious proceeding and that there are reasonable grounds which justify that a leave to appeal be given when:
1. Issuing the Judgement by Her Honour Associate Judge Lansdowne on 28 June 2016 after nearly 5 month of the hearing is illegal when:
1.1 Listing a hearing on 28 June 2016 was a result of misconduct and a biased action by her Honour Associate Judge Lansdowne at the hearing on 26 April 2016, when I had been prejudiced and exposed to a trick and a plot by her Honour for the sake to protect the other party and helping him to avoid justice, as the affidavit dated 2 May 2016 provided.
1.2. I have not been given any reasonable notice by the Court about the hearing on 26 June 2016 by Judge J Forrest to prepare for the hearing, when the Court only adviced [sic] me about a hearing on 26 June 2016 by Her Honour Associate Judge Lansdowne, which was a manifest evidence of an abuse of process, as every party entitled to be given by the Court a notice about the date of the hearing to attend, as the affidavit dated 2 May 2016 provided.
1.3. Her Honour Associate Judge Lansdowne was unreasonable by conducting of the hearing on 28 June 2016 which was against the interest of justice when:
a. On 14 June 2016, I disqualified her Honour Associate Judge Lansdowne to conduct the hearing on 28 June 2016 when her honour was biased, not impartial and caused a prejudice to me, when I attended the hearing on 26 April 2016 and I sought an adjournment of my claim against Lennon Mazzeo of No. S Cl 2011 3123, but her Honour refused unreasonably despite the defendant Lennon Mazzeo failed to attend at the hearing on 26 June 2016, as the affidavit dated 2 May 2016 provided, and the notice of advice provided in exhibit “NEG 5” of my supporting affidavit dated 21 June 2016.
b. My none attendance at the hearing on 28 June 2016 was reasonable as stated in the above paragraphs.
1.4. The Summons by Lennon Mazzeo dated 14 June 2016 for a summary judgement to dismiss my proceeding was illegal and constitute an abuse of process of the Court when:
a. The Summons by Lennon Mazzeo for a summary judgement was illegal as the paragraph 1 of my supporting affidavit dated 21 June 2016.
b. The Summons by Lennon Mazzeo was rejected to be received by the applicant as it was illegal as the letter provided in exhibit “NEG 4” of my supporting affidavit dated 21 June 2016.
c. My professional negligence claim of No. S Cl 2011 3123 against the respondent ought to be determined after the determination of the cancer claim for weekly payment no. X036036 I 8 which was transferred to the County Court as provided in “NEG 3” of my supporting affidavit dated 21 June 2016, when the proceeding No. S Cl 2011 3123 has been adjourned by Her Honour Associate Judge Lansdowne for several times for the purpose to be determined after determination the cancer claim for weekly payment.
1.5. The dismissal by Her Honour Associate Judge Lansdowne of my negligence claim of No. S Cl 2011 3123 against the respondent Lennon Mazzeo Lawyers on the basis that the respondent having taken the defence of the advocates immunity does not protect the respondent from the professional negligence when:
a. Chapter 5 of the Legal Profession Uniform Legislation entitle me for compensation order for professional negligence as Section 263(1) of the Legal Profession Uniform Law provided that: “A provision of this Law or any other applicable law that protects a person from any action, liability, claim or demand in connection with any conduct of the person does not affect the application of this Chapter to the person in respect of the conduct.”
b. Pursuant to Section 29 of the Civil Procedure Act 2010, I have substantial right for an order for compensation as a result of suffering a loss by Lennon Mazzeo’s breach of the overacting obligations in conducting the litigation of my matter.
2. My proceeding No. S Cl 2011 3123 by writ and statement of claim has merits as the affidavit in support dated 22 July 2011 provided, and the statement of claim in exhibit “NEG 2” of my supporting affidavit date 21 June 2016 provided, which justify that my proceeding of a professional negligence claim against the respondent ought to be given a fair hearing to be able to provide my evidences and not to be dismissed by a summary judgment that been made illegally by summons dated 14 June 2016 by the respondent Lennon Mazzeo.
3. Not allowing me to continue my proceeding No. S Cl 2009 9926 as a result of the effect of the order by his Honour Judge J Forrest dated 20 May 2016 for extended litigation restrain order, will be against the interest of justice when:
3.1. The order by his Honour Judge J Forrest dated 20 May 2016 for extended litigation restrain order ought to be set aside when:
a. The order is ambiguous, illegal and unreasonable and was made in my reasonable absence, also his Honour Judge J Forrest not qualified to make any order in relation to my matter, as provided in the [Application to Vary or Revoke the Extended Litigation Restrain Order] dated 16 February 2017 and the supporting affidavit dated 14 February 2017.
b. His Honour Judge J Forrest was manifestly in error in making the extended litigation restrain order on 20 May 2016 on an application by Lennon Mazzeo when:
·Making the applications by Lennon Mazzeo dated 19 November 2015, 23 March 2016 and 7 April 2016 are an abuse of process.
·The applications by Lennon Mazzeo dated 19 November 2015, 23 March 2016 and 7 April 2016 have no merits, as provided in the [Application to Vary or Revoke the Extended Litigation Restrain Order] dated 16 February 2017 and the supporting affidavit dated 14 February 2017.
I have also considered Mr Karam’s affidavits in this proceeding dated 22 July 2011, 2 May 2016, and 21 June 2016 referred to in the first and second grounds above.
Applicable principles
Pursuant to s 53 of the VP Act, in order to grant leave in this proceeding, I must be satisfied both that the proceeding is not a vexatious proceeding, and that there are reasonable grounds for the proceeding.
As an applicant for leave, the onus is on Mr Karam to establish both of these elements.[10]
[10]Knight v Thomas [2015] VSC 283, [25].
There is an element of overlap between these two elements, because a proceeding ‘commenced or pursued without reasonable grounds’ is one of the categories of the definition of ‘vexatious proceeding’.
There are reasonable grounds for a proposed proceeding if the applicant for leave establishes a ‘real or reasonable prospect’ that the claim for relief can succeed.[11]
[11]Knight v Corrections Commissioner [2016] VSC 50, [97], [100].
Analysis and conclusions
Mr Karam advances three broad grounds in support of his assertion that the proceeding is not vexatious and that there are reasonable grounds to support it. The details of each are reproduced at paragraph 22 above. I will address whether each demonstrates that the proposed appeal has reasonable grounds by reason of there being a real or reasonable prospect of success, starting with the second ground.
Ground 2 — the merits / prospects of the appeal
In the second ground of his application, the plaintiff contends that the proceeding has ‘merits’, such that it ‘ought to be given a fair hearing to be able to provide my evidences and not be dismissed by a summary judgment that been made illegally’.
Summary judgment was available to be given pursuant to s 63 of the Civil Procedure Act 2010 (CPA) if the plaintiff’s claim had ‘no real prospect of success’. The question was whether the party against whom the judgment is sought had a ‘real’, as opposed to a ‘fanciful’, chance of success.[12]
[12]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, [35] (Warren CJ and Nettle JA).
The Court retained a discretion pursuant to s 64 of the CPA to refuse to give summary judgment, even where the party against whom it was sought had no real prospect of success, in either of two circumstances:
(a) It is not in the interests of justice to grant summary judgment (s 64(a) CPA); or
(b) The dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b) CPA).
In his statement of claim dated 4 April 2011 and filed 20 June 2011, the plaintiff alleged 16 particulars of negligence as to the allegation of breach of duty of care on the part of the defendant. Lansdowne AsJ considered each of these particulars in detail in her judgment from [65]–[109]. Her Honour went on to consider the particulars of loss and damage at [110]–[112] of those reasons.
Putting to one side her Honour’s application of advocates’ immunity, which I address under the next heading below, Mr Karam advances no other submission impugning any aspect of her Honour’s reasoning as to the merits of the professional negligence claim. I am not satisfied that there is any real prospect, or a reasonable prospect, of any error being made out that might affect her Honour’s conclusion that the claim had no real prospect of success.
Her Honour decided not to exercise her discretion to refuse summary judgment. An appeal from this aspect of her Honour’s decision would depend on a vitiating factor of the kind identified in House v The King.[13] It must appear that some error has been made in the exercise of the discretion. That is, the primary tribunal must have acted upon a wrong principle,[14] allowed extraneous or irrelevant matters to guide or affect it, not taken into account some material consideration,[15] have mistaken the facts,[16] or have reached a conclusion that is so unreasonable or plainly unjust such that it may be inferred that there has been a failure to properly exercise the relevant discretion. This latter kind of error does not require absolute precision or certainty in identifying the exact error.[17]
[13]Re IPO Wealth Holdings No 2 Pty Ltd (in liq); Mawhinney v Giasoumi [2022] VSC 199, [53]–[57] (Elliott J) (Giasoumi).
[14]Giasoumi [57(1)].
[15]Giasoumi [57(3)].
[16]Giasoumi [57(2)].
[17]Giasoumi [55].
