Crowley v State of Victoria
[2019] VSC 691
•17 October 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S ECI 2019 03879
| ANDREW CROWLEY | Plaintiff |
| v | |
| STATE OF VICTORIA & ORS | Defendants |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF RULING: | 17 October 2019 |
CASE MAY BE CITED AS: | Crowley v State of Victoria & Ors |
MEDIUM NEUTRAL CITATION: | [2019] VSC 691 |
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PRATICE AND PROCEDURE – Self-represented litigant – Refusal by Prothonotary to seal documents as originating process – Plaintiff seeking direction to Prothonotary to accept documents – Documents irregular in form and abuse of process – Application refused – No direction given to the Prothonotary to accept the proposed originating process – Supreme Court (General Civil Procedure)Rules 2015, r27.06 and r 28A.04(2)(a)
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HER HONOUR:
The Eureka Stockade is an iconic battle of Victorian colonial history. The events of 1854 with the imposition of increasing fees for gold licences caused unrest leading up to the Goldfield’s battle in Ballarat on 3 December 1854. On 7 October 1854, a digger named James Scobie was found dead behind Bentley’s Eureka Hotel. James Bentley, owner and publican of the hotel, was charged with his death. Some days later he was discharged without conviction by police magistrates, Dewes and Rede, who found he had no case to answer. Following this, a riot ensued. James Bentley and his wife left the hotel and went to the police camp. The hotel was subsequently burnt to the ground in the riot.
A Committee chaired by E.P.S. Sturt was appointed by the Lieutenant Governor, Sir Charles Hotham to inquire into the circumstances surrounding the death of Scobie and the riot. It was known as the E.P.S. Sturt Enquiries and Compensation Sittings. It sat at Bath Hotel in Ballarat in November 1854. It made recommendations about the actions of Dewes and Rede, critical of their handling of the Bentley charges.
Later, James Bentley was charged and was convicted of Scobie’s manslaughter following a Supreme Court trial in Melbourne before Acting Chief Justice Redmond Barry.
Andrew Crowley says he is the descendant of James Bentley and his wife, and is now owner of the land on which Bentley’s Eureka Hotel stood. This he says is because he inherited the original title deed document from the owners, James and Catherine Bentley as inherited by his predecessors.
In short, Mr Crowley says that the government unlawfully requisitioned his ancestor’s hotel to use itself for police action taken against the protesting diggers. The State failed to prevent the destruction of the hotel in the riot and has thereafter not compensated his family for the requisition by the State. He seeks to bring a proceeding compelling the State to return the land to him as the rightful owner. The original title deed was inherited by his grandmother and gifted to him in 1985 but he says that he did not until much later time realise the significance of the document.
The basis for Mr Crowley’s claim for ownership and possession alleges that on the day of the riot and fire at Bentley’s Eureka Hotel the police had that morning taken the premises into the government’s custody so that the government could protect the property. He says that government has never restored the property to its rightful owners. He says that compensation should have been paid to the family for an unjust seizure.
Mr Crowley also states that the State continues to be incorrect identifying the deceased person found at the rear of Bentley’s Eureka Hotel and that the deceased was never officially or legally determined to be James Scobie. It is unclear from the document how the identity of the deceased is relevant to a claim to title and possession.
The land was sold by the State in about 1859 by John Humffray, Member of the Legislative Council, who it was said was taking bribes associated with the sale of the land.
The Prothonotary has rejected the statement of claim for filing pursuant to r 27.06(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), because the Prothonotary considered that a proceeding commenced by this document would be irregular or an abuse of process of the Court. Additionally, it has rejected the statement of claim under r 28A.04(2)(a) on the basis that the document, if sealed, would be substantially irregular or constituting an abuse of process.
Mr Crowley has exercised his right under r 27.06(3) and 28A.05 of the Rules for the matter to be referred to a judge of the Court to consider making a direction to the Prothonotary to accept the document for filing and seal it.
There have been two prior proceedings in this Court associated with Mr Crowley’s attempts to act on the dispossession of his ancestor’s land. First in 2002[1], he challenged the Parliamentary Committee finding that James Bentley and his heirs’ claim for compensation was disallowed. It appears from the orders made at that time that he also sought to revisit the verdict of manslaughter returned in 1854. Master Wheeler dismissed the proceeding determining that the Court had no jurisdiction to overturn the finding of a Select Committee of Parliament, nor could it re-open a verdict of the Court from 1854.
[1]S CI 2002 5898 James Francis Pentley v State of Victoria.
Second, in 2004[2], Mr Crowley issued a writ and statement of claim seeking over $19 million by way of damages as a result of the illegal requisition and the destruction of Bentley’s Eureka hotel. Master Wheeler dealt with that proceeding on the basis that it was not barred by the dismissal of the 2002 claim. That decision was accompanied by short reasons. He stayed the proceeding on the basis that the plaintiff would have ‘insurmountable difficulties proving that the government of the day had not acted legally’ despite the allegation that the Minister involved in the subsequent sale of the land (Humffray) was later convicted of accepting bribes’ and also that the claim would be statute barred. An appeal against the Master’s order was dismissed.
[2]S CI 2004 6964 Andrew Crowley v State of Victoria.
Mr Crowley says that the Prothonotary was wrong to say that this statement of claim is an attempt to re-litigate matters already determined. He says this because the 2002 application was for reopening the criminal trial and the Parliamentary Committee of Inquiry and seeking compensation for the destruction of the hotel. He says that 2004 was compensation for the loss of the hotel and not the land. By contrast, he says this proceeding is to prove that he is the lawful owner of the land as demonstrated by the ‘Pre-emptive Title Deeds’. He wants recognition of his title and the assistance of the Court in having those persons presently dwelling on the land to be removed. He says that the previous application for damages was for the loss of the hotel not for the land itself.
The statement of claim itself is difficult to follow. While it contains an interesting historical and genealogical outline it does not set out the necessary legal elements by which he alleges that possession of the title deed gives him good title now. He does not outline the relevant legal steps necessary to demonstrate recognition of title now, nor say how title might survive the government’s requisition and dealing with the land, lawful or otherwise. The Transfer of Land Act 1958 (Vic) sets out a procedure to convert old land title so that it is brought under the current system for registration of interests in land. Mr Crowley’s statement of claim does not set out a legal basis for a declaration of ownership or possession, the relief he effectively seeks, based merely on inheritance and possession of a Land Title Deed and Plan document from 1854. This failure to outline how title to land survives the subsequent dealings with the land makes the statement of claim irregular.
For these reasons I do not make a direction pursuant to r 27 or r 28 that the Prothonotary accept for filing and seal the document.
SCHEDULE OF PARTIES
State of Victoria First Defendant
Ballarat City Council Second Defendant
The Surveyor General Third Defendant
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