Fitzpatrick v Jablko
[2024] VSC 713
•19 November 2024
| 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 PoliceVictoria 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 against Linkt and the first defendant, Ms Michelle Jablko. Ms Jablko is the Chief Executive Officer of Transurban Ltd (‘Transurban’), the parent company of Linkt.
In his statement of claim, the plaintiff says that he did not enter into any contract with Linkt which would give rise to any entitlement on the part of Linkt to demand payment of the amounts claimed in the invoices. Accordingly, the issue of the invoices and the subsequent demands for payment amounted to ‘unlawful pressure to enter a transaction/contract’, including ‘exaction, coercion, threat, menace, and/or duress’. Various text messages said by the plaintiff to have been sent by Linkt and/or its debt recovery agent were said by the plaintiff to, among other things, amount to a breach of privacy.
Paragraphs 14 to 18 of the statement of claim stated as follows:
14.The Defendant’s actions as detailed in paragraphs 5 and 7, the defendants have applied unlawful pressure to enter into a transaction/contract.
(a) Exaction
(b) Coercion
(c) Threat
(d) Menace
(f) Duress
15.The Defendants knowingly made an unlawful adjudication and thereby also trampled underfoot and shown a complete disregard for due process and operation of law employing other Companies to attempt the enforcement of an invoice on its face is not a contract.
(a) Due process
(b) Force
(c) Threat
(d) Menace
16.The Defendants actions as detailed in paragraph 5 and 7, the defendant had intent to file a false claim of the invoice to become a matter for police in the absents [sic] of damage, loss and injury.
(a) Force
(b) Threat
(c) Menace
17.The Defendants actions as detailed in paragraph 7, the defendant maintained it had jurisdiction without due process.
(a) Force
(b) Threat
(c) Menace
18.The Defendants actions as detailed in paragraphs 5 to 13, the defendant's intent was to harass and make threat using various telecommunications breaching privacy.
(a) Breach of Privacy
(b) Menace
(c) Threat
(d) Disregard to reasonable contact times
(e) Due Process
Paragraphs 21 and 22 of the statement of claim stated as follows:
21. As a result of all matters the defendant’s intent to trespass on Person and Freedom against the will and consent of the plaintiff.
22. As a result of all matters the Defendant and agents has caused Trauma, Mental Stress, Persecution all Under Duress.
The applications
On 25 June 2024, the defendants filed a summons seeking the following relief:
1.An order that pursuant to r 9.06(a) of the Supreme Court (General Civil Procedure) Rules 2015 (Rules), that Michelle Jablko be removed as defendant to this proceeding.
2.Further and alternatively, an order pursuant to s 63 of the Civil Procedure Act 2010 (Vic) and Order 22 of the Rules that the proceeding be summarily dismissed.
3.Further and alternatively, an order pursuant to r 23.01 of the Rules that:
(a) the proceeding generally be permanently stayed; or
(b)judgement [sic] be given in the proceeding generally, in favour of the defendant(s).
4.Further and alternatively, an order pursuant to r 23.02 of the Rules that the plaintiff’s statement of claim filed on 7 May 2024 (and served on 3 June 2024) be struck out
(a) in whole; or
(b) in part.
…
The defendants seek, among other things, that the proceeding be dismissed on the grounds that the plaintiff’s claims in this proceeding have no real prospect of success. By orders made by consent on 8 July 2024, the defendants were excused from their obligation to file and serve a defence pending the hearing and determination of their summons.
On 25 July 2024, the plaintiff issued a summons seeking the following relief:
1. Proceedings to be determined on the papers. 24 September 2024, 10.00 am before the Honourable Associate Justice Daly
2. The First Defendant be joined by other parties as joint tortfeasors.
3.The First Defendant application be struck out under the doctrine of Estoppel by Acquiescence.
4.The applicant’s affidavit filed on 25th June 2024, be struck out in whole or part.
5. A judgement in default of defence to the Plaintiff.
6. Summary Dismissal of interlocutory application by the Defendants.
7. Civil Pecuniary Damages by submissions guided by ACCC.
6. Other Penalties the Court sees fit
…
The plaintiff’s summons was listed to be heard with the applications in the defendants’ summons filed on 25 June 2024.
The evidence
The defendants relied upon an affidavit affirmed by their solicitor, Mr Domenic Gatto, on 25 June 2024. Mr Gatto’s evidence relied, in part, upon instructions provided to him by Ms Caroline Newman, the Head of Legal for the Transurban group of companies (‘Transurban group’), of which Linkt is a member. In his affidavit, Mr Gatto:
(a) explained the corporate structure of the Transurban group;
(b) identified the toll roads operated in Victoria by Linkt under two agreements with the state government and the tolls approved for use of those toll roads pursuant to these agreements and the Melbourne City Link Act 1995 (Vic) (‘Act’);
(c) explained the toll invoicing and collection process for pre-arranged and non-arranged travel on CityLink;
(d) described the role of the first defendant, the CEO of Transurban;
(e) reviewed the invoices and the text messages said to have been sent to the plaintiff by Linkt and/or its recovery agents. Mr Gatto said that neither Linkt nor its recovery agent (‘Recoveriescorp’) have any record of sending any text messages to the plaintiff;
(f) deposed as to the demands made by the plaintiff upon Ms Jablko for the sums of $310,000 and $320,000; and
(g) deposed as to the communications between his firm and the plaintiff following the issue of the proceeding. The defendants invited the plaintiff to discontinue the proceeding with no order as to costs.
Exhibited to Mr Gatto’s affidavit were the following documents:
(a) extracts from the Victorian Government Gazette dated 14 December 2023 and 21 March 2024, setting out toll charges for various tolled sections of road operated by Linkt;
(b) photographs of a vehicle said to be the plaintiff’s vehicle taken on 2 February 2024;
(c) the invoices;
(d) a letter sent by the plaintiff to Ms Jablko dated 1 March 2024 (‘initial letter’);
(e) an email from ‘Bella’ from Linkt’s Customer Resolutions Team to the plaintiff dated 26 March 2024;
(f) a letter addressed to Ms Jablko from the plaintiff’s address dated 26 March 2024;
(g) an email from Recoveriescorp to the plaintiff dated 11 May 2024; and
(h) correspondence between the defendants’ solicitors and the plaintiff after the issue of this proceeding.
In the initial letter, the plaintiff stated as follows:
NOTICE
Notice to Principle is Notice to Agent. Notice to Agent is Notice to Principle
James
C/O 14 Kalinga
Street Norlane
Geelong 3214
01/03/2024Tower Five, Collins Square
727 Collins Street
Docklands Victoria 3008To:
Office of Chief Executive Officer of Transurban; and
Michelle JABLKO, holder of the above officeRe: Your presentment 10511747206 21 February 2024.
A letter was received by a corporation heading Linkt making offer to contract for the sum of $26.99 by due date 08/March 2024 with an additional fee of $29.69 and judgement of $192.31.
l peacefully do not accept the offer in lieu of there not being a negotiated contract and I am satisfied that since there is no contract then the following applies in law.
1.There must be evidence of a mutual intention from all parties for the agreement to be legally enforceable.
2. The other party ('offeree') must have accepted the offer.
3. The terms constituting the agreement must be certain.
4.Each party must have had sufficient capacity to-enter the contractual agreement
The corporation has furnished a presentment with threat undermining the legal obligation of a contract and without considering the following;
1.A corporation is under the federal jurisdiction and is taken to be under the Corporations Act 2001 that is superior to state law.
2.Australian Constitution 1901: 51. Empowers the Commonwealth Parliament to make laws with respect to: (xx) Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth
3.Australian Constitution 1901: 109. When a law of a State is inconsistent with law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
4.Australian Constitution 1901: Trade within the Commonwealth to be free. On the imposition of uniform duties of customs, trade, commerce, and intercourse among the States, whether by means of internal carriage or ocean navigation, shall be absolutely free.
5.1890 Partnership Act: Anyone born in Australia or the Commonwealth we inherent one share in the Commonwealth shareholder rights and privileges.
6.Has the Corporation rebutted our Partnership Act of 1890 to which the following apply we were never consulted on the sale of Commonwealth assets or shares as a shareholder we have the rights to use the roads to travel on, we were never consulted to have a lease agreement for tolls to private Companies and or Corporations to which are mostly foreign owned.
7.Who was the injured party, what damage was caused, and what loss was suffered?
Corporate threat:
1.Commonwealth Crimes act 1914 5.15 harm to mental health the Corporation has made threat that should payment not be made a final demand will be filed and a subsequence will be a matter for police followed by the carrying presumption of guilt penalty of 192.31 per 7 days.
2.Criminal Code 1899 s 4 71.11(2) Using a postal service to make a threat to cause serious mental harm abusing due process unlawful jurisdiction before conviction.
3.Imperial Applications Act 1980 sect8 para12. That all grants and promises of fines and forfeitures of particular persons before conviction, are illegal and void your presentment breaches this act.
Should you wish to rebut all points, point by point and forward to me with the instrument and material evidence that you rely on giving you equal to or above judicial standing.
Fee Schedule:
1. ltem17. Slavery- forced Compliance to contract not held:
Rate= The sum-certain amount of Two-hundred-and-fifty-thousand Australian Dollars ($250,000 AUD) per incident;
2.ltem28. Processing and/or responding to each letter/notice sent by mail/courier and/or email, unsolicited without consent.
Rate= The sum-certain amount of Ten-thousand Australian Dollars ($10,000 AUD) per reply:
3. Item 26. Extortion:
Rate= The sum-certain amount of Fifty-thousand Australian Dollars ($50,000 AUD) per incident;
All of the above items are independent and cumulative and I reserve all rights to adjust and change this fee schedule at any time as I choose.
These fees are separate and cumulative and will accrue Interest from the payment date of the invoice served at 5% per month cumulative. This schedule of fees is exclusive of any subsequent criminal or civil claims brought against the offender.
All payments are to be made in the following methods, in the equivalent mid-market value of the Australian Dollar as calculated either on the day of the invoice being printed, or the day of payment, whichever has the higher monetary value.
• .9999 Pure Gold (Troy weight)
•.999 Pure Sterling Silver (Troy weight, to the Bourse value of Sterling Silver)
• Bitcoin
• Australian Dollar Notes (Cash only)
• Cheques, credits and bank account deposits are not acceptable.
Offenders/recipients will have ten (10) days to dispute on the invoice served any items claimed above, with a sworn "affidavit'' of rebuttal, signed under penalty of perjury. Failure to respond in the allotted time, means full acceptance and agreement herein of the payment as indicated on the invoice by the payment date the above is not exhaustive in relation to your presentment.
The initial letter also enclosed an invoice for $310,000, payable in cash or bitcoin.
The plaintiff filed an affidavit on 8 July 2024. The first part of the affidavit contained what were largely submissions, which I will summarise later in these reasons. The plaintiff also deposed as to emails sent to him by Recoveriescorp on behalf of Linkt in May 2024 and his response, as well as text messages sent to him in March, April and May 2024 purporting to be from Linkt and/or Recoveriescorp.
The plaintiff also filed an affidavit on 24 July 2024 in support of his summons filed on 25 July 2024. Again, the contents of the affidavit in support were really submissions rather than evidence, and will be considered later in these reasons.
Mr Gatto filed and served a further affidavit on 9 August 2024. In this affidavit, Mr Gatto:
(a) corrected a date error in his earlier affidavit;
(b) provided further details (as instructed by Ms Newman) regarding the process of identifying and invoicing owners of vehicles undertaking ‘non-arranged travel’ on CityLink and what occurred in the specific case of the plaintiff’s vehicle;
(c) deposed as to Linkt’s practices with respect to the sending of text messages; and
(d) deposed as to the text messages as follows:
Based on my review of the Alleged Text Messages, those messages are not consistent with the messages sent by CML and Transurban because they:
(a) do not contain the standard text; and
(b) each contain links.
Further, the alleged text message in paragraph 6 of the statement of claim includes a reference to “EastLink”. I am informed by Ms Newman and believe that:
(a) EastLink is not owned or operated by CML or Transurban; and
(b)Text messages seeking payment of toll invoices for non-arranged travel are only sent by or on behalf of CML in relation to travel on toll roads that are owned or operated by CML or Transurban.
I am informed by Ms Newman, and believe that:
(a)CML and Transurban do not have any record of sending the Alleged Text Messages.
(b)Transurban made enquiries with Recoveriescorp about communications from Recoveriescorp to the plaintiff. Based on those enquiries, Recoveriescorp does not have any record of sending any of the Alleged Text Messages to the plaintiff.
Scam Messages
Linkt is Transurban’s single brand for the supply of its electronic tolling services to motorists in Australia.
I am informed by Ms Newman and believe to be true that, throughout 2023 and 2024, Linkt customers (and the public more broadly) received SMS messages that are scams using Linkt branding, sent from third parties. Transurban has published information on these scams to inform potential victims. ...
