Fox v Armytage
[2004] VSC 192
•17 May 2004
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 4237 of 2004
| JEFFREY FOX | Plaintiff |
| v | |
| PENNY ARMYTAGE | Defendant |
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JUDGE: | Williams J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 May 2004 | |
DATE OF JUDGMENT: | 17 May 2004 | |
CASE MAY BE CITED AS: | Fox v Armytage | |
MEDIUM NEUTRAL CITATION: | [2004] VSC 192 | |
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APPEARANCES: | Counsel | Solicitors |
| Plaintiff in person | Mr J Fox | |
| For the Defendant | Ms M Lodge | Victorian Government Solicitor |
HER HONOUR:
On 17 May 2004 the Court dismissed the plaintiff applicant’s application made in the Practice Court and awarded costs against him. The applicant has sought written reasons for the orders made.
Because of the difficulties involved in understanding the material filed on behalf of the applicant, the nature of his application was not entirely clear and I will provide a short summary of the proceeding.
The applicant commenced a proceeding against the respondent Secretary of the Department of Justice (“the Secretary”) by an originating motion filed on 23 January 2004.
The originating motion set out the allegations and claims made in the proceeding under a number of headings, referring to the Secretary’s response to a separate document entitled: “Notice of Demand”. The originating motion sought relief in terms that were somewhat unintelligible and did not disclose discernible causes of action against the Secretary.
The Notice of Demand is also present on the Court file. It sets out a list of 76 enumerated “Facts” relating to the tapes of a proceeding in the Magistrates’ Court at Kyneton on 14, 15 and 17 May 2002. As far as I could follow the submissions of the applicant who appeared in person before me, the proceeding related to a boundary dispute with which he was involved with Mr Sam Peys and Ms Christina Edge.
The Notice of Demand contains allegations that the tapes of the proceeding were corrupted and refