Djime v Le
[2016] VSCA 105
•11 May 2016
SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2016 0047 | |
| HAMADOU DJIME | Applicant |
| v | |
| MATTHEW LE | Respondent |
---
JUDGE: | BEACH JA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | On the papers | |
DATE OF JUDGMENT: | 11 May 2016 | |
MEDIUM NEUTRAL CITATION: | [2016] VSCA 105 | |
---
PRACTICE AND PROCEDURE – Unrepresented litigant – Application for leave to appeal – Registrar refused to accept documents for filing – Application to direct Registrar to accept documents for filing – Documents not complying with rules or practice directions – Documents difficult to understand – Defective documents – No prospect that applicant will prepare documents that comply with rules and practice directions – Directions – Efficient future conduct of proceeding – Re Klement [2011] VSCA 40 applied – Registrar directed to accept document for filing – Directions given for future conduct of proceeding – Supreme Court (General Civil Procedure) Rules 2015, rr 64.15(5)(b), 64.27(3), 64.40 and 64.43(5).
PRACTICE AND PROCEDURE – Appeal from an associate judge to a judge – Appeal by way of rehearing – Appeal not confined to errors of law – Hou v Westpac Banking Corporation [2014] VSCA 57 referred to.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearances | |
| For the Respondent |
BEACH JA:
Introduction and background
On 4 May 2015, the applicant, Hamadou Djime, who is unrepresented,[1] commenced a proceeding by way of originating motion in the Trial Division. The originating motion named the respondent, Matthew Le, as the defendant. The proceeding was issued in the Judicial Review and Appeals List of the Common Law Division. On page 2 of the originating motion, under the heading ‘Remedy and/or Relief Sought’, the following was typed:
Strike out or Dismiss the Fake, Unauthorised, Out of statute of limitation, and Invalid charges forged by the Informant, the Police officer Constable MATTHEW LE.
Over the balance of page 2 and pages 3 to 10 of the originating motion, under the heading ‘Grounds’ the applicant set out a series of assertions and conclusions, interspersed with extracts from various statutes. This section of the originating motion was divided into ten parts numbered I to X.
[1]Or, in modern parlance, self-represented.
On 23 October 2015, the respondent filed a summons seeking the summary dismissal of the applicant’s proceeding.
On 2 December 2015, Ierodiaconou AsJ dismissed the applicant’s proceeding pursuant to s 63 of the Civil Procedure Act 2010. On 11 December 2015, the applicant filed a notice of appeal against the order of Ierodiaconou AsJ.
The applicant’s appeal from the order of Ierodiaconou AsJ came on for hearing before Zammit J on 8 February 2016. On 19 February 2016, Zammit J dismissed the applicant’s appeal.[2]
[2]Djime v Le [2016] VSC 48 (‘Reasons’).
The applicant wishes to appeal from the order of Zammit J. On or about 16 March 2016, the applicant attempted to file with Registrar of the Court of Appeal a document that appears to be a combined application for leave to appeal, and written case. This document was dated 16 March 2016. The Registrar did not permit the applicant to file this document. In rejecting the filing of the document, the following reasons were given to the applicant:
In its current form, the application for leave to appeal does not comply with the Supreme Court (General Civil Procedure) Rules 2015, Practice Direction No 7 (2014) (‘PD’) or the Registrar’s Notes on the Preparation of a Written Case for the following reason:
1.The Written Case does not set out specific and concise submissions as to why leave should be granted, or on the merits of each proposed ground of appeal: see PD s 7(2).
In the email advising him that the Registrar had rejected his document, the applicant was informed of the existence of the Victorian Bar’s pro bono scheme, and given a form for him to complete if he wished to obtain a referral to that scheme. The applicant was told that if he chose not to accept the assistance of the pro bono scheme, then the Registrar would provide until 4:00 pm on 24 March 2016 to lodge amended application documents without the need to lodge an extension of time application in respect of the leave application documents.
In an email sent on 22 March 2016, the applicant informed the Registrar that the applicant did not need pro bono assistance.[3] The applicant then sought to file another document that combined an application for leave to appeal with a written case. The second application for leave to appeal and written case document was dated 22 March 2016.
[3]I do not pause here to debate the correctness of that proposition.
On 11 April 2016, the applicant was advised by Registry staff that the Registrar refused to accept the application for leave to appeal and written case document dated 22 March 2016. The email advising this rejection was in the following terms:
You have been advised of the numerous deficiencies with your previous applications but the errors have still not been corrected. Accordingly, the Judicial Registrar hereby refuses to accept your application for leave to appeal and supporting written case since to do so in their present form would allow a matter that is not only procedurally non-compliant, but also vexatious and
an abuse of process, to proceed. See Supreme Court (General Civil Procedure) Rules, rr 64.43(1)(b)-(c), 64.43(2).
If you wish to have this decision reviewed then you must file a separate application and supporting affidavit asking that the Court direct the Registrar to accept your application for leave to appeal. See Rules 64.03(3)–(4) & 64.43(5).
By an application dated 21 April 2016, the applicant has applied for the following order:
To have the Court of Appeal directed (sic) the Registrar to accept leave to appeal documents without censure or undue pressure.
Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), the applicant’s application was referred to a single judge of appeal to be considered and dealt with under r 64.15. Pursuant to rr 64.15(5)(b), 64.27(3), 64.40 and 64.43(5) of the Rules it was then determined, by this Court, that the applicant’s application should be heard by a single judge of appeal without an oral hearing. Thus, the applicant’s application now falls for me to determine.
The applicant’s application
In his written application for the order that he seeks directing the Registrar to accept his documents, as typed by the applicant, the applicant identifies the grounds of his application as follows:
That the Supreme Court Staff have not been neutral in these proceedings, for they had unlawfully filed an INVALID SUMMONS (violation of Rule 22.18(4) holding a SUMMARY JUDGMENT Without Court Order, and been exercising UNDUE PRESSURE since the beginning of the Appeal.
That an applicant should not be deprived of EFFECTIVE RIGHTS of APPEAL, which is exactly the intention of the Staff Mr David TEDHAMS in describing the Written case as vexatious or abuse of process without being able to deny the allegations of FRAUDS brought against Public authorities (Police officers, Judges and Others Staff).
That the VICTORIA Police Organisation and Others had committed DAMAGES, so NO CENSURE OR UNDUE PRESSURE should take place to prevent an applicant from its RIGHTS OF CLAIMS.
The applicant’s application is supported by an affidavit sworn by the applicant on 22 April 2016.
The respondent’s position
The respondent has filed a written response opposing the making of the order sought by the applicant. The respondent’s response (supported by an affidavit sworn by Adrian Mark Castle on 3 May 2016) contends that the applicant’s application must be refused because the applicant has, amongst other things, ‘failed to articulate any proven or provable error in law or process in the hearing of [the appeal before Zammit J] which would enliven the Court of Appeal’s jurisdiction’.
The applicant’s paperwork and the resolution of this application
The applicant’s paperwork is not easy to understand. It contains high level and conclusionary statements, and expressions such as ‘fake charge-summons’, ‘false court documents’, ‘forgeries’, ‘fake version’, ‘false trial’ and ‘fake signature’, without descending in precise terms to the factual or legal bases upon which such statements are made. Further, there is an allegation in the applicant’s documents that the associate judge and the judge are ‘accomplices of the same frauds by the respondents and their solicitor’.
The Registrar’s conclusions that the documents the applicant has sought to file do not comply with the relevant rules or practice direction is plainly correct. That said, there are a number of parallels between the present case and this Court’s decision in Re Klement.[4]
[4][2011] VSCA 40 (Maxwell P and Buchanan JA) (‘Klement’).
In Klement, the Prothonotary had refused to accept documents for filing on the basis that they were ‘inherently irregular or an abuse of [the] process of the court’, and that it was ‘impossible to ascertain whether there [was] a genuine claim’ set out or described in them. The matter was referred to a judge of the Trial Division, who declined to direct the Prothonotary to accept the documents.
Reverend Klement then sought leave to appeal to the Court of Appeal. After hearing argument, the Court of Appeal said:
For reasons which follow, we have come to the conclusion that, in these quite exceptional circumstances, we should set aside the judge's order declining to make a direction and substitute an order directing the Prothonotary to accept the documents for filing.
As will become apparent, we have come to this conclusion not because we consider that there was any error in the decision of either the Prothonotary or of the learned judge. On the contrary, there was a perfectly proper basis for the Prothonotary’s refusal to accept the documents for filing and for his Honour’s refusal to direct the Prothonotary to receive the documents. Had we been in his Honour’s position, we would almost certainly have come to the same conclusion. The documents are very difficult to read and very difficult to understand and, to the extent that they can be understood, it is very difficult to discern what ground is relied on relevant to the claim which Reverend Klement wishes to make.
Nevertheless, it appears to us that were the judge's order to stand, this could be productive of only one thing, that is, the prolongation of this pre‑litigation phase. It is apparent from what Reverend Klement has said orally and in writing that he is adamant that the will should be revoked. It is quite plain — and we are satisfied — that a refusal to accept these documents for filing would not deter him from pursuing that claim.
Indeed, it is inevitable that, if these documents were rejected, further documents would be prepared to replace them, and there is every likelihood that those further documents would be in much the same condition.[5]
[5]Klement [2011] VSCA 40 [5]–[8].
