//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2014] VSCA 153
Court of Appeal (Vic)
2014-07-18
Before Ferguson J, Ferguson J, Ashley JA
Original judgment source is linked above.
Re Velissaris [2012] VSC 293
PRACTICE AND PROCEDURE - Appeal - Whether appeal should be dismissed for want of prosecution - Whether appeal deemed abandoned should be reinstated - Long delay in context of appellate proceeding - No explanation for delay - Real risk, at least, of prejudice to prospective defendants - Appeal dismissed
1 On 4 July 2012, a judge in the Trial Division dismissed an application by George Velissaris ('the appellant') for the reinstatement of Maryvell Investments Pty Ltd.[1] That company had been placed into liquidation on 19 June 2006. The liquidator had presented final accounts in 2010. Those accounts showed that the company had indebtedness which it could not meet of a little more than $4 million. Following presentation of those accounts, the company had been deregistered.
2 The liquidation and eventual deregistration of Maryvell has given rise to a large amount of litigation. I recently described it this way in Velissaris v Fitzgerald & Anor:[2]
3 The order made on 4 July 2012 dismissing the application to reinstate Maryvell was made in one of the many claims pursued by the appellant. In the recent decision to which I have just referred, I described that proceeding this way:
4 On 17 July 2012, the appellant filed a summons seeking leave to appeal from the judge's decision dismissing his application to have Maryvell reinstated. He filed an affidavit in support on 30 July.
5 On 1 November 2012, his application for leave to appeal was dismissed. This Court held that an appeal lay as of right. The Court extended time for the filing of a notice of appeal.
6 On 14 November 2012, the appellant filed a notice of appeal, the grounds of which were stated as follows:
AND That IS Why Our Company MUST BE RE Instated And To SUE The ONES Who DONE Their Best To Destroy US And My Family To Become Homeless, And Only DUE TO THE FULL NEGLIGENCE Of "Tollhurst Druce & Emmerson" Lawyers, And We DESERVE TO HAVE THE Right To SUE Them For ALL Our Great LOSS And DAMAGES, And The Others.
7 On 22 November, the appellant was advised orally, at the Court of Appeal Registry, that his notice of appeal was defective. There is no doubt, I should immediately say, that this advice was correct.[4]
8 On 23 November, the Registry advised the appellant, by email, that -
(1) the notice of appeal did not meet the requirements of r 64.15;
(2) he was given the opportunity of reformulating his notice of appeal;
(3) a note of proposed contents of appeal book had not been filed within time, for which reason his appeal was now deemed to be abandoned (see r 64.08(1) and 64.16(1)(a));
(4) in order to reinstate his appeal, he would need to file a summons, supporting affidavit and an amended notice of appeal by 3 December. If he did not do so, the Judicial Registrar would assume that he did not want to take up the opportunity, and would consider whether to refer the matter to the Court of Appeal for dismissal based on the defects in the current notice of appeal.
9 On 28 November, the appellant sent a fax to the Registry in which he asserted that -
(1) he had been told that day that his notice of appeal had not been accepted;
(2) that his notice of appeal was 'very good' and that he did not 'need your approval at all'.
10 The appellant attached to his fax a copy of the notice of appeal dated 14 November 2012.
11 On 30 November, the Registry emailed the appellant, restating that his appeal was deemed abandoned and that he needed to apply for reinstatement by 3 December, failing which the Judicial Registrar would assume that the appellant did not want to take up the opportunity, and would consider whether to refer the appeal to the Court of Appeal for dismissal based on the defects in the then current notice of appeal.
12 On 6 December 2012, the appellant wrote to the Registry, seeking an additional two weeks to prepare a note of proposed contents of the appeal book. He restated his position that, in substance, his extant notice of appeal was in proper in form and content.
13 In May this year, the Court determined to consider, of its own motion, whether the appeal should be dismissed for want of prosecution under r 24.05. That raises for consideration the question whether there has been inordinate and inexcusable delay by the appellant in the prosecution of the matter, with resulting prejudice to potential defendants.
14 Very recently, counsel acting pro bono for the appellant has provided written submissions which, in substance, recite the chronology only up to 23 November 2012, and then continue -
16 Counsel for the appellant submitted today that the Registry letter of 23 November 2012 had been somewhat confusing. On the one hand, the appellant had been given the opportunity of reformulating his notice of appeal. On the other hand, he had been told that his appeal was now deemed abandoned, and that it would be necessary for him to apply for its reinstatement. Counsel pointed out that his client was not a lawyer, but rather an unrepresented litigant.
17 It turned out, however, that counsel was unaware of the existence of the fax sent by the appellant to the Registry on 28 November, and of the letter sent by the appellant to the Registry dated 6 December. Shown those communications, he had no further submissions to advance.
18 In my opinion, the Court should decline to reinstate the appeal, but should rather dismiss it for want of prosecution. Dismissal removes the prospect, illustrated by the appellant's application for reinstatement today, that deemed abandonment of an appeal may not prove to be the end of an appeal.
19 As I have already explained, the last occasion upon which the appellant addressed the matter was on 6 December 2012. On that date, he sought an additional two weeks to file a note of proposed contents - at the same time asserting, in substance, that there was nothing wrong with his existing notice of appeal. He did not follow up his request.
20 In the period of more than one and a half years which has elapsed since early December 2012, the appellant has taken no step either to file a note of proposed content or, for that matter, to regularise his notice of appeal, which was plainly defective. Significantly, the delay remains entirely unexplained. Had not the Court itself determined to bring the matter on, there is nothing to suggest that the appellant would have pursued the appeal.
21 I consider that - as is necessary to consider in the context of an appellate proceeding - the appellant's inactivity over a protracted period has been inexcusable, and that the delay itself has been inordinate. Further, although there was no defendant to the application below, had this appeal been successfully prosecuted it is plain that several entities, and the liquidator also, would have become defendants to litigation founded upon events which took place many years ago. The significance of the appellant's delay in prosecuting the appeal must be understood in that context. There would be, at least, a real risk of prejudice to those prospective defendants by reason of the delay - that is, the delay in prosecuting the appeal as distinct from the overall elapse of time - had the appeal succeeded and Maryvell been reinstated; prejudice by reason of being kept at risk, and prejudice in the conduct of their defences to litigation.
22 The liquidator has already been the defendant - or the intended target - in a considerable number of proceedings brought by the appellant. The notice of appeal dated 14 November 2012 reveals that the appellant sought reinstatement of Maryvell in part so that it could be used to bring a proceeding against the liquidator for the alleged sale of a property at Sydney Road, Brunswick at an undervalue, likewise the sale of plant and equipment at an undervalue. In Velissaris v Fitzgerald,[5] this Court decided that, whilst it was still open to the appellant[6] to bring a proceeding against the liquidator in respect of the alleged sale of the property at an undervalue, he could only do so by leave. The leave filter was of importance because of the appellant's multiple past attempts to sue the liquidator based upon factual assertions which have been said by courts to be contradictory and not credible. That decision did not consider the question which is pertinent here - that is, whether there is at least a real risk that the liquidator would be prejudiced generally or in his defence of such a claim - by the appellant's inordinate, inexcusable and unexplained delay in prosecuting this appeal. I do not doubt that such a risk of prejudice should be inferred.
23 In Velissaris v Fitzgerald, this Court also summarily dismissed a claim that the liquidator had sold the plant and equipment at an undervalue. The appellant should not be given the opportunity, after lengthy and unexplained delay, of reviving that claim, even if it be doomed to failure. To do so would unnecessarily embroil the liquidator in still further litigation.
24 As to other entities which the appellant apparently wished to sue by way of the Maryvell vehicle, it is true of one potential claim mentioned in the notice of appeal that it has not been the subject of final determination. But it appears that the liquidator considered whether to bring such a claim on behalf of Maryvell, and determined not to do so. If the appellant, subsequent to lengthy delay for which he alone bears responsibility, was now permitted to proceed against that entity, it would be exposed to a risk of litigation from which it could reasonably have expected it was now relieved. The passage of time in the period of delay, it should be inferred, has caused at least a real risk of prejudice to that entity in its defence of the foreshadowed claim.
25 I would dismiss the appeal for want of prosecution.
26 I add one matter. As I have already mentioned, appellant's counsel stated that he was unaware of the existence of two documents sent by the appellant to the Registry until he was shown them by the Court. In light of those communications, his submissions became very difficult to maintain. Counsel was appearing, in accordance with the best traditions of the Bar, pro bono. Of course, the Court did not enquire into the circumstances in which counsel's understanding of the circumstances came to be incomplete, but this should be said: an unrepresented party who has the great advantage of such representation must be very careful to provide frank and complete instructions to counsel.
28 The order of the Court is that the appeal is dismissed.
[4] Victoria v Bacon [1998] 4 VR 269.
[6] As the alleged trustee of the Maryvell Trust, which in turn was alleged to be the beneficial owner of the Sydney Road property.
2 The liquidation and eventual deregistration of Maryvell has given rise to a large amount of litigation. I recently described it this way in Velissaris
Fitzgerald & Anor:[2]