The material before me does not establish any basis for thinking that an appeal from her Honour’s discretionary decision not to refuse summary judgment might succeed. For example, Mr Karam has not demonstrated that her Honour misunderstood CPA s 64(a) or (b), or that her discretion miscarried in any other way. In no way could it be said that Mr Karam had an obvious case that it was not in the interests of justice to grant summary judgment, or that a full hearing on the merits of the matter was appropriate. It cannot be inferred that her Honour’s decision miscarried.
For these reasons, I conclude that the second ground has no real prospect of success, and no reasonable prospect of success.
Ground 1.5 — advocates’ immunity
As already noted, ground 1 of the leave application is couched as a contention that the issuing of Lansdowne AsJ’s judgment was ‘illegal’.
In the fifth sub-ground, ground 1.5, the plaintiff contended in effect that Lansdowne AsJ erred insofar as her Honour’s summary dismissal of his negligence claim against Lennon Mazzeo relied on Lennon Mazzeo’s invocations of advocates’ immunity. Mr Karam contends that advocates’ immunity does not protect lawyers from a claim of professional negligence, in light of ch 5 of the Legal Profession Uniform Legislation and s 29 of the CPA.
In particular, Mr Karam cites s 263(1) of the Legal Profession Uniform Law Application Act 2014 (Uniform Law), which states:
A provision of this Law or any other applicable law that protects a person from any action, liability, claim or demand in connection with any conduct of the person does not affect the application of this Chapter to the person in respect of the conduct.
The plaintiff submits that ch 5 entitles him to a compensation order for professional negligence.
The difficulty for Mr Karam is that his writ and statement of claim in this proceeding did not advance a claim for a compensation order under ch 5 of the Uniform Law to which s 263 might have applied. In certain circumstances, that chapter permits complaints to be made to the designated local regulatory authority (here, the Victorian Legal Services Commissioner) pursuant to pt 5.2, and s 263 would apply to the processing of such a complaint. But s 263 did not apply to Mr Karam’s claim in this proceeding, which was a common law claim in negligence.
Section 29 of the CPA provides as follows:
29 Court may make certain orders
(1) If a court is satisfied that, on the balance of probabilities, a person has contravened any overarching obligation, the court may make any order it considers appropriate in the interests of justice …
The plaintiff submits that, pursuant to CPA s 29, he has a ‘substantial right for an order of compensation as a result of suffering a loss by Lennon Mazzeo’s breach of the overacting [sic] obligations in conducting the litigation of my matter’.
The plaintiff’s application provides no further explanation as to the relevance of s 263 of the Uniform Law or s 29 of the CPA. For example, there is no explanation of whether or how they might be said to operate together, leading to any abrogation of advocates’ immunity. It is far from obvious that they could operate in such a way in this case.
In the absence of any submissions explaining this point, I do not consider that the plaintiff’s application raises any questions as to the correctness of her Honour’s reasoning in relation to advocates’ immunity.
I conclude that ground 1.5 has no real or reasonable prospect of success.
Failure of grounds relating to Lansdowne AsJ’s assessment of prospects
The only grounds challenging Lansdowne AsJ’s assessment of the prospects of Mr Karam’s claim against Lennon Mazzone are grounds 1.5 and 2 of the leave application. As explained in the two preceding sections of these reasons, those challenges have no real or reasonable prospects of success.
The failure of ground 1.5 and ground 2 of the leave application lead me to conclude that Mr Karam has not demonstrated any basis for doubting the correctness of her Honour’s assessment that Mr Karam’s claim against Lennon Mazzeo had no real prospects and was liable to summary dismissal.
This has implications for the materiality of the other grounds of the leave application, as I explain below.
Grounds 1.1 to 1.3 — procedural fairness complaints
As already noted, ground 1 of the leave application is couched as a contention that the issuing of Lansdowne AsJ’s judgment was ‘illegal’. It is supported by five sub‑grounds. I have already addressed the last of them — ground 1.5.
The first three of them, grounds 1.1 to 1.3, amount to claims of denial of procedural fairness arising from events and circumstances alleged by Mr Karam in the lead-up to the judgment of Lansdowne AsJ.
A claim of denial of procedural fairness will only lead to relief if it could have affected the outcome. The outcome of the summary dismissal application turned on her Honour’s assessment of the prospects of the claim set out in the statement of claim. Her Honour analysed Mr Karam’s statement of claim and the available evidence, and concluded that summary judgment should be entered for the defendant because Mr Karam’s claim had no real prospect of success.[18] Mr Karam has not successfully impugned any aspect of her Honour’s reasoning about the weaknesses of his claim.
[18]Karam v Mazzeo [2016] VSC 813 [46]–[112].
Any procedural unfairness that might have occurred cannot, in these circumstances, lead to a different outcome on the key question of whether the proceeding had real prospects of success.