I am also informed by Ms Newman and believe to be true that Transurban has established a program enabling recipients to report suspicious messages as scam, to help track, block and prevent future scams. …
Mr Gatto exhibited to his affidavit extracts from the Linkt website providing information about suspected scam activity.
The parties’ submissions
The defendants submitted, in summary, as follows:
(a) Ms Jablko is not a proper or necessary party to the proceeding;
(b) the plaintiff’s claim has no real prospect of success;
(c) the proceeding generally, is frivolous or vexatious; and
(d) it is not possible for either defendant to discern what case they need to meet, the statement of claim does not disclose a cause of action and significant parts of the statement of claim are unintelligible.
The defendants also opposed the orders sought by the plaintiff in his summons filed on 25 July 2024.
In relation to 18(a) above, the defendants submitted that the plaintiff has no genuine right of action against Ms Jablko, and there is no factual or legal basis for concluding that she may be personally liable to the plaintiff, the first defendant having had no personal involvement in the relevant transactions or communications. As such, Ms Jablko is neither a necessary or proper party to the proceeding, and should be removed as a party to the proceeding.
In relation to 18(b) above, the defendants referred to the principles governing applications made pursuant to s 63 of the CPA, and submitted that:
… [g]iven that the provisions of the Act expressly provide for [Linkt] to request payment of tolls and toll administration fees, the [plaintiff’s] claim is fundamentally misconceived.
The defendants submitted as follows (footnotes omitted):
Aspects of the [statement of claim] are unclear or unintelligible, but it appears that the gist of the plaintiff’s claim is that:
(a)there was no contractual obligation which required him to pay the relevant tolls and administration fees …;
(b)in the absence of any such contractual obligation, communications seeking payment of the relevant tolls and administration fees were unlawful; among other things, the [statement of claim] mentions negligence, breach of privacy and coercion …; and
(c)the plaintiff suffered harm as a result of those communications and is entitled to payment of damages and an invoiced amount….
It appears that the premise of the plaintiff’s claim is that there was no legal basis for the second defendant to seek payment of the relevant tolls and administration fees. However as set out in detail above…, the Act provided a legal basis for the second defendant to fix, charge and collect tolls. In particular, the legislation expressly provided for [Linkt] to request make a request for payment of relevant tolls and toll administration fees (see s 72B(1)(a) of the Act and 77(1)(a) of the Act).
The defendants observed that while it is unclear from the statement of claim and the evidence whether the plaintiff was driving his vehicle at the relevant time, nothing turns upon the identity of the driver of the vehicle at the relevant time for present purposes, given that the Act provides for the operator of the vehicle (being the registered owner of the vehicle) to be the driver for the purpose of levying and enforcing toll charges.
In relation to the invoices, emails, and text messages, the defendants submitted as follows:
(a) the invoices complied with the requirements of the Act;
(b) the language of the invoices and the emails was civil and reasonable;
(c) there is no record of any of the text messages having been sent by either Linkt or Recoveriescorp; and
(d) the reference in the invoices and the emails to a potential referral to Victoria Police if the invoices remained unpaid was accurate and reasonable, given that the Act provides for infringements of the Act to be referred to Victoria Police.
In relation to the plaintiff’s claim for a ‘debt amount’ of $320,000, the defendants submitted as follows (footnotes omitted):
The plaintiff claims a “Debt Amount” of $320,000 …. the plaintiff appears to assert that because the first or second defendant “did not address the dispute or rebut” the content of his letter dated 21 February 2024, they are liable to pay $310,000 to him. The plaintiff refers to “acquiescence”. However, the plaintiff has not disclosed any legal basis for any obligation, on the part of either defendant, to pay the amount said to be owing: a person cannot create an obligation to pay a debt simply by making a unilateral assertion that a sum of money is owed.
In relation to the defendants’ application to stay or obtain judgment in the proceeding pursuant to r 23.01 of the Rules, the defendants referred to the explanation of the phrase ‘frivolous and vexatious’ in the authorities, submitting as follows:
Where an application under r 23.01(1) is brought by a defendant, “the contention is usually that by no proper amendment of the pleading can the plaintiff raise a good cause of action because the claim so completely lacks foundation in fact or law that no legitimate pleading amendment could save it”.0F[1]
The plaintiff’s claim is frivolous and vexatious. The claim lacks a legal basis or merit for reasons set out in detail at [46] to [52] above. In short: because the Act expressly provided for the second defendant to request payment of the relevant tolls and toll administration fees, the claim does not raise any good cause of action. The claim is groundless.
[1]Charleton v The Department of Education and Training Victoria [2024] VSC 141 [29].
In relation to the defendants’ application to strike-out the statement of claim, the defendants referred to the principles governing the requirements for pleadings, commented upon a number of specific paragraphs of the statement of claim and submitted as follows:
On the face of the pleading, no reasonable cause of action is established. It is unclear which defendant (or defendants) the allegations are made against, what cause of action is relied upon and what the allegations mean.
The pleading is not presented in an intelligible form.
It is not possible for either defendant to discern what case they need to meet.
In relation to the plaintiff’s application in his summons filed on 25 July 2024, the defendants made the following observations about the orders sought by the plaintiff:
(a) it is not clear which other parties are sought to be joined and the basis for their joinder;
(b) there is no factual basis for asserting that the defendants have acquiesced to the plaintiff’s strike-out application;
(c) it is unclear what is meant by the application that ‘the second defendant be struck out’, or the basis for such an application;
(d) there is no basis for striking out Mr Gatto’s first affidavit, or for summarily dismissing the defendants’ applications, or for judgment in default of defence, given that the defendants have been relieved of the obligation to file a defence;
(e) the plaintiff has not disclosed any basis for the award of ‘civil pecuniary damages’ or penalties; and
(f) the defendants intend to seek their costs of responding to the plaintiff’s application as ‘[p]arts of the application are unintelligible and the plaintiff has not disclosed the legal and factual basis for many of the orders that are sought.
In her oral submissions at the hearing of the applications, counsel for the defendants submitted that the plaintiff’s claim in this proceeding:
is fundamentally untenable, because there is a legislative basis for [Linkt] to fix tolls, to charge tolls and to collect tolls. And the legislation, importantly, expressly provided for [Linkt] to make a request for payment of the relevant tolls and the toll administration fees.
During the course of the hearing, counsel for the defendants surveyed the provisions of Part 4 of the Act in support of the defendants’ submission that issuing the invoices to the plaintiff was authorised by the Act. Counsel noted that, in response to the plaintiff’s complaint that the link to the online nomination form1F[2] was defective, in none of the communications between Linkt and the plaintiff did the plaintiff contend that he was not the driver of the vehicle, nor that his vehicle did not travel on tolled sections of road on the day in question. In any event, it would have been open to the plaintiff to telephone Linkt if he could not have made any nomination online.
