Attorney-General for the State of Victoria v Weston
[2002] VSC 13
•12 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 7711 of 2001
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| MICHAEL WESTON | Defendant |
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JUDGE: | McDONALD, J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2002 | |
DATE OF JUDGMENT: | 12 February 2002 | |
CASE MAY BE CITED AS: | The Attorney-General for the State of Victoria v Weston | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 13 | |
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Appeal from Order of Master – Discovery - proceeding commenced by Originating Motion to have defendant declared a vexatious litigant pursuant to s.21 Supreme Court Act 1986 - Application for order that proceedings continue as commenced by writ, refused: Application for limited discovery related to matters not relevant to issues to be determined at trial, no order made pursuant to R.29.07(2) for discovery - Appeal dismissed, summons of defendant for discovery dismissed.
Rules of Supreme Court 4.01; 4.05(b); 4.07(1); 29.01; 29.07(2).
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D. Masel | Victorian Government Solicitor |
| For the Defendant | (In person) |
HIS HONOUR:
On 25 September 2001 the Attorney-General for the State of Victoria commenced proceedings in this court by originating motion against the defendant, Weston, whereby the plaintiff made application to the court, pursuant to s.21 of the Supreme Court Act 1986, seeking an order that the defendant be declared a vexatious litigant. There was also filed, that day, on behalf of the plaintiff, a summons on the originating motion. There was filed on behalf of the defendant on 1 October 2001 a further amended summons, amended by leave of a Master.
On 22 October 2001 there was filed on behalf of the defendant a notice for discovery. On 12 November 2001 a summons was filed by the defendant directed to the plaintiff seeking an order against the defendant for discovery in the proceedings.
That summons was heard by a Master on 20 November 2001. It was ordered by the Master that the defendant's summons be dismissed with costs. It was further ordered by the Master that the trial of the proceedings be fixed for 5 March 2002, with an estimated duration of the trial of 1 to 4 weeks.
The defendant, by notice filed on 27 November 2001, has appealed against the orders made by the Master on 20 November 2001. Pursuant to R.77.05(7) the appeal is brought by way of a re-hearing de novo of the application before the Master.
As part of the relief sought by the summons on the originating motion, the plaintiff sought an interlocutory order restraining the defendant, pending the hearing and determination of the proceeding, from commencing any proceeding in this court, in an inferior court or a tribunal constituted or presided over by a person who is a barrister and solicitor of the court, without leave of the court.
On 4 October 2001 that interlocutory proceeding came on for hearing before this court. On that day the defendant gave an undertaking to the court as follows:
"1.Save as provided in paragraphs 2 and 3 of this Undertaking, until the trial and determination of this proceeding I will not commence any legal proceeding (including a proceeding in the nature of an appeal in an existing legal proceeding) in this Court, an inferior court or a tribunal constituted or presided over by a person who is a barrister and solicitor of the Court.
2. It is understood and accepted that paragraph 1 of this Undertaking does not operate to prevent me obtaining and enforcing by the issue of warrants of seizure and sale any order or judgment which I may hereafter be awarded in the following proceedings already commenced by me:
(a) The counterclaim in proceeding no. MC930819 of 1993 in the County Court of Victoria at Melbourne wherein the plaintiff is The President, Councillors and Ratepayers of the Shire of Rutherglen and Michael Weston and Patricia Mary Weston are the defendants;
(b) Proceeding No. 0512 of 1998 in the County Court of Victoria at Wangaratta wherein the plaintiff is Michael Weston and Robin W. Wilson & Ors are the defendants;
(c) The appeal in proceeding No. 4029 of 2000 in the Supreme Court of Victoria - Common Law Division, wherein Michael Weston is the appellant and The Indigo Shire Council formerly the President, Councillors and Ratepayers of the Shire of Rutherglen and others are the respondents.
3. It is understood and accepted that notwithstanding paragraph 1 of this Undertaking, I may commence any legal proceeding as I may hereafter be granted leave to commence upon application being made to the Court to be released from this Undertaking."
On such undertakings being given by the defendant it was ordered that the application by the plaintiff for an interlocutory injunction be struck out, reserving liberty to apply.
