Fitzpatrick v Jablko - [2024] VSC 713

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST

S ECI 2024 02633

BETWEEN:

JAMES FITZPATRICK	Plaintiff
v
MICHELLE JABLKO & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 September 2024
DATE OF JUDGMENT:	19 November 2024
CASE MAY BE CITED AS:	Fitzpatrick v Jablko
MEDIUM NEUTRAL CITATION:	[2024] VSC 713

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PRACTICE AND PROCEDURE — Summary judgment application — Strike-out application — Removal of party — Alleged abuse of process — Civil Procedure Act 2010 (Vic), s 63 — Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 9.06(a), 23.01, 23.02 — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, referred to — Whether plaintiff’s claims have reasonable prospects of success or are frivolous or vexatious — Statement of claim does not disclose a cause of action — Claims have no reasonable prospects of success — Proceeding dismissed.

CONSTITUTIONAL LAW — Challenge to validity of Melbourne City Link Act 1995 (Vic) — Whether legislation permits corporation to levy tolls, issue invoices, and notify enforcement agencies of non-payment — Whether legislation impermissibly confers judicial power on private body — Whether Act is inconsistent with Australian Constitution ss 51(xx), 109 — Tolling provisions create civil liability — No conferral of judicial power upon corporation.

TORT, PRIVACY AND MENTAL HARM — Issuance of toll invoices under statutory tolling scheme — Allegations of coercion, duress, and undue influence in debt recovery — Consideration of debt collection practices — Alleged breach of Privacy Act 1988 (Cth) for disclosure of personal information to third parties — Whether toll invoices constitute legally enforceable demands absent a contract — Claims of mental harm arising from debt recovery conduct — No evidence of intent to inflict mental harm.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person
For the Defendants	Ms J Moir of counsel	King & Wood Mallesons

HER HONOUR:

Introduction and background

On 2 February 2024, a vehicle registered in the plaintiff’s name travelled on two sections of tolled road on the Monash Freeway and the Bolte Bridge. The plaintiff does not have an account with the second defendant (‘Linkt’) that enables the automatic charging of tolls to users of the tolled sections of roads operated by Linkt (described as ‘pre-arranged travel’). Accordingly, Linkt sent two letters to the plaintiff requesting payment of toll fees and administration charges (‘invoices’). The first invoice, dated 21 February 2024, sought payment of $26.99. The second invoice, dated 14 March 2024, sought payment of $41.47. Both invoices included the following notation:

If this invoice is not paid
It will become a matter for
Victoria Police

Victoria Police may issue a traffic fine of $192.31 for each 7 day period of toll road travel made without an active toll account or pass.

The plaintiff, who is self-represented, filed a writ and statement of claim on 7 May 2024, which, among other things, claims damages (including aggravated damages), of $320,000…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fitzpatrick v Jablko

Details

AGLC: Fitzpatrick v Jablko [2024] VSC 713
Case: [2024] VSC 713
Decision Date: 19 November 2024

CaseChat Overview and Summary

Fitzpatrick, the plaintiff, filed a lawsuit against Jablko, the defendant, in the Supreme Court of Victoria. The plaintiff sought damages for alleged breaches of privacy, coercion, duress, undue influence, and mental harm arising from toll invoices issued under a statutory tolling scheme. The defendant filed a summary judgment application to dismiss the plaintiff’s claims, which were subsequently expanded to include a strike-out application and a request for the plaintiff to be removed as a party. The defendant also contended that the plaintiff had abused the court process.

The court needed to determine whether the plaintiff's claims had reasonable prospects of success or were frivolous or vexatious. Additionally, the court had to assess whether the statement of claim disclosed a cause of action and if the tolling provisions of the Melbourne City Link Act 1995 (Vic) conferred judicial power on a private body, which would be inconsistent with the Australian Constitution. The court also had to examine if the plaintiff’s claims of mental harm were supported by evidence.

The court found that the plaintiff’s claims did not disclose a cause of action and had no reasonable prospects of success. The plaintiff's allegations of coercion, duress, and undue influence were not substantiated, and the court determined that the issuance of toll invoices under the statutory scheme did not constitute legally enforceable demands absent a contract. Furthermore, the court held that the tolling provisions did not confer judicial power upon the corporation, and thus were not inconsistent with the Constitution. The plaintiff’s claims of mental harm were also unsupported by evidence of intent to inflict such harm.

Consequently, the court dismissed the proceeding and ordered the plaintiff to pay the defendant's costs.

Orders