I have come to the same conclusion in the present application as the Court came to in Klement. An examination of the documents filed by the applicant in the Trial Division and the documents which he has filed or attempted to file in this Court has persuaded me that there is no prospect that the applicant would or could ever file documents that comply with the relevant rules and practice statements that govern his matter. The exchange between this Court’s Registry and the applicant has, to date, been unproductive so far as the efficient and economical resolution of the applicant’s current complaints. Further, I am satisfied that any continuation of the current exchange of emails and correspondence, between the applicant and Registry staff, would also be unproductive.
Like the Court in Klement, I regard the present case as exceptional. In the exceptional circumstances of this case, I propose to direct the Registrar to accept the applicant’s document dated 22 March 2016, and headed ‘Application for Leave to Appeal Against the Order of the Practice Court Judge Rita Zammit’ and ‘Written Case for the Appellant’, as the applicant’s application for leave to appeal from the order of Zammit J made 19 February 2016 and the applicant’s written case in support of that application and (if leave is granted) his appeal.
While the respondent contends that the applicant’s documents do not articulate a ‘provable error in law or process’, it is to be remembered that an appeal to this Court is not confined to an error of law or error of process. An appeal to this Court (if leave is granted) is a rehearing.[6] For the sake of completeness, I should also note that an appeal from an associate judge to a judge is an appeal by way of rehearing, and is similarly not confined to errors of law or process.[7] Further, having read the respondent’s material in opposition to the present application, I am satisfied that the respondent will be able to answer the issues that the applicant wishes to raise in this Court, notwithstanding the applicant’s non-compliance with the relevant rules and Practice Direction, and notwithstanding such difficulty as there is in understanding some of the applicant’s submissions and assertions.
[6]See Fox v Percy (2003) 214 CLR 118.
[7]Hou v Westpac Banking Corporation [2015] VSCA 57 [44] (‘Hou’). But cf Reasons [5] (and query whether the judge’s reference to the applicant having to establish an error of law might ultimately be found to have any bearing on the outcome of the appeal from the associate judge in the present case, or any bearing on the outcome of the application/appeal in this Court: as to this, see in particular, Hou at [44] and [81]).
The identity of the parties and the ambit of the proceeding
The originating motion filed by the applicant in the Trial Division named the respondent as the sole defendant. That said, the applicant filed a number of documents in the Trial Division that suggested that the respondent was not the only defendant: some documents referred to multiple defendants; others referred to the ‘defendants’ as ‘Matthew Le and others’; and others purported to identify as additional defendants a Sergeant Michael Kearnes and a ‘senior police officer’ Lucinda Nolan.
In the documents the applicant has attempted to file to commence his application for leave to appeal against the order of Zammit J, the applicant has purported to name Mr Kearnes and Ms Nolan as the ‘second defendant’ and ‘third defendant’. Neither of these people were parties to the proceeding in the Trial Division; nor were they the subject of any order made by the associate judge or the judge.
In the respondent’s written response to the applicant’s current application, the respondent takes the point that Mr Kearnes and Ms Nolan were not parties to the proceeding in the Trial Division.
It appears that, in the proceeding that he issued by way of originating motion in the Trial Division, the applicant wished to claim damages in respect of the conduct of various entities and individuals in addition to the respondent, whom he named as the defendant. For example, in the application for leave to appeal and written case document dated 22 March 2016, the applicant identifies one of the orders that he sought in the Trial Division, and that he now seeks in this Court, as (and, again, as typed by the applicant):
III. That the VICTORIA Police to pay for all the DAMAGES they caused to the Plaintiff that I represent for the:
·UNLAWFUL ARREST WITH THE MALICIOUS PROSECUTIONS (FORGERIES) AND THE INJURIES (PHYSICAL AND EMOTIONAL) WHILE IN THE POLICE OFFICER DETENTION.
·AND THE FINANCIAL LOSS CAUSED TO MY FILMING JOBS, AND THE RELEASE OF THE MOVIE ‘THE ADVENTURE OF COHOLLYINGWOOD BLACK PRINCE/Down Under ‘THAT I PRODUCED AND WHICH RELEASE HAS BEEN DELAYED BY THE ACTIONS AND AGGRAVATED ACTIONS OF THE VICTORIA POLICE OFFICERS.
I demand that the VICTORIA Police paid the sum of $ 4 806 000.
The problems with the applicant’s approach to the resolution of his complaints are manifest. Much of the relief he now claims simply formed no part of his originating motion. For example, the order referred to in the previous paragraph was not sought on any page of the applicant’s originating motion (and no application was ever made by the applicant to amend his originating motion). That said, it is sufficient for present purposes to say that what the applicant seeks to appeal to this Court is an order summarily dismissing a claim for the relief set out in the applicant’s originating motion. The applicant cannot in this Court seek to expand the width and scope of the proceeding that was dismissed in the Trial Division by now seeking to add additional parties, or to make additional claims that have not been the subject of any adjudication in the Trial Division.
While I propose to direct the Registrar to accept the applicant’s 22 March 2016 document as the applicant’s application for leave to appeal, and also as the applicant’s written case, for the purpose of the applicant seeking leave to appeal (and, if leave is granted, appealing) the order of Zammit J dismissing the appeal from the order of Ierodiaconou AsJ dismissing the proceeding commenced by way of originating motion against the respondent (and again, only for the relief sought that was sought in that originating motion), I propose to do so only on that limited basis. That is, the 22 March document is not to be taken as having been accepted for filing on any wider basis. Specifically, notwithstanding the reference to a so-called ‘second defendant’ and ‘third defendant’ in that document, the proceeding in this Court is, as I have said, an application for leave (and, if leave is granted, an appeal) against the order of Zammit J dismissing the appeal from the order of Ierodiaconou AsJ dismissing the applicant’s originating motion (which originating motion has never been the subject of any amendment or application for amendment) pursuant to s 63 of the Civil Procedure Act 2010.
The further conduct of the applicant’s proceeding in this Court
I propose to direct the Registrar to accept for filing the applicant’s document dated 22 March 2016 as the applicant’s application for leave to appeal and written case. Pursuant to r 64.15(5)(c), I will refer the applicant’s application for leave to appeal for determination by the Court of Appeal constituted by two or more judges of appeal. In my view, the application for leave to appeal (and, if leave is granted, the appeal) should be heard at the same time by a bench of two judges of appeal.[8]
[8]But see s 11(1A) of the Supreme Court Act 1986, which section permits a bench of two judges of appeal to constitute and exercise all the jurisdiction and powers of the Court of Appeal if the President of the Court of Appeal so determines.
I propose to relieve the applicant from the obligation of preparing the draft leave application book index and draft summary referred to in s 2(1) of Practice Direction No 7 of 2014. First, I am persuaded that any document prepared by the applicant would again fail to comply with the relevant rules and practice direction, and likely be productive of further unproductive dispute. Secondly, in my view, this is a case that does not require a summary. That is not to say that if either party wishes to file a short summary, of no more than four pages, that that document will not be received by the Court. Thirdly, in my view the efficient and economical resolution of the present dispute would be facilitated by the application/appeal book being compiled by a Registry officer (rather than attempting to impose this requirement upon the applicant). Subject to any order or further order of the Registrar, I would direct that the application/appeal book contain:
(a) the applicant’s originating motion and summons thereon;
(b) all affidavits filed by the applicant in the Trial Division;
(c) the respondent’s summons for judgment;
(d) all affidavits filed by the respondent in the Trial Division;
(e) the order and reasons for judgment of Ierodiaconou AsJ;
(f) the applicant’s notice of appeal against the order made by Ierodiaconou AsJ;
(g) the order and reasons for judgment of Zammit J;
(h) the applicant’s application for leave to appeal and written case dated 22 March 2016;
(i) the applicant’s affidavit in support of the present application;
(j) the respondent’s written response to the applicant’s present application and the affidavit of Mr Castle sworn 3 May 2016; and
(k) the respondent’s written case.
If there is a transcript of the hearing of the appeal before Zammit J, I would also permit that document to be part of the application/appeal book if either party so desires.
As to relevant statutory provisions and authorities that each party may wish to rely upon, ordinarily one would expect the parties to prepare a combined book containing this material. Again, however, I suspect that requiring the parties to join together and co-operate in the production of a combined book would not be productive. Each party should file with the Court of Appeal Registry folders containing the authorities and statutory provisions that they rely upon as directed by the Registrar in due course (that is, as directed by the Registrar as to the time for filing and serving, and as directed by the Registrar as to the number of copies that are required to be filed).
Finally, I propose that the hearing of the application for leave to appeal and (if leave is granted) the appeal be listed on a standard basis. This should result in the matter being listed for hearing in October or November of this year.
Conclusion
I direct the Registrar to accept for filing the applicant’s document dated 22 March 2016 and headed ‘Application for Leave to Appeal Against the Order of the Practice Court Judge Rita Zammit’ and ‘Written Case for the Appellant’ as the applicant’s application for leave to appeal and written case. The applicant is not required to prepare a draft summary or draft leave application book index. The application for leave to appeal is referred for determination by the Court of Appeal constituted by two or more judges of appeal, to be heard at the same time as the appeal (if leave is granted). The parties are each required to file and serve (as directed by the Registrar) folders containing the authorities and statutory provisions upon which they rely.
- - -
9
5
0