Brazel v State of Victoria

[2011] VCC 137

IN THE COUNTY COURT OF VICTORIA Revised

Not Restricted

AT MELBOURNE
CIVIL DIVISION
DAMAGES AND COMPENSATION

MEDICAL DIVISION

Case No. CI-03-06474

GREGORY JOHN BRAZEL	Plaintiff
v
STATE OF VICTORIA	First Defendant
and
GSL CUSTODIAL SERVICES PTY LTD	Second Defendant
(ACN 050 069 255)

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JUDGE:	HIS HONOUR JUDGE SACCARDO
WHERE HELD:	Melbourne
DATE OF HEARING:	27 January 2011
DATE OF JUDGMENT:	27 January 2011
CASE MAY BE CITED AS:	Brazel v State of Victoria and Anor
MEDIUM NEUTRAL CITATION:	[2011] VCC 137

REASONS FOR JUDGMENT

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Catchwords: Application by summons to reinstate proceedings which were dismissed by an order made by consent - whether a new proceeding is required to bring the matter before the Court.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Self-represented	-
For the Defendants	Mr P J Hanks SC with	Russell Kennedy
Mr R W Dyer
HIS HONOUR:

1          By a proceeding commenced 26 September 2003, Gregory John Brazel brought a proceeding[1] in this Court seeking damages against the State of Victoria in respect of injuries suffered by him as the result of an assault which occurred whilst Mr Brazel was a prisoner at the Barwon Prison.

[1]             Proceeding No CI-03-06474

2          On 23 September 2008, orders were made in the proceeding:

(i)	that the trial fixed for the 13th day of October 2008 be vacated;
(ii)	that the proceeding be dismissed with no adjudication as to merits;
(iii)	that the defendant pay the plaintiff’s costs of the proceeding;
(iv)	reserve liberty to apply as to costs.

3          By Summons dated 14 September 2008 issued in the proceeding, Mr Brazel seeks an order “setting aside the judgment of the Court entered by consent on 23 September 2008, and reinstating the proceeding”.

4          The proceeding was settled after the parties had executed a Deed of Settlement dated 22 September 2008 (“the Deed”). The terms of the Deed are confidential, and it is not necessary for me to disclose the terms in the course of these reasons, other than to note that the Deed imposes upon the State of Victoria, and to a lesser extent Mr Brazel, the obligation to perform a number of activities.

5          The Summons issued by Mr Brazel is supported by an affidavit attested to by Mr Brazel in which he alleges that the State of Victoria has failed to comply with the conditions of the Deed. In addition, Mr Brazel asserts that the State of Victoria entered into the Deed knowing that there was no intention to honour the Deed.

6          In opposition to the application, the State of Victoria has filed an affidavit sworn by Benjamin Geoffrey Lloyd in which Mr Lloyd deposes that the State of Victoria is not in breach of its obligations under the Deed and that it has performed all the obligations required of it which were capable of performance.

7          In opposing the relief sought by Mr Brazel, the State of Victoria submits:

• That the proceeding was dismissed by reason of the Consent Orders made on 23 September 2008 and that the judgment having been entered or authenticated, cannot be set aside;

• That Mr Brazel is not entitled to issue a summons in the proceeding seeking any relief other than that which was the subject of the Consent Orders made 23 September 2008, namely to apply as to costs.

• That a new proceeding would be required for the purpose of determining the issue as to whether the State of Victoria has performed the obligations required of it pursuant to the Deed of settlement, and, if it has failed to do so, the relief, if any, to which Mr Brazel is entitled.

8          It is clear that there is a general rule that once an order is authenticated in a form correctly expressing the Court’s intention, the Court is functus officio and has no power to amend the judgment or the order.[2]

[2]             See Pollard v Incorporated Nominal Defendant [1972] VR 955; Harvey v Phillips (1956) 95 CLR 235; Bailey v Marinoff (1971) 125 CLR 529.

9          Whilst there are a number of exceptions to the so-called general rule, I am of the view that none of the exceptions apply so as to allow Mr Brazel to issue a summons in the now-dismissed proceedings which seeks an order setting aside the consent judgment which has been entered.

10        In these circumstances, I will dismiss the summons issued by Mr Brazel in that proceeding.

11        Having regard to the fact that Mr Brazel is a litigant in person, I consider it appropriate in the course of these reasons for judgment that I clearly express my position that the order which I have made dismissing his summons is not an order which involves an adjudication of the matters raised by him in his affidavit namely whether:

• The State of Victoria has failed to comply with its obligations pursuant to the Deed or;

• The State of Victoria entered that Deed with the intention to breach the obligations which it had agreed to.

Nor is it a statement that Mr Brazel is not entitled to commence a proceeding seeking an adjudication of those matters.

12        My finding is simply that, if those issues are to be considered by a court, a separate proceeding is the only vehicle by which an inquiry of that type should take place.[3]

[3]             See Spies v Commonwealth Bank of Australia (1991) 24 NSWLR 691; Harvey v Phillips (op cit); Permanent Trustee Co (Canberra) Ltd (Executor estate of Andrews) v Stocks & Holdings (Canberra) Pty Ltd (1976) 15 ACTR 45.

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