[2]By which the plaintiff could have submitted to Linkt the details of an alternative driver.
Counsel for the defendants submitted that the contents of the invoices complied with the requirements of s 72B of the Act, and the language and tone of all relevant communications was civil and reasonable. There was nothing improper about reference being made to the possibility of the matter being referred to Victoria Police: that possibility is expressly contemplated by s 77 of the Act.
Counsel for the defendants submitted that the plaintiff has not disclosed any legal basis for the claim in the ‘statement of debt owed’. There has been no acquiescence on the part of the defendants, because there is no legal basis for any obligation on the part of either defendant to pay the amount said to be owed.
Counsel for the defendants rejected the assertion by the plaintiff to the effect that Mr Gatto made a false statement in his affidavit regarding Ms Jablko’s involvement in the dispute between the plaintiff and Linkt.
Finally, as for the plaintiff’s contention that the provisions of the Act relied upon by Linkt were invalid because they impermissibly conferred judicial power upon Linkt, counsel for Linkt submitted as follows:
MS MOIR: Your Honour, the actions that are taken in accordance with the provisions of the legislation are not judicial actions. …
The actions that are taken in issuing a toll invoice, sending a further notice that the amount remains outstanding and communicating to seek recovery of an amount that's owing under the legislative regime, those are not judicial actions. Those are actions expressly provided for by the legislation which are not of a judicial nature. In the event that a person has driven on the CityLink toll road without having registration in the sense of having a valid account or pass and that person has committed an offence under the Act, the 2nd defendant doesn't establish a tribunal and find that the person has committed an offence and then levy a penalty.
Rather those matters, in accordance with the provision that I mentioned earlier, are referred to an enforcement agency and those judicial aspects of the process - - -
HER HONOUR: Occur elsewhere.
MS MOIR: - - - occur elsewhere within the courts. So those are matters for an enforcement agency and any decision about whether an offence has been committed is ultimately a matter for a court. …
As indicated earlier in these reasons, the affidavits relied upon by the plaintiff contained submissions as well as evidence.
In his affidavit of 8 July 2024, the plaintiff made the following submissions:
(a) by casting the obligation to pay tolls upon the operator of a vehicle rather than the driver of the vehicle, the invoices contravene the presumption of innocence;
(b) the invoices are not legally valid as there is no valid contract between the plaintiff and Linkt;
(c) the police have no authority to intervene in civil disputes;
(d) the Constitution of Australia (‘Constitution’) precludes corporations from exercising judicial power;
(e) the CEO of Transurban is responsible for the conduct of Linkt, and should be accountable for its actions. The only correspondence the plaintiff had with Linkt was with Ms Jablko.
Further, the plaintiff referred to the principle that ‘no one is above the law’ and the ‘doctrine of acquiescence’, and stated as follows:
…It is unlawful to use physical force, undue harassment or coercion in connection with the supply or possible supply of, or payment for, products or services (including an interest in land).
Undue harassment means unnecessary or excessive contact or communication with a person, to the point where that person feels intimidated, tired or demoralised.
Coercion involves force (actual or threatened) that restricts another person's choice or freedom to act.
Unlike harassment, there is no requirement for behavior to be repetitive in order to amount to coercion.
In his further affidavit of 24 July 2024, the plaintiff submitted, in summary, as follows:
(a) Linkt’s contention that it has contracts with and authority from the State Government does not permit it to circumvent or contravene people’s rights, as this would contravene the separation of powers provided for within the Constitution;
(b) Parliament cannot confer judicial power on a non-judicial body, and vice-versa;
(c) the Constitution provides that where a law of a state is inconsistent with the law of the Commonwealth, the latter shall prevail;
(d) the Act refers to a ‘vehicle’, not the ‘owner, operator or driver of a vehicle’;
(e) Linkt is relying on photographic evidence of a vehicle that shows only the number plates of the vehicle, not the vehicle identification number, and the identity of the driver of the vehicle cannot be discerned from the photographs in evidence;
(f) the invoices are not legally binding agreements, and do not disclose sufficient information to allow a person to dispute their liability to pay the invoice;
(g) s 71 of the Act does not permit Linkt to unlawfully charge a registered owner of a vehicle;
(h) the invoices do not have debt collection clauses which permit Recoveriescorp to pursue unpaid invoices on behalf of Linkt;
(i) no body other than a court has the power to levy fines;
(j) the defendants have breached the prohibitions on harassment and coercion in the Australian Competition and Consumer Act 2010 (Cth) and the Australian Securities and Investments Commission Act 2001 (Cth);
(k) the invoices are defective, and lack necessary information;
(l) he has never emailed ‘Bella’ of Linkt or anyone else to dispute the invoices;
(m) the doctrine of estoppel by acquiescence applies;
(n) he has not paid the amounts demanded in the invoices because he is not obligated to pay someone else’s debt, and the evidence does not establish that he owed the debt; and
(o) the sending of the text messages has invaded his privacy, and his private information has been given to third parties.
The plaintiff exhibited the following documents to his affidavit:
(a) extracts from the Constitution;
(b) extracts from other Commonwealth and Victorian legislation, including the Act and the Privacy Act 1988 (Cth);
(c) a web page of a provider of a ‘global invoicing software platform’ titled ‘Is an invoice a legal document? Here’s what to know’;
(d) a profile of Ms Jablko in the ‘Australian Financial Review’;
(e) a quick guide to directors’ duties prepared by the Parliamentary Library;
(f) extracts from the Linkt website regarding the transfer of accounts;
(g) an explanation of the doctrine of acquiescence from Wikipedia;
(h) a guide to directors’ liabilities published by ASIC;
(i) a guide for debt collection activities published by the ACCC; and
(j) the Australian Privacy Principles with respect to the use and disclosure of personal information.
On 19 August 2024, the plaintiff filed a lengthy written outline of submissions, much of which repeated the matters referred to in his affidavits, and much of which was difficult to follow. In the interests of brevity and expedition, I do not propose to reproduce or summarise those submissions at length in these reasons. During the course of the hearing of the applications, the plaintiff agreed that a document filed by him on 19 September 2024, titled ‘Additional Material: Proposed Statement of Agreed Facts and Admissions’ (‘agreed statement of facts’) concisely and accurately summarised his submissions with respect to the current applications.