The proceedings referred to in paragraphs 2(a) and 2(b) of the undertaking given by the defendant were proceedings which were before the County Court. The trial of such proceeding had been completed before Judge Dove of the County Court and as at 4 October 2001 the decision of His Honour was then reserved.
At the outset of the hearing of this appeal the defendant informed the court that he was pursuing his appeal against the decision of the Master of 20 November 2001, and as part of that appeal he sought an order that the proceedings which were commenced by originating motion continue as if they were commenced by writ.
The defendant, during the course of his appeal, also informed the court that he appealed against the order fixing the trial date for 5 March 2002.
The court was further informed that His Honour Judge Dove had delivered his judgment in the County Court proceedings on 30 January 2002.
The defendant further sought an order that he be granted leave by this court to institute appeal proceedings against the judgment and orders made by His Honour Judge Dove in each of the aforesaid proceedings before the County Court. The court was informed that the judgment of His Honour comprised some 259 pages. No material was put before the court by the defendant as to the grounds on which he sought to appeal against the judgment and orders made by His Honour. In the circumstances it was not appropriate to deal with any application to be made by the defendant for leave of the court to institute proceedings by way of appeal against the judgment of His Honour and orders made in each of the County Court proceedings. In such circumstances I informed the defendant that if any application was to be made to the court as to this matter then it could be initiated by him on proper material, but it would not be dealt with at this time.
I turn to consider the appeal against the orders of the Master.
Before addressing the relief sought by the defendant pursuant to the summons dealt with by the Master and the appeal against the orders of the Master, it is appropriate to have regard to the framework as constituted by Chapter 1 of the Rules of the court dealing with the nature of the proceedings instituted by the plaintiff and the order for discovery in these proceedings now sought by the defendant by his summons.
Rule 4.01 provides:
"Except where otherwise provided by or under any Act or these Rules a proceeding in the Court shall be commenced by writ or by originating motion".
Rule 4.05(b) provides:
"A proceeding shall be commenced by originating motion -
(b)where by or under any Act an application is authorized to be made to the Court".
The application by the plaintiff as commenced by originating motion was an application for an order pursuant to s.21 of the Supreme Court Act. It was appropriate for the plaintiff to commence the proceedings against the defendant by originating motion.
As to discovery, R.29.01(1) provides:
"(1)Except where the Rules of this Order otherwise provide, the Order applies only to a proceeding commenced by writ and to a proceeding in respect of which an order has been made under Rule 4.07(1)."
In turn, R.4.07(1) provides:
"Where a proceeding in which there is a defendant is commenced by originating motion, but ought by or under any Act or these Rules to have been commenced by writ, or might in the opinion of the Court more conveniently continue as if commenced by writ -
(a)the Court may order that the proceeding continue as if it had been commenced by writ and may, in particular, order that any affidavits already filed in the proceeding shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof or that pleadings be served between the parties, and that the parties have discovery of each other; and
(b)by virtue of that order, the proceeding shall be taken to have been duly commenced for all purposes on the day the originating motion was filed."
Accordingly, if, pursuant to R.4.07(1)(a) and (b), the court was to determine that it was more convenient to continue the proceeding as if commenced by writ and an order was made by the court that the proceeding continue as if commenced by writ, it would be competent for the process of discovery to be undertaken pursuant to Order 29 and in circumstances such as the present, where a notice for discovery has been served on the plaintiff (assuming that that was done) for the court to order that discovery be provided by the plaintiff.
No doubt the application of the defendant, on the re-hearing of his summons, for an order that the present proceeding be initiated by originating motion continue as if commenced by writ was made for the purpose that if such an order was made the process of discovery would be available to him. No other purpose was put forward by the defendant.
However, in determining whether it was more convenient for the present proceeding to continue as if commenced by writ solely for the purpose of making the process of discovery available to the defendant, regard should be had to R.29.07(2) which provides:
"In a proceeding not within Rule 29.01 the Court may at any stage order any party to make discovery of documents."