I conclude that grounds 1.1, 1.2 and 1.3 have no real or reasonable prospects of success, because even if established they could not result in a different outcome.
In saying this, I wish to stress that I have not found that any of the events alleged by Mr Karam occurred as he claimed, or that there was any unfairness to him. My decision is that any such alleged unfairness could not have resulted in a different outcome.
Ground 1.4 — other alleged procedural defects
Mr Karam contends that the defendant’s summons dated 14 June 2016 for summary judgment was illegal and an abuse of process by reason of s 4.3.2 of the Legal Profession Act 2004.[19] At the time that this proceeding commenced, that section provided as follows:
An Australian legal practitioner must not commence proceedings in relation to the subject matter of a civil dispute between a person and the practice or practitioner after the practice or practitioner has received notice under s 4.2.8 of a civil complaint about the conduct of the practice or practitioner in respect of the dispute.
[19]Application for Leave to Continue Proceeding by Person Subject to Extended Litigation Restraint Order dated 16 February 2017 and filed 17 February 2017, [1.4(a)]; ‘Affidavit in Response of the Application by Lennon Mazzeo dated 14 June 2016’ of Akram Karam dated 21 June 2016, [1].
The plaintiff refers to a complaint he issued to the Legal Services Commissioner on 23 February 2011 against Lennon Mazzeo.[20]
[20]‘Affidavit in Response of the Application by Lennon Mazzeo dated 14 June 2016’ of Akram Karam dated 21 June 2016, [1(a)].
Lansdowne AsJ addressed this issue in her reasons for judgment.[21] I respectfully agree with her Honour’s reasons and conclusion on this issue. Mr Karam’s argument is misconceived. Section 4.3.2 prohibits a practitioner from commencing proceedings. The application by Lennon Mazzeo by summons for summary judgment was not the commencement of a proceeding — it was an application made within a proceeding that had been commenced by Mr Karam.
[21]Karam v Mazzeo [2016] VSC 813, [31]–[33].
Further, it is immaterial that Mr Karam ‘reject[ed] to receive’ the defendant’s summons.[22]
[22]See Application for Leave to Continue Proceeding by Person Subject to Extended Litigation Restraint Order dated 16 February 2017 and filed 17 February 2017, [1.4(b)]; Exhibit NEG-4 to ‘Affidavit in Response of the Application by Lennon Mazzeo dated 14 June 2016’ of Akram Karam dated 21 June 2016.
Mr Karam also submitted that the proceeding ought to be determined after the determination of his claim in the County Court, in which he sought weekly payments and medical expenses relating to his cancer. He stated that the proceeding had been adjourned by Lansdowne AsJ several times to allow the County Court claim to be determined first.
Her Honour addressed this issue in her judgment,[23] noting that it was because of that proceeding that Lennon Mazzeo had not opposed Mr Karam’s repeated applications for adjournment. Her Honour accepted Lennon Mazzeo’s submission at the hearing on 28 June 2015 that, even if there were some connection between the two proceedings in terms of loss — such that success in that claim might diminish the loss he would seek in the present proceeding, this was not a barrier to determining the application for summary judgment. I agree with this submission and her Honour’s conclusion.
[23]Karam v Mazzeo [2016] VSC 813, [34]–[35].
I conclude that ground 1.4 has no real or reasonable prospect of success.
Ground 3
In the third and final ground of his application, the plaintiff essentially disputes the extended litigation restraint order, contending that the effect of that order in preventing the appeal is against the interests of justice. The plaintiff further contends that the extended litigation restraint order is ‘ambiguous, illegal and unreasonable’ and that J Forrest J was not qualified to make any such order and was ‘manifestly in error’ in doing so.
I do not consider that such consideration of the order made by J Forrest J is permissible or appropriate in the context of the present application. The plaintiff has made an application under s 52 of the VP Act. Section 53 of the VP Act guides the Court’s consideration of such an application. This exercise does not allow me to collaterally review the correctness or propriety of the litigation restraint order from which leave to continue or commence a proceeding is sought. The appellate process was the only appropriate means for that to occur.
Ground 3 of the plaintiff’s application does not demonstrate any reasonable grounds to justify leave to appeal from the summary judgment given by Lansdowne AsJ in the proceeding.
Conclusion
For the purposes of s 53 of the VP Act, I am not satisfied that the plaintiff has discharged the onus of establishing that the proposed appeal would not be a ‘vexatious proceeding’, nor that there are ‘reasonable grounds’ for the proposed appeal.
I will refuse the application.
I will refuse paragraph 2 of the orders sought by the plaintiff. I can see no basis for departing from the usual rule that costs follow the event.
The standard order as to costs will apply.
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