The agreed statement of facts included the following submissions:
False Statement
1.The affidavit filed by the defendant's legal representative Mr Gatto dated 25 June provided evidence by a statement.
2.the defendant had not instructed or directed anyone to communicate with the plaintiff this statement was also supported in a written submission by Counsel for the defendant Ms. Moir dated 9 August 2024.
3.A false statement was made and the defendant knowing this statement was false deposed an affidavit under oath to an authorized person.
4. The only communications made were to the CEO Michelle Jablko.
5.The supporting evidence is the letter from Bella by email on 26 March 2024.
Jurisdiction
6.The corporation is incorporated under section 51xx of the Australian Constitution 1901.
7.The corporation is not a Judicial body under Chapter 3 of the Australian Constitution 1901.
8.The corporation's subsidiary entity made a false representation of communications that enabled an extension of the invoice.
9. The supporting evidence is the extension invoice 4 June 2024
10.The second page of the invoices is coercive in substance and meaning as a threat.
11.The nomination link is faulty preventing anyone to dispute who the driver could have been.
12.The supporting evidence on page 2 of the invoices and the email from Bella.
13.The supporting evidence screenshot of the link showing to transfer account.
Invoice legality
14.The invoice is not a legally enforceable document until it has been proven in a court of law.
Irrelevant Evidence sect 55 evidence act.
15.The 2 photos have no relevance to the driver under section 71 of the Act a vehicle that has travelled on a toll.
16.The 2 photos have not been authenticated as belonging to the vehicle and not just by the plate as the plates could have been copied or forged.
17.The plaintiff seeks to adduce the evidence as an admission made against the opposing party’s own interests.
Paragraphs 1 to 5 of the agreed statement of facts are relevant to the defendants’ application that Ms Jablko be removed as a party to the proceeding. Paragraphs 6 to 13 of the agreed statement of facts largely go to the validity of Part 4 of the Act, and thus go to the viability of the plaintiff’s claims in this proceeding. Paragraphs 14 to 16 of the agreed statement of facts go to the liability of the plaintiff to pay the sums claimed by Linkt in the invoices. Paragraph 17 is unintelligible.
The agreed statement of facts also put forward some additional submissions in opposition to the defendants’ application for summary judgment. In particular, the plaintiff referred to some of the authorities regarding the principles applicable to applications for summary judgment, and in particular, the principle that the Court’s discretion to grant summary judgment should be exercised with great caution. These submissions are uncontroversial.
In the agreed statement of facts, under the heading ‘Whether Professional Negligence duty of care’, the plaintiff submitted that legal practitioners owe a duty to him and the Court to ‘disclose a lie that has been committed as soon as possible’. The plaintiff then referred to a High Court decision regarding claims for pure psychiatric injury arising from a mistake made by a police officer. The plaintiffs’ submissions concluded as follows:
The breach of duty is satisfied as the failure to discharge their responsibilities and duty of care resulting in the emotional and psychological impact that was foreseeable. It has been placed on the plaintiff to prove that the duty to the proper administration of justice has not been exercised I submit the defendants took advantage of the plaintiff not knowing the process and procedures
lawyer’s paramount duty is to the court as part of the duty to the proper administration of justice. means they have this additional level of responsibility and that they may not be driven by their client's wishes alone.
Referring to my written submissions, affidavits and proposal I have raised the matter of the false statement that the plaintiffs [sic] failed to address or provide a defence or explanation and the failure to discharge their duty. I conclude my claim satisfies the legal requirements for professional negligence.
Notwithstanding the reference to ‘professional negligence’ in the plaintiff’s submissions, at the hearing of the application the plaintiff clarified that the submissions above were intended to highlight the duties owed by legal practitioners to the Court and other parties, not to signal claims which might be made by him against the defendants’ solicitors and counsel.
During the course of his oral submissions in the course of the hearing, the plaintiff explained in further detail his assertion that the statement made by Mr Gatto in his first affidavit regarding Ms Jablko’s involvement in this matter was false. He confirmed his submission that the invoices were invalid because the Constitution does not permit Parliament to confer judicial power on non-judicial bodies. He submitted that the evidence relied upon by Linkt does not establish the validity of the number plates on the vehicle photographed driving on the toll roads, or that he was the driver of the vehicle. And the invoices do not comply with the requirements of the Australian Taxation Office for tax invoices.
The plaintiff submitted that the defendants have not proven that he was the driver of the vehicle, and he was the unable to dispute the validity of the invoices because of the faulty Linkt website. The validity of the invoices must be proven in court, and there is no provision in the invoices for their validity to be tested in court. The reference in the invoices to the matter being referred to the police is coercive conduct, and there is no avenue for dispute resolution.
The plaintiff submitted as follows:
MR FITZPATRICK: - - - I – I believe that’s sort of like stands in this regard where the Transurban have got unfettered power to basically just, ah, you know, to remove your rights in terms of court action and stuff like that and– and if we sort of like relay back to the invoice and it’s always gonna go back to the invoice of the misrepresentation and – and – and things like that and from my perception and – and pretty much for everybody else's perception that the coercion is involving the police in a civil – what would be a civil matter in the
– in the beginning has now turned into a criminal, um, ah – a criminal act. But there's no real evidence of that act being committed apart from a registered vehicle by number plate.
Discussion
Paragraphs 1 to 5 of the statement of agreed facts (see paragraph 41 above) concern a statement made by Mr Gatto in his first affidavit to the effect that he was instructed by Ms Jablko that she did not direct or instruct any person to issue an invoice to the plaintiff, she did not send any communication to the plaintiff, and did not direct or instruct any person to send communication to the plaintiff. The plaintiff says that this evidence must be false, and that criminal and civil consequences should follow.
This evidence was given in support of the defendants’ application that Ms Jablko be removed as a defendant to the plaintiff’s claims in this proceeding. The defendants submitted that the uncontested evidence shows that Ms Jablko had no dealings with the plaintiff, and gave no instructions with respect to communications with the plaintiff.
The plaintiff says that evidence must be false. The initial letter was addressed to Ms Jablko and sent by registered mail to her office. It is an offence for anyone other than the addressee to open mail. He had no contact with Bella prior to receiving her email, contrary to the statement in her email to him. Therefore, the only inference that can be drawn is that Ms Jablko instructed Bella to reply to the plaintiff on her behalf, and accordingly, her instructions to her solicitors must be incorrect.
