Rozenblit v Vainer & Anor

This matter concerned an application for special leave to appeal to the High Court of Australia. The applicant sought to challenge a decision of the Victorian Court of Appeal that had affirmed an order staying his legal proceedings pending payment of outstanding costs orders. The dispute centred on the correct legal principles governing the exercise of discretion to grant a stay of proceedings under rule 63.03(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), particularly in circumstances where the applicant claimed impecuniosity.

The primary legal issues before the High Court were whether the Court of Appeal erred in its application of the principles established in *Cox v Journeaux* and *Gao v Zhang* to rule 63.03(3), and whether the court below had correctly distinguished between the exercise of a court's inherent jurisdiction to stay proceedings and the exercise of a statutory power to do so under the rules. Specifically, the applicant argued that the principle in *Cox v Journeaux*, which dictates that a suit should only be stopped if its continuation would clearly inflict unnecessary injustice, should apply regardless of whether the stay is sought under the court's inherent power or under rule 63.03(3). The applicant contended that the courts below had incorrectly treated rule 63.03(3) as a mechanism for enforcing costs orders, potentially abrogating a litigant's right to access justice, rather than applying the stringent test for stays that protects this right.

The applicant's central submission was that access to justice is a fundamental right, not a privilege, and therefore a stay order, which effectively denies access to justice, should only be granted in limited circumstances. He argued that the courts below had erred by focusing on the applicant's past conduct and his failure to pay costs orders, rather than on whether the continuation of the proceedings would clearly inflict unnecessary injustice on the respondents. The applicant presented evidence of his impecuniosity, stating he had no means to pay the costs orders. He contended that while costs orders can be punitive, stay orders are more drastic and should not be used merely to express the court's disapproval of a litigant's conduct or as a routine debt collection tool, as cautioned against in *Gao v Zhang*. The respondents, however, argued that the courts below had correctly applied the relevant principles, noting that the Court of Appeal had considered the seriousness of making a stay order and had found that the applicant's conduct warranted such a measure, particularly in light of rule 63.20.1 which allows for interlocutory costs to be taxed forthwith.

The High Court ultimately granted special leave to appeal, indicating that the case raised important questions of law regarding the interplay between the right to access justice, the power to impose stays, and the enforcement of costs orders under court rules. The Court acknowledged the applicant's argument that a distinction drawn between stays under inherent jurisdiction and those under rule 63.03(3) was erroneous and that the *Cox v Journeaux* principles should apply in both instances. The proceedings were adjourned for further hearing.