Attorney-General for the State of Victoria v Pham
[2017] VSC 579
•28 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S CI 2013 04839
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| LE TUAN PHAM | Defendant |
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JUDGE: | Daly AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Not applicable – application of 27 July 2017 dealt with ‘on the papers’ |
DATE OF JUDGMENT: | 28 September 2017 |
CASE MAY BE CITED AS: | Attorney-General for the State of Victoria v Pham |
MEDIUM NEUTRAL CITATION: | [2017] VSC 579 |
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PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to bring proceedings – Leave refused – Vexatious Proceedings Act2014 (Vic) sections 54, 55.
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APPEARANCES: | Counsel | Solicitors |
| Not applicable |
HER HONOUR:
On 5 March 2014, the defendant, also known as Charles Pham, was declared to be a vexatious litigant within the meaning of s 21(2) of the Supreme Court Act 1986, and was therefore prohibited without leave from continuing or commencing any legal proceeding (whether civil or criminal) in this Court, any inferior court of the State of Victoria or any tribunal constituted or presided over by a person who is an Australian lawyer. The prohibition was expressed to remain in force indefinitely.[1]
[1]See Attorney-General (Vic) v Pham [2014] VSC 311 per Bongiorno JA.
By s 91 of the Vexatious Proceedings Act 2014 (Vic), that order is taken to be a general litigation restraint order made by the Supreme Court under s 29 of the Vexatious Proceedings Act.
The defendant did not appeal the order, and it remains in force. This means that the defendant must obtain the leave of the Court to commence any legal proceeding in this Court.
The defendant has filed an application for leave to commence a proceeding. He has prepared a document purporting to be an application under s 33 of the Charter of Human Rights and Responsibility Act 2006 (‘Charter’), an application under s 54 of the Vexatious Proceedings Act 2014 (‘Act’) and an appeal under s 272 of the Criminal Procedure Act 2009 (Vic).
On 30 June 2017, Mr Pham appeared as a defendant in a criminal proceeding in the Magistrates’ Court of Victoria in which the informant was Sunil Arachchi of the Department of Economic Development, Jobs, Training and Resources. Mr Pham was found to have failed to produce a valid ticket when travelling on public transport in August 2016. He pleaded not guilty, but was fined $75, without conviction. He now wishes to appeal from the Magistrates’ Court to the Supreme Court on a question of law under s 272 of the Criminal Procedure Act 2009.
Section 272(1) provides that a party to a criminal proceeding in the Magistrates’ Court may appeal from a final order of the Magistrates’ Court in that proceeding to the Supreme Court on a question of law. An appeal under sub-s (1) is commenced by filing a notice of appeal in accordance with the Rules of the Supreme Court within 20 days after the day on which the order complained of was made.
Mr Pham has sought to file a notice of appeal, but has been told that he needs the leave of the Court in order to do so, because he has been declared to be a vexatious litigant.
Mr Pham’s proposed grounds of appeal are set out in his affidavit made on 21 July 2017. They are a little difficult to follow, but can be summarised as follows:[2]
[2]I have taken the liberty of rephrasing some of the allegations to address grammatical errors, given that it is clear from the defendant’s name and documents that he is not a native English speaker.
(a) He is the victim of a breach of natural justice, in that the Magistrates’ Court:
(i) failed to provide a proper summary case conference, pursuant to s 54 of the Criminal Procedure Act 2009;
(ii) failed to provide a proper mention hearing, pursuant to Criminal Procedure Act 2009 s 53;
(iii) failed to provide a proper contest mention hearing, pursuant to s 55 of the Criminal Procedure Act 2009;
(iv)failed to provide ‘proper conduct’ as to how and when a preliminary brief must be served, pursuant to ss 35 and 36 of the Criminal Procedure Act 2009;
(v) failed to provide ‘proper conduct’ as to how and when a full brief must be served pursuant to ss 39 and 40 of the Criminal Procedure Act 2009;
(vi)failed to allow the accused to speak in Court and be heard regarding issues such as ‘combining two cases’, and ‘being a carer for an elderly father’, pursuant to s 37 of the Criminal Procedure Act 2009;
(vii) failed to allow the accused to speak through his two affidavits and other materials for a notice of s 33 referral to Supreme Court;
(viii) failed to disclose new fraudulent material in good faith in contravention of the continuing obligation of disclosure pursuant to s 42 of the Criminal Procedure Act 2009;[3]
[3]This allegation presumably refers to the informant.
(ix) failed to allow the accused to speak at the hearing as opening address pursuant to ss 66 and 71 of the Criminal Procedure Act 2009;
(x) failed to allow the accused to make his closing argument address pursuant to ss 66 and/or 74 of the Criminal Procedure Act 2009;
(xi) interfered with the accused’s questioning of the witnesses; and
(xii) failed to allow the accused to speak on the issues of costs, pursuant to s 400 of the Criminal Procedure Act 2009;
(b) further, the Magistrates’ Court made an error of law, including:
(i) an arbitrary and capricious interpretation of the Charter which appears to be an attack on the integrity of the Supreme Court of Victoria and the decision of Bell J in Tomasevic v Travaglini & Anor;[4]
[4](2007) 17 VR 100 (‘Tomasevic’).
(ii) an arbitrary and capricious interpretation of the Charter which appears to be an attack on the separation of powers and the power of Parliament to enact laws;
(iii) an arbitrary and capricious interpretation of the Criminal Procedure Act 2009;
(iv) allowing hearsay evidence at the summary hearing, contrary to s 59 of the Evidence Act 1995;
(v) disregarding the burden of proof and onus on the prosecutor to prove the accused’ guilt and to disprove any defences which arise as issues at trial;
(vi) adopting ‘an arbitrary and capricious interpretation of the Charter and referral to the Supreme Court pursuant to s 33 and or ss 36, 8 and 24, inter alia, Equal Opportunity Act, the Race Discrimination Act s 9(1A) Indirect Discrimination and Vilification’; and
(c) the Magistrates’ Court had failed to take into account relevant considerations, including:
(i) the witnesses failed to produce material evidence, rather relying on hearsay;
(ii) there was no case to answer because there were no written rules, regulations or policies presented by V‑line or the prosecutor;
(i) there was unlawful discrimination or ‘fishing’ for evidence; and
(ii) the prosecution had plenty of time to produce their evidence in a fair and equitable manner, but acted in bad faith;
(iii) the Magistrates’ Court acted contrary to the Charter and the decision of Bell J in Tomasevic;
(iv) it was in the public interest to have the questions of interpretation of the Charter and Acts according to the Charter,
(v) ‘by an refugee in public and open court, according to s 8 and 24 [sic] of the Charter, inter alia: a competent, independent and impartial court or tribunal after a fair and public hearing’;
(vi) uncertainty in laws caused the Victoria Police to contribute to the early death of Mr Gong Ling Tang in Victoria and Ms Dhu in Western Australia; and
(vii) there was a failure to apply the law, which has allowed the public officials, public servants, lawyers and police to profit from the proceeds of their crimes, including Australian Border Force Commissioner Roman Quaedvlieg, putting the lives of asylum seekers at risk of unlawful death by refoulement, including Vietnamese asylum seekers.
As can be seen from the above, the defendant makes wide ranging allegations concerning the conduct of the proceeding in the Magistrates’ Court, albeit in very general terms. A number of the allegations in the materials seem to be largely unconnected with the subject matter of the proceeding, being the defendant’s alleged failure to produce a valid ticket on public transport.
Unfortunately, the defendant’s affidavit does not set out or describe any facts or circumstances to support the alleged failures or errors. His affidavit tells the Court nothing about what actually went on in the Magistrates’ Court. The evidence that is before the Court is the notice of the order made by the Magistrates’ Court. As things presently stand, the prospects of success on appeal are nil.
While it is not necessary for an applicant in the position of the defendant to identify and establish all of the factual and legal assertions which would support a conclusion that a proposed proceeding would be successful, the terms of s 55 of the Act require that an application for leave under s 54 of the Act satisfy the Court that:
(a) the proceeding is not a vexatious proceeding; and
(b) there are reasonable grounds for the proceeding.
Section 3 of the Act provides that a vexatious proceeding includes ‘a proceeding commenced or pursued without reasonable grounds.’
In order to be satisfied that there are reasonable grounds for the proceeding, an applicant must at least identify some basic facts which could plausibly give rise to a right to relief. A recitation of provisions of legislation and administrative law principles is not enough to discharge the defendant’s obligation to satisfy a Court that the proceeding should be allowed to proceed.
However, there could be a question as to whether the defendant needs the leave of the Court in order to bring the appeal under s 272 of the Criminal Procedure Act, in that the appeal has been brought against a decision made in a proceeding in which the defendant was the accused. The question is answered by reference to the definition of ‘proceeding’ within s 3 of the Act, which provides that ‘“proceeding” means any matter in an Australian Court or tribunal, whether civil or criminal, including –
(c)any appeal, review or other challenge, including an application for judicial review or an application for leave to appeal.’
While under s 272 of the Criminal Procedure Act 2009 a party has an appeal as of right to this Court on a question of law, the breadth of the definition of proceeding in the Act means that it is tolerably clear that the legislature intended the restraint upon the freedom of vexatious litigants to bring proceedings to extend to appeals under s 272 of the Criminal Procedure Act 2009. Accordingly, the defendant requires leave to bring the appeal.
The authorities[5] make it clear that a party in the position of the defendant under the Act differs from the position under the Supreme Court Act 1986. The defendant has a more onerous burden under the Act: rather than simply establish that the proceeding was not ‘foredoomed to fail’, he must show that there are reasonable grounds for the proceeding. In Knight v Corrections Commissioner,[6] Digby J dismissed an application for leave on the basis that:
the applicant has failed to put forward any evidence on submission which establishes any real or reasonable prospect [that the application will be successful.][7]
[5]See, for example, Knight v Money [2015] VSC 105, [12].
[6][2016] VSC 50.
[7]Ibid [97].
The ‘real or reasonable prospect of success’ formulation was adopted by Keogh J in Knight v Victims of Crime Assistance Tribunal.[8] His Honour also noted that the applicant (in the current case the defendant) bears the onus of proving that the proposed proceeding is not vexatious and that it has reasonable grounds.[9]
[8][2017] VSC 133, [9].
[9]See also Knight v Money [2015] VSC 105.
Based upon the materials before me, it is impossible for me to be satisfied that the proposed appeal has any prospect of success, let alone a real or reasonable prospect of success. As noted in paragraph 10 above, there is no evidence as to what actually occurred at the hearing, which is essential, given that the defendant claims that the Magistrates’ Court had failed to afford him natural justice. The defendant fails to even assert that if the proceeding had been conducted any differently, the outcome would have been any different. He has failed to assert that he was in fact carrying a valid ticket. Reference is made to false and fraudulent evidence, but there is no reference to what this evidence was, or the nature and impact of that evidence upon the outcome of the proceeding.
Accordingly, the application for leave is refused.
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