I do not accept that the evidence of Mr Gatto is false. The initial letter was addressed to the ‘Office of Chief Executive Officer of Transurban’ and Ms Michelle Jablko. In any event, it seems to me to be an unremarkable proposition that the CEO of a major Australian public company would have staff review all correspondence directed to the CEO, and, if it did not require her personal attention, direct it to the appropriate part of the organisation for response. Nothing turns on the fact that Bella referred to an ’email’ rather than a ‘letter’ in her email. That issue is a red herring.
Given that I see no reason not to accept Mr Gatto’s evidence, there is no reason why Ms Jablko needs to be a defendant to this proceeding. The conduct sought to be attacked by the plaintiff is the conduct of Linkt. It is Linkt which is authorised by the Act to levy and collect tolls. It is Linkt which instructed Recoveriescorp to enforce the invoices, and it is Linkt which has the option of reporting any alleged infringement to Victoria Police. There can be no suggestion that Linkt is not able to meet any damages claim. Ms Jablko is not a necessary or proper party to the proceeding, and should be removed as a party to the proceeding.
Turning now to the defendants’ substantive applications, it is not necessary for the purpose of these reasons to give extensive consideration to the defendants’ strike-out application or stay application, or the applications in the plaintiff’s summons. The statement of claim in its current form is clearly defective, in that it does not disclose a cause of action, and ought to be struck out. The applications in the plaintiff’s summons largely mirror the applications in the defendants’ summons. Rather, the real issue in the current applications is whether, exercising the degree of caution the authorities require in applications for summary judgment, 2F[3] the plaintiff’s claims in this proceeding have any real prospect of success. In the current case, the proper approach involves considering whether the factual allegations in the statement of claim could possibly give rise to a cause of action known to the law.
[3]Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27.
A central issue is whether the terms of the Act permit Linkt to levy the tolls, issue the invoices, and take any subsequent enforcement action, as well as whether the plaintiff’s contentions regarding the constitutional validity of the relevant provisions of the Act have any merit. As will be seen from the following discussion, the validity or otherwise of the Act is critical to the question of whether the plaintiff has a viable cause of action against the defendants or either of them.
Turning first to what cause of action the plaintiff may have against Linkt, it is important to note that a claim for damages cannot be made in a vacuum. A plaintiff claiming damages must establish that the defendant breached an obligation owed to the plaintiff by reason of the legal relationship between them, or by reason of the defendant’s duty to avoid causing harm to them.
There is clearly no relationship between the plaintiff and Linkt which would give rise to any such obligation. The plaintiff is correct to say there is no contractual relationship between him and Linkt. There is clearly no relationship of a fiduciary kind. Accordingly, no cause of action based in contract or equity is available to the plaintiff.
Therefore, in order to establish any liability on the part of Linkt, the plaintiff must identify a cause of action based in tort. It is not necessary for me to catalogue all of the causes of action available in tort. Given that the plaintiff makes no claim for damages for physical injury or property damage, the only potential causes of action available to the plaintiff in tort are a cause of action based upon either negligent or intentional misstatements or misrepresentations, such as deceit.
For the reasons which follow, any claim the plaintiff may have arising from the causes of action outlined above has no real prospects of success.
For present purposes, I am prepared to assume that, if Linkt made false representations to the plaintiff stating that he was liable to pay the amounts said to be owing under the invoices, then the plaintiff may arguably have a claim in negligent misstatement or deceit. However, I do not propose to analyse in any detail the specific elements of any such claims, or any defences to such claims Linkt may have. The fundamental difficulty with any such claim is that, to the extent that the invoices amounted to a representation that the plaintiff is liable to pay the invoices, those representations were correct, because the scheme enacted by Part 4 of the Act did render the plaintiff liable to pay the invoices, and any challenge by the plaintiff to the validity of the Act would have no real prospects of success.
Sections 70 to 72 of the Act provide as follows:
70.Relevant corporation may fix, charge and collect tolls and toll administration fees
(1)The relevant corporation may fix, charge and collect tolls for the use of vehicles in a toll zone and toll administration fees but may do so only in accordance with this Act and the Agreement or the Extension Agreement (as the case requires).
(2)The tolling system that complies with the Agreement, the Integration and Facilitation Agreement or the Extension Agreement (as the case requires) is not a surveillance device within the meaning of the Surveillance Devices Act 1999.
71. Fixing of tolls and toll administration fees
(1)The relevant corporation in accordance with this Act and the Agreement or the Extension Agreement (as the case requires), by notice published in the Government Gazette—
(a)may specify toll zones on the Link road or the Extension road; and
(b)may fix tolls which are payable in respect of the use of vehicles on toll zones.
(1A)If the Agreement or the Extension Agreement (as the case requires) expressly provides for the fixing of a toll administration fee under this subsection, the relevant corporation, in accordance with this Act and the Agreement or the Extension Agreement (as the case requires), may, by notice published in the Government Gazette, fix toll administration fees that are payable to it and specify the circumstances in which they are payable.
…
(4)In any proceedings under this Part, the production of a Government Gazette purporting to contain a notice under subsection (1) or (1A) is evidence of the valid publication of the notice and of the fixing of the toll or toll administration fee in accordance with this Act and the Agreement or the Extension Agreement (as the case requires).
72 Liability to pay toll and toll administration fees
(1)Subject to this Part, a person who is the driver of a vehicle used in a toll zone is liable to pay to the relevant corporation—
(a) the toll charged by the relevant corporation for that use; and
(b) the relevant toll administration fee charged by the relevant corporation.
(2) Subject to subsection (3), the operator of a vehicle or, in the case of a vehicle that is attached to a trailer and the operator of the vehicle cannot be identified by a tolling device, the operator of the trailer, is taken to be the driver of that vehicle for the purposes of subsection (1).
(3)The operator of a vehicle or trailer is not liable under subsection (2) to pay a toll and the relevant toll administration fee for the use of the vehicle or trailer in a toll zone if, within 28 days after being notified of the non-payment of the toll and toll administration fee, the operator gives to an authorised person—
(a) an illegal user statement; or
(b) a known user statement; or
(c) a sold vehicle statement—
and the authorised person accepts the statement as an effective statement for the purposes of this Part.
Section 72(1) of the Act imposes the liability to pay tolls upon the driver of a vehicle used in a toll zone. The section provides that the operator of a vehicle is taken to be the driver of the vehicle unless the operator establishes to the satisfaction of Linkt that the vehicle has been sold, has been used illegally, or was driven by someone else at the relevant time. Section 69 of the Act provides that the operator of the vehicle is the registered operator of the vehicle under the Road Safety Act 1986 (Vic). The plaintiff does not dispute that he is the owner of the vehicle bearing number plates identical to those shown by the photographs put in evidence by Linkt.3F[4]
[4]Although he does say there is no proof that these number plates were not stolen.
