Clarke v Noronha

[2004] FCA 603

FEDERAL COURT OF AUSTRALIA

Clarke v Noronha [2004] FCA 603

BRUCE ROBERT CLARKE v LUCAS B NORONHA & ANOR
A23 OF 2003

STONE J
12 MAY 2004
CANBERRA

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	A23 OF 2003

BETWEEN:	BRUCE ROBERT CLARKE APPLICANT
AND:	LUCAS B NORONHA FIRST RESPONDENT
DAVID JOHN LEAROYD SECOND RESPONDENT

JUDGE:	STONE J
DATE:	12 MAY 2004
PLACE:	CANBERRA

REASONS FOR JUDGMENT

1. Pursuant to O 20 r 2 of the Federal Court Rules (‘Rules’), I have today made an order in chambers dismissing this application.  These are my reasons for making that order. 

2. The applicant, Mr Clarke, commenced this proceeding in August 2003 seeking an order of review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). The application appeared to relate to an alleged traffic infringement notice served on the applicant pursuant to the Road Transport (General) Act 1999 (ACT). The matter was heard in the ACT Magistrates Court and, in this Court, the applicant sought an order to stay those proceedings. On the face of the application it did not seem to me that the Court had jurisdiction to intervene in the matter before the ACT Magistrates Court.

3. When the matter initially came before me for directions on 5 September 2003, Mr Clarke was singularly unable to explain the nature or basis of his claim. When I asked him to tell me why he decided to bring the action he replied that he could not answer the question.  He appeared to have no idea what the proceedings involved or what it was hoped to achieve by them. 

4. I pointed out to Mr Clarke that, in any event, there was a threshold question concerning the jurisdiction of this Court to hear the matter.  Not surprisingly, he was also unable to deal with this question.  Mr Clarke said that he wanted Mr Ibarcena, whom he described as his ‘next friend’, to speak for him as he could not read or write very well and needed Mr Ibarcena’s assistance.  Without making any formal order and with some reluctance I allowed Mr Ibarcena to attempt to explain to the Court the background to the proceeding.  It quickly became apparent that he was unable to do so at least in terms that made any sense to me. 

5. I listed the matter for hearing on 3 October 2003 and on that date Mr Clarke renewed his application for the appointment of a next friend claiming, pursuant to O 43 r 1 of the Rules, to be mentally disabled.  In support of his application Mr Clarke provided a medical certificate to the effect that he was suffering depression and ‘wishes to have a friend represent or speak for him in his upcoming court appearance.’  In my view the certificate fell well short of establishing that Mr Clarke was subject to a mental illness, which, in the terms of O 1 r 4, caused him to be incapable of managing his own affairs.  I therefore refused the application. 

6. As Mr Clarke was unable to formulate any submissions to support his application, Dr Jarvis, counsel for the respondents, made submissions in support of the respondents’ claim that this Court has no jurisdiction to make the orders sought by Mr Clarke.  Those submissions were compelling but, as events transpired, it was not necessary for me to make a final decision on the matter.  Following the completion of those submissions I granted Mr Clarke a short adjournment so that he could consider his response to the respondents’ submissions.  When the proceedings resumed Mr Clarke attempted to press his application to have Mr Ibarcena represent him and, being refused, sought leave to discontinue his application.  Counsel for the respondents indicated that the respondents consented subject to the award of costs in their favour.  I explained this to Mr Clarke who pressed his application for leave to discontinue.  Accordingly I made the orders requested by the parties. 

7. Despite being given leave to discontinue the proceedings, the applicant did not attempt to file the relevant documentation until early November.  Unfortunately, an administrative error in the Court registry led to the notice of discontinuance being refused and the applicant being told that the file had been closed.  Subsequently the applicant approached the registry and requested that the Court give reasons for, among other things, the order giving leave to discontinue the proceedings.  Clearly, the simple answer to the question is that the applicant requested the order and the respondents consented.  Hopefully the explanation in these reasons will assist the applicant in understanding the course of events that led to the making of the order he requested.

8. As the matter has stood since then the proceedings had not been discontinued; Cameron v Goldtek Australia Pty Ltd (1997) 72 FCR 274. The applicant attempted to act on the leave given on 3 October and discontinue the proceeding but was not able to give effect to his intention because of the error previously referred to. It is unfair that a person who is so unconversant with legal procedures should, as a result of that error, have to attend to that detail again.

9. Similarly the respondents should not be exposed to the continuing possibility of the application being reactivated.  The request for leave to discontinue was the only reason the hearing of the application on 3 October 2003 did not proceed.  The applicant had the benefit of hearing the respondents’ submissions and then chose not to make any submissions.  His application was entirely without merit and, had he not sought leave to discontinue it is abundantly clear that his application would have been dismissed with costs.  Alternately it was open to me to dismiss it on my own initiative pursuant to O 20 r 2 which states that the Court has power to stay or dismiss proceedings ‘where no reasonable cause of action is disclosed; the proceeding is frivolous or vexatious; or an abuse of the process of the Court’. 

10. In all these circumstances it would clearly be an abuse of process of the Court for the matter to continue and the respondents to be put to any further inconvenience or expense.  It was for these reasons that I made the order referred to in [1] above.  The costs order made on 3 October 2003 continues to apply. 

I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Stone.

Associate:

Dated:             12 May 2004