Richard Giza v Waybecca Pty Ltd

[2016] VSCA 155

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0002

RICHARD GIZA	Applicant
v
WAYBECCA PTY LTD	Respondent

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	5 July 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 155
JUDGMENT APPEALED FROM:	Order made by Judicial Registrar of the Court of Appeal on 25 May 2016

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PRACTICE AND PROCEDURE — Procedural orders and directions made by Judicial Registrar pursuant to r 64.42(1) of the Supreme Court (General Civil Procedure) Rules 2015 — Application made under r 64.42(8) to set aside orders and directions — Application refused.

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APPEARANCES:	Counsel	Solicitors
No appearances

KYROU JA:

1. This is an application under r 64.42(8) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) for an order to set aside an order made by the Judicial Registrar of the Court of Appeal (‘Registrar’) on 25 May 2016 (‘impugned order’).

1. The impugned order was made to facilitate the progress of an application for leave to appeal which the applicant filed on 16 January 2016 and subsequently amended on 22 January 2016.  The dispute that gave rise to the application for leave to appeal concerns a contract dated 7 December 2012 for the sale of a parking lot for the amount of $15,000 plus GST.  Details of the dispute are set out in the reasons for judgment of Hargrave J dated 12 September 2014 in Vella v Waybecca Pty Ltd,[1] the reasons for judgment of Lansdowne AsJ dated 30 November 2015 in Vella v Waybecca Pty Ltd [No 2][2] and the reasons for judgment of this Court dated 22 April 2016 in Giza v Waybecca Pty Ltd.[3]

   [1][2014] VSC 443.

   [2][2015] VSC 678.

   [3][2016] VSCA 78.

1. The application for leave to appeal sought leave to appeal in respect of a number of orders, including orders made by Hargrave J on 12 and 22 September 2015.  As the application was filed well after those orders were made, on 19 January 2016 the applicant sought an extension of time.  The application for an extension of time was refused by this Court on 22 April 2016.

1. The application for leave to appeal referred to an application for a stay.  That was a reference to an application for a stay of costs orders made by Lansdowne AsJ on 30 November 2015.  The application was refused by this Court on 22 April 2016.

1. Paragraphs 1 and 2 of the impugned order required the applicant to amend his application for leave to appeal and his written case to delete references to the orders of Hargrave J dated 12 and 22 September 2014 and to a stay of the costs orders made by Lansdowne AsJ on 30 November 2015.  Paragraph 1 also required correction of two typographical errors in the application for leave to appeal and renumbering of paragraphs in that document consequent upon the required deletions. 

1. Paragraphs 3 to 5 of the impugned order dealt with: amendments to the draft leave application book index; lodgement of the amended application for leave to appeal, written case and draft leave application book index; service of documents on the respondent; and filing of a list of persons served. 

1. Paragraphs 6 to 10 of the impugned order dealt with the filing and service of documents by the respondent. 

1. Paragraph 11 of the impugned order dealt with the filing by the applicant of an agreed leave application  book index and an agreed summary.

1. Paragraph 12 of the impugned order provided that costs are costs in the application for leave to appeal.

1. Paragraph 13 of the impugned order granted to the parties liberty to apply.

1. The application to set aside the impugned order was drafted by the applicant who is not legally qualified. The application was supported by detailed submissions and an affidavit sworn by the applicant. The application relied on 14 grounds, including: that the impugned order was not confined to procedural orders or directions as required by r 64.42(1) of the Rules; that the deletions required by the impugned order would deprive the application for leave to appeal of proper context; that the order made by this Court on 22 April 2016 is the subject of an application for special leave to appeal to the High Court; that the Registrar abused his power, acted in bad faith, demonstrated bias and breached the rules of natural justice; and that the impugned order contravened ss 51(xxiv), 109 and 117 of the Commonwealth Constitution and a legal service direction made under s 55ZF of the Judiciary Act 1903 (Cth).

1. In my opinion, the application under r 64.42(8) of the Rules is devoid of any substance and must be refused.

1. Paragraphs 1 and 2 of the impugned order are necessary in the light of this Court’s refusal to grant an extension of time to appeal against the orders made by Hargrave J on 12 and 22 September 2015 and to refuse a stay of the costs orders made by Lansdowne As J on 30 November 2015.  As this Court’s order has the effect that there is no extant application for leave to appeal in respect of the orders of Hargrave J or an application for a stay in respect of Lansdowne AsJ’s order, it is appropriate that the application for leave to appeal be updated to reflect this Court’s order.  That order is binding on the parties and will remain so unless and until it is stayed or set aside by the High Court.  An application for special leave to appeal of itself does not operate as a stay of that order.[4] 

   [4]High Court Rules 2004 (Cth) r 42.09.

1. The other paragraphs of the impugned order are either consequential on paras 1 and 2 of the impugned order or contain standard procedural orders or directions for the proper management of the application for leave to appeal.  There is no basis for any complaint in respect of those orders or directions.