Part 4 of the Act also provides for the charging of tolls by Linkt, and separately, creates offences for driving unregistered vehicles4F[5] in toll zones.
[5]‘Unregistered’ in this context means vehicles whose owners do not hold an account with Linkt enabling pre-arranged travel, not ‘unregistered’ in the sense commonly understood.
Section 72B of the Act provides as follows:
Charge of toll
(1)A relevant corporation may make a request for payment of a toll for the use of a vehicle in a toll zone and any relevant toll administration fee from—
(a) the operator of the vehicle; and
(b)the person nominated in a known user statement or a sold vehicle statement that has been accepted by an authorised person as an effective statement; and
(c)in the case that the vehicle is attached to a trailer and the operator of the vehicle cannot be identified by a tolling device, the operator of the trailer.
(2) A request for payment—
(a) must be in writing; and
(b)must identify separately each use for which a toll or toll administration fee is payable.
Section 73 of the Act provides as follows:
Offence to drive unregistered vehicle in toll zone
(1)A person must not drive a vehicle in a toll zone unless the vehicle is registered under this Part in respect of that toll zone by the relevant corporation at that time.
Penalty: 10 penalty units.
(2)If during the course of a trip a person commits an offence against subsection (1), the person is guilty of only one offence against that subsection, regardless of how many toll zones the person drives in during the course of that trip.
(3)In a proceeding for an offence against subsection (1), it is a defence to the charge for the driver to prove that he or she believed on reasonable grounds, at the time the offence is alleged to have been committed, that the vehicle—
(a)was registered under this Part in respect of the relevant toll zone by the relevant corporation; or
(b)was covered by a tollway billing arrangement that was not suspended at the time the offence is alleged to have been committed.
(3A)In a proceeding for an offence against subsection (1), it is a defence to the charge for the driver to prove—
(a)that he or she received, or was issued, an invoice in respect of the trip that is the subject of the charge; and
(b)that the invoice was paid in full (even though it may also have related to trips other than the trip that is the subject of the charge) in any manner, and within the time, permitted by the invoice.
(3B)In subsection (3A), "invoice" means a request for the payment of a toll in respect of the trip and any associated toll administration fee.
(3C)A certificate purporting to be given by the tollway operator certifying that, at the time the offence is alleged to have been committed, the tollway billing arrangement was suspended, is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof that, at that time, the tollway billing arrangement was suspended.
...
(8)On a person being found guilty of an offence under subsection (1), any debt that arose under section 72 as a result of the person driving in the toll zone in the vehicle that was the subject of the offence is extinguished.
...
Section 77 of the Act provides as follows:
Relevant corporation or authorised person may notify enforcement agency of non-payment of toll5F[6]
[6]Section 69B of the Act provides that an authorised person is someone authorised in writing by Linkt. There is no evidence as to who is an authorised person under s 77 of the Act.
(1)If the relevant corporation or an authorised person believes, on reasonable grounds, that a vehicle that is not registered under this Part in respect of a particular toll zone has been driven in that toll zone in contravention of this Part, the relevant corporation or authorised person may do any or all of the following at any time—
(a)send a request for payment of the toll and toll administration fee payable in respect of the use of the vehicle in the toll zone to any person who appears to be liable to pay the toll and fee; or
(b)if the toll and toll administration fee have not been paid in accordance with the processes set out in the Agreement or the Extension Agreement, notify the enforcement agency of that belief and request the enforcement agency—
(i)to send a request for payment of the toll and toll administration fee payable in respect of the use of the vehicle in the toll zone to any person who appears to be liable to pay the toll and fee; or
(ii) to serve an infringement notice under section 80 on—
(A) the operator of the vehicle involved in the offence; or
(B)the person nominated by an authorised person in a tolling nomination statement; or
(iii)to commence proceedings in respect of that offence under this Part.
(1A)If the relevant corporation or an authorised person, believes, on reasonable grounds, that a vehicle that is not registered under this Part has, in respect of a particular toll zone, been driven in that toll zone in contravention of this Part, the relevant corporation may notify the enforcement agency of that belief and request the enforcement agency to send a notice of the requirement to be registered under this Part in respect of that toll zone to the operator of the vehicle concerned.
(2)Nothing in subsection (1) requires the relevant corporation or an authorised person to notify the enforcement agency of an offence under this Part.
(3)After a request is made to the enforcement agency under subsection (1)(b)(ii), the relevant corporation may withdraw that request if the relevant corporation considers it appropriate to do so having regard to the circumstances of the person in respect of whom the request was made.
(4)If the relevant corporation withdraws a request under subsection (3), it must notify the enforcement agency of that withdrawal.
(5)On receiving a notification under subsection (4), the enforcement agency must withdraw any infringement notice served in respect of the request that the relevant corporation has withdrawn under subsection (3).
Sections 78 to 89 of the Act govern what may occur after Linkt makes a notification to an enforcement agency. The enforcement agency may send a notice requesting payment of the toll and toll administration fee, and/or, if it chooses, an infringement notice with respect to any suspected offence under s 73 of the Act. Under s 84 of the Act, if the person to whom an infringement notice is addressed pays the penalty specified in the infringement notice, their liability to pay tolls under s 72 of the Act is extinguished.
Sections 85 to 89 of the Act govern any proceedings with respect to offences under s 73 of the Act, most of which are not relevant for present purposes. However, s 87A(6)(c) contemplates a person to whom an infringement notice has been issued electing to have the matter heard and determined in the Magistrates’ Court under Part 2 of the Infringements Act 2006 (Vic) (‘Infringements Act’). Sections 88 and 89 of the Act include various evidentiary provisions that apply to such proceedings. In particular, s 88 of the Act provides as follows:
Proof that vehicle driven in toll zone
Without prejudice to any other method of proving the relevant fact, if the fact that a vehicle was driven or a trailer was towed in a toll zone is relevant in proceedings for an offence against section 73(1) or for the recovery of a debt, evidence of that fact as indicated or determined by—
(a) a prescribed tolling device that was used in the prescribed manner; or
(b) an image or message produced by a prescribed process—
is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the fact.
A number of observations can be made regarding the statutory scheme enacted by Part 4 of the Act. First, the Act clearly authorises Linkt to levy charges on vehicles using toll roads, and prescribes the information required to be included in any written notifications to the registered owners of the relevant vehicle. Whether the relevant notice is described as an ‘invoice’ or not is immaterial for present purposes, provided that the notice contains the prescribed information.
The Act clearly imposes a liability to pay tolls upon the registered owners of vehicles used on toll roads, subject to the specific exceptions set out in s 72(3) of the Act. The plaintiff did not, within 28 days of the date of the invoices, provide Linkt with the information necessary to remove his liability to pay the tolls and administration charges. As the registered owner of the vehicle, he is therefore liable to pay the tolls and administration charges.
However, reading the provisions of Part 4 of the Act as a whole makes it clear that the only liability imposed upon a driver of a vehicle on a toll road by s 72 of the Act is civil in nature. While s 73 of the Act provides that it is an offence for a person to drive an unregistered vehicle in a toll zone, Linkt’s only role in enforcement of any alleged infringements is to report alleged infringements to an enforcement agency. An ‘enforcement agency’ is defined in s 3 of the Act as follows:
… the Chief Commissioner of Police or, if another person is prescribed by the regulations to be the enforcement agency with respect to all or any part of the enforcement agency’s functions, that other person in respect of those functions.
Sections 79 to 89 of the Act make it clear that Linkt has no role in the prosecution and conduct of infringement proceedings other than in a role akin to a complainant or witness. Section 80 provides that any alleged infringement is an infringement offence within the meaning of the Infringements Act. Section 16 of the Infringements Act provides that any person in receipt of an infringement notice may elect to have the matter (being any prosecution for any infringement of the Act) heard and determined by the Magistrates’ Court.
The plaintiff submitted that the provisions in Part 4 of the Act, which enable the charging by Linkt of tolls to toll road users, are invalid because Parliament is not authorised to confer judicial power on a non-judicial body. This is not the occasion to canvass the merits of that proposition in any detail (noting that the constitutional position is somewhat more nuanced at the state level compared with the position at the federal level), because the underlying premise of the plaintiff’s argument is simply not correct. Part 4 of the Act does not confer any judicial power upon Linkt. It creates a civil liability to pay tolls and, separately, an offence for driving a vehicle in a toll zone. However, as noted above, Linkt’s only role in any prosecution of any offence is the provision of information to the enforcement agency (presumably a dedicated agency within Victoria Police) which then has carriage of any enforcement action. Linkt is not the prosecutor or decision-maker when it comes to the determination of whether an offence has been committed: a person in the position of the plaintiff retains the right to defend any prosecution in the Magistrates’ Court.
Similarly, in any civil action brought to recover any debt due to it, Linkt would only be the plaintiff, not the decision maker. Linkt could take legal action to recover the amounts said to be owing to it under the invoices, but the plaintiff would be entitled to resist any such claim in court. Part 4 of the Act does not, impermissibly or otherwise, confer any judicial power upon Linkt.
Accordingly, Part 4 of the Act is valid, and in representing to the plaintiff that he is liable to pay the amounts demanded in the invoices, Linkt has not made any false statements or actionable representations. The plaintiff has no tenable or viable cause of action based upon deceit or negligent misrepresentation.
For completeness, while this was not expressly referred to in the statement of claim, in his submissions, the plaintiff referred to the conduct of the defendants causing him mental harm. There is a recognised cause of action in tort based upon the intentional infliction of mental harm, where liability for damages may be established where a person wilfully did an act calculated to cause harm to another, and in fact caused harm in the form of a recognised psychiatric or psychological illness.6F[7] However, even if the plaintiff could articulate a claim of that nature, and establish that he had suffered a recognised psychiatric or psychological injury by reason of the defendants’ conduct, I cannot possibly see how the conduct of Linkt in exercising its rights under Part 4 of the Act to levy toll charges and administration fees and pursue debt recovery action could give rise to a finding that it had conducted itself in a way as to intentionally inflict mental harm upon the plaintiff. As observed by counsel for the defendants, the tone and language of all communications between Linkt and its agents were civil and respectful. And, while it is not necessary for me to reach any firm conclusions on the issue, the text messages received by the plaintiff appear to bear all the hallmarks of scam communications noting that some of the text messages purport to be from another toll road operator, not Linkt.
[7]Wilkinson v Downton [1897] 2 QB 57. See also Giller v Procopets (2008) 24 VR 1.
Finally, I accept the defendants’ submissions that the plaintiff’s contention that the defendants’ failure to respond to the plaintiff’s demand for payment amounted to acquiescence in circumstances where there was no legal basis for the plaintiff to make such a demand.
Accordingly, the plaintiff’s claims in this proceeding have no real prospects of success. The defects in the statement of claim are not capable of being cured by amendment. Accordingly, there is no need to consider the applications in the plaintiff’s summons.
For completeness, I have not addressed the plaintiff’s contentions that Linkt has not established that he was the driver of the vehicle at the relevant time, or that the vehicle was the vehicle registered to him. In the event that the plaintiff is subject to any civil action or criminal proceeding in respect of the unpaid invoices, the plaintiff is free to agitate these matters by way of defence. However, they do not give rise to any claim for damages on behalf of the plaintiff.
Disposition
The statement of claim is defective on its face, and should be struck out. However, there is a more fundamental problem with the plaintiff’s claims in this proceeding in that the matters complained of by the plaintiff do not give rise to any cause of action known to the law. The plaintiff’s attacks on the validity of the legislative scheme in Part 4 of the Act are misconceived and, as such, there is no factual or legal foundation for any cause of action in tort. The plaintiff’s other complaints do not go to the validity of the legislation, but rather concern matters which might be raised by him as a defence to any civil claim or infringement proceeding. They do not give rise to any action for damages.
My conclusions with respect to the viability of the plaintiff’s claims in this proceeding do not preclude the plaintiff from relying upon the matters raised by him in his submissions by way of defence to any civil or criminal proceeding which might be brought by Linkt or Victoria Police as a consequence of the unpaid invoices. I make no comment on the merits of any of those possible defences. They also do not preclude the plaintiff from making any complaints or taking any other action he considers appropriate with respect to what he considers to be inappropriate or unfair debt collection practices, such as under the Privacy Act 1988 (Cth) or any other relevant consumer protection legislation. However, this proceeding is not a legitimate vehicle to pursue those grievances.
Accordingly, I will make orders removing the first defendant as a defendant to the proceeding, dismissing the plaintiff’s application, and dismissing the proceeding. I shall hear further from the parties on the question of costs.
SCHEDULE OF PARTIES
| S ECI 2024 02633 | |
| BETWEEN: | |
| JAMES FITZPATRICK | Plaintiff |
| - v - | |
| MICHELLE JABLKO | First Defendant |
| CITYLINK MELBOURNE LIMITED | Second Defendant |
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