In the course of addressing the court on this appeal the defendant informed the court that he did not seek general discovery against the plaintiff but, rather, he sought discovery of a limited nature. The defendant informed the court that he sought discovery of any letter written to the plaintiff by the solicitor for the Shire of Rutherglen, whom he named, and a member of parliament, whom he named, or any other person seeking to have or encouraging the plaintiff to bring and to prosecute the present proceedings against him.
The defendant informed the court that he believed that if such discovery was obtained it would be demonstrated that there had been made to the plaintiff untrue statements about him and untrue statements as to facts and further statements which were fraudulent. He stated that in substance he expected that he would establish that the present proceedings were not brought in good faith by the plaintiff.
On behalf of the plaintiff it was submitted that the proceeding commenced by the plaintiff was appropriate to be brought by originating motion and was a proceeding of a nature traditionally commenced by originating motion. It was submitted that the present proceeding was not readily amenable to pleadings. I agree with that submission.
It was further submitted that the ambit of the inquiry in the present proceeding was dictated by s.21(2) of the Supreme Court Act and, further, the discovery now sought by the defendant related to matters which were not relevant to any issue to be determined by the court in this proceeding. It was submitted that in such circumstances it had not been demonstrated that it was more convenient for the proceedings to continue as if commenced by writ for the purpose now sought by the defendant. It was further submitted that the court should not exercise its discretion under R.29.07(2) and make an order for discovery of the type now sought by the plaintiff.
Pursuant to s.21(2) of the Supreme Court Act there is vested in the court the discretion to make an order declaring a person a vexatious litigant if, after hearing or giving the person an opportunity to be heard, it is satisfied that the person has habitually and persistently and without any reasonable ground instituted vexatious proceedings in the court, in an inferior court or a tribunal against the same person or various persons. It is to be noted in Kay v. The Attorney-General [2000] 2 V.R. 436, Ormiston, J.A., at pp. 437-438, commented on the nature of the proceeding brought pursuant to s.21 of the Supreme Court Act and the nature and extent of the inquiry and process that he would expect the court to undertake in such a proceeding.
The discovery now sought by the defendant against the plaintiff relates to a matter or matters which are not relevant to any issue to be determined by the court in this proceeding.
Accordingly, I am satisfied that there has not been established any good or proper reason why it should be concluded that it is more convenient to treat the proceeding as if commenced by the writ in order to permit the defendant to obtain discovery against the plaintiff as now sought.
Further, I am satisfied that no order should be made pursuant to R.29.07(2) requiring the plaintiff to make discovery of documents of the nature as now sought by the defendant.
Accordingly, the application for an order that the plaintiff give discovery of documents now sought by the defendant must be dismissed.
During the course of addressing the court the defendant, who conducts the business of a walnut farmer, informed the court that in the conduct of his business if he was required to be absent from his farm during the months of March, April or May it would be necessary for him to employ a person or persons to attend to his farm at that time, which would cause him to suffer loss, whereas if the trial was to proceed during or in the months of June, July, August or September he would not be confronted with such difficulty.
No material was put before the court by the defendant as to this matter. Whereas I can appreciate that the defendant may have this difficulty if the trial was to commence on 5 March 2002, in the absence of any material before the court to substantiate these matters I am unable to order that the trial date as presently fixed be vacated and to make orders consequent upon the date for trial being vacated. Accordingly, I am unable to allow this aspect of the defendant's appeal.
However, as to this latter matter and this aspect of the appeal, having regard to the reasons why I am unable to vacate the trial date now fixed, that does not prevent the defendant from applying on proper material to the Listing Master to vacate the trial date and to have fixed another date on which the trial shall commence. If such a course is to be pursued by the defendant the application should be made to the Listing Master as soon as it can be practically made.
For these reasons I have concluded that the summons of the defendant should be dismissed.
It is ordered that the appeal of the defendant against the order of Master Wheeler made herein on 20 November 2001 be dismissed and that the summons of the defendant against the plaintiff filed 12 November 2001 be dismissed.
(Discussion ensued re costs)
It is ordered that the defendant pay the plaintiff's costs of the proceedings before the Master and of this appeal, including costs reserved.
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