1 The proceeding presently on foot in this Court is an application for leave to appeal from a decision of Richards J,[1] dismissing a review of a decision of Wood AsJ,[2] dismissing a review conducted by Gourlay JR,[3] dismissing a review of orders made by Costs Registrar Walton on 19 September 2017 on the taxation of two bills of costs. The Court has attempted to list the application for leave to appeal on two occasions: first, in June 2020; and secondly, in February 2021. On each occasion, on the unopposed application of one of the parties, the matter was adjourned and the hearing date vacated. Since that time, there has been no attempt made by any party to take any step in the proceeding. The issue that now falls for determination is whether this Court, on its own motion, should dismiss the application for leave to appeal for want of prosecution.[4]

2 The underlying dispute between the parties concerns a contract entered into between Joseph Vella and Waybecca Pty Ltd. In December 2012, Mr Vella and Waybecca entered into a deed whereby Waybecca agreed to purchase a carpark from Mr Vella for the sum of $15,000 plus GST. Subsequently, Mr Vella refused to settle the contract of sale and Waybecca commenced proceedings in the Magistrates' Court against Mr Vella, seeking specific performance.

3 Mr Vella did not file a defence in the Magistrates' Court, and orders were ultimately made against him requiring him to complete the contract. Mr Vella did not comply with those orders (made variously on 17 June 2013, 19 November 2013, 3 December 2013 and 11 December 2013). On 6 June 2014, a magistrate refused an application for an adjournment, making orders that resulted in Waybecca obtaining the relief it sought in its originating process.

4 On 4 July 2014, Richard Giza, a person not qualified as an Australian legal practitioner, purported to institute an appeal on behalf of Mr Vella to the Supreme Court against orders of the magistrate made on 6 June 2014. On 13 August 2014, Lansdowne AsJ refused Mr Giza leave to appear on behalf of Mr Vella. Mr Giza, on behalf of Mr Vella, sought to appeal this decision. On 12 September 2014, Hargrave J dismissed that appeal and ordered costs against Mr Vella and Mr Giza.[5] On 22 September 2014, his Honour ordered that the appeal from the Magistrates' Court be referred to Lansdowne AsJ for hearing and determination under r 77.05 of the Rules.

5 On 1 October 2014, Lansdowne AsJ refused an application made by Mr Giza to be joined as a party to the proceeding and/or that he be substituted as an appellant in the proceeding. Her Honour heard the appeal on 27 November 2014. Mr Vella appeared in person, assisted by Mr Giza as a McKenzie friend. On 30 November 2015, her Honour dismissed Mr Vella's appeal as incompetent,[6] and ordered Mr Vella and Mr Giza to pay costs on an indemnity basis.

6 On 16 January 2016, Mr Giza filed an application for leave to appeal to this Court. On 22 January 2016, he filed an amended application in which he sought an extension of time for leave to appeal against the orders made by Hargrave J and a stay of the costs orders made by Lansdowne AsJ. On 22 April 2016, this Court (constituted by Santamaria and McLeish JJA) refused the application for an extension of time and the application for a stay.[7] On 12 October 2016, Mr Giza's application for special leave to appeal to the High Court was refused.[8]

7 On 1 August 2016, this Court (constituted by Redlich and Beach JJA) made an order for security for costs against Mr Giza in the sum of $25,000.[9] The security ordered was not provided, and Mr Giza's application for leave to appeal from Lansdowne AsJ's orders of 30 November 2015 was, pursuant to this Court's order, dismissed on 8 September 2016. On 7 December 2016, Mr Giza's application for special leave to appeal to the High Court was refused.[10]

8 Waybecca, having had costs orders made in its favour by Hargrave J (12 September 2014), Lansdowne AsJ (1 October 2014 and 30 November 2015) and this Court (15 April 2016 and 1 August 2016), proceeded to tax two bills of costs. The first bill related to the costs orders made by Hargrave J and Lansdowne AsJ; and the second bill related to the costs orders made by this Court.

9 On 19 September 2017, Costs Registrar Walton taxed the first bill in the sum of $53,274.02, and the second bill in the sum of $31,579.50. As I have already observed, reviews by Gourlay JR and Wood AsJ were refused in March and September 2018 respectively - leading to the dismissal of the review by Richards J which is the subject of the proceeding presently in this Court.

10 On 7 June 2019, Stanislawa Bahonko sought to file an application for leave to appeal, written case and associated documents. In her email, Ms Bahonko described herself as 'Disability Advocate for Richard Giza'. Although Mr Vella and Mr Giza were named as applicants, only Mr Giza had signed the application for leave to appeal and written case. Following queries of Mr Giza by the Registry, Mr Giza filed an application for leave to appeal and written case signed by both himself and Mr Vella. The application for leave to appeal contains a number of grounds of appeal, not all of which are easy to comprehend. The first three grounds of appeal are as follows:

1. Human Rights Charter Sec 24 Fair Hearing.

2. International Convention of Rights of Person with Disabilities.

3. Natural Justice and Christian Foundation of Western Justice Principles.

Another ground, dealing with procedural unfairness, provides (as typed):

Registrars, Prothonotary and the Judiciary officers acted as Representatives of the Waybecca in the Court and entirely in the Waybecca's interest against Applicants with disabilities.

It is not necessary for the purpose of these reasons to attempt to summarise the remaining grounds of appeal in the application for leave to appeal.

11 On 3 July 2019, Waybecca filed a notice of intention not to respond to or contest the application for leave to appeal.

12 On 12 November 2019, the Deputy Registrar (Legal) sent a letter to Mr Vella, Mr Giza and Ms Bahonko noting that their proposed grounds of appeal raised issues relating to the application of the Charter of Human Rights and Responsibilities Act 2006 ('the Charter'), and observing that s 35 of the Charter required notice to be given to the Attorney-General for Victoria and the Victorian Equal Opportunity and Human Rights Commission. The Deputy Registrar also provided a copy of s 35 of the Charter, a copy of the prescribed form of notice to be given pursuant to s 35, and links to two websites containing relevant information. The letter asked Mr Vella, Mr Giza and Ms Bahonko to prepare a notice under s 35, provide that notice to the Attorney-General and the Commission, and submit a copy of the notice for filing with the Court. The Court received no reply to the letter, and no Charter notice has been filed.

13 On 11 February 2020, the Court advised Mr Vella, Mr Giza and Ms Bahonko that the application for leave to appeal, and appeal if leave were to be granted, was listed for hearing on 15 June 2020. The Registry prepared an application book and combined folder of authorities for use by the parties.

14 On 29 May 2020, Mr Giza sent an email to the Court requesting that the 15 June 2020 hearing be postponed, 'until the Covid-19 crisis is over' and he completed a particular course of medical treatment. The request for an adjournment was either consented to or not opposed by the other parties.

15 On 8 December 2020, the parties were advised that the matter had been refixed for hearing on 1 February 2021. In response, Mr Giza provided further information about his medical condition, and requested a 'rescheduling' of the hearing. There was an exchange of emails in which it was asserted that neither Mr Giza nor Mr Vella were able to attend the scheduled hearing.

16 Various emails were sent by Registry staff and the Deputy Registrar to Ms Bahonko, Mr Vella and Mr Giza seeking dates as to when the application for leave to appeal might be capable of being listed. No responses were received to any of the emails sent after January 2021.

17 On 7 February 2022, the Deputy Registrar sent a letter to the parties, noting the procedural history; advising that the Court of Appeal could not continue to keep this proceeding 'on hold'; informing the parties of the power under r 64.46(1) of the Rules to dismiss an application for leave to appeal for want of prosecution; and directing the parties, if they did not wish to have the proceeding dismissed, to file material (an affidavit and written submissions), by 7 March 2022, explaining their failure to provide any update or other communication to the Court since January 2021, setting out why the application for leave to appeal should not be dismissed, and advising of their availability to attend a hearing within the next four months.

18 On 7 February 2022, Mr Vella's daughter responded saying that Mr Giza had passed away, Mr Vella had Alzheimers, there would be no reply to the Deputy Registrar's email, and that she would be blocking any further email from the Court.

19 On 4 March 2022, State Trustees informed the Court that Mr Giza had died in October 2021 and State Trustees was administering his estate. State Trustees provided a copy of Mr Giza's death certificate, but has not sought to take any step in the proceeding despite being aware of its existence. No further response has been received from any party. More particularly, notwithstanding that the parties have been on notice since February this year that the Court was contemplating, on its own motion, dismissing the proceeding for want of prosecution, no party or person interested in the proceeding has made any objection to that course being taken. Moreover, no material of the kind sought in the Deputy Registrar's email of 7 February 2022 has been filed.

Should the proceeding be dismissed for want of prosecution?

20 It is plain that no party to this proceeding has any interest in pursuing the application for leave to appeal. Indeed, the parties appear to be content for the Court to take the step, foreshadowed by the Deputy Registrar, of dismissing this proceeding for want of prosecution.

21 Despite the best endeavours of the Deputy Registrar and Registry staff, the application for leave to appeal has not be able to be progressed to a hearing. Correspondence from the Registry has either been ignored or not responded to in any meaningful way suggestive that any party is seriously pursuing the application for leave to appeal.

22 On its face, the proposed appeal is manifestly hopeless. While that is not a basis for dismissing the application for leave to appeal for want of prosecution, the apparent hopelessness of the proceeding may go some way to explain why none of the moving parties or their advisors have taken any step to bring on the hearing of this elderly application for leave to appeal. The failure to take any such step has occasioned delay which can only be described as inordinate and unsatisfactory.

23 A proceeding, which has already consumed a scandalous amount of court time and resources, in respect of what can only be described as a dispute of modest proportions, cannot be allowed to continue to consume such scarce resources for no good purpose. The interests of justice require no order other than the immediate dismissal of this proceeding for want of prosecution.[11]

24 Pursuant to r 64.46 of the Supreme Court (General Civil Procedure) Rules 2015, the application for leave to appeal will be dismissed for want of prosecution.

[1] Waybecca Pty Ltd v Vella [2019] VSC 306.

[2] Waybecca Pty Ltd v Vella [2018] VSC 492.

[3] Waybecca Pty Ltd v Vella (Unreported, Costs Court, 14 March 2018).

[4] See r 64.46 of the Supreme Court (General Civil Procedure) Rules 2015 ('the Rules').

[5] Vella v Waybecca Pty Ltd [2014] VSC 443.

[6] Vella v Waybecca Pty Ltd [No 2] [2015] VSC 678.

[7] Giza v Waybecca Pty Ltd [2016] VSCA 78.

[8] Giza v Waybecca Pty Ltd [2016] HCASL 241.

[9] Giza v Waybecca Pty Ltd [2016] VSCA 184.

[10] Giza v Waybecca Pty Ltd [2016] HCASL 314.

[11] Efektiv Pty Ltd v Madgwicks (a firm) [2022] VSCA 72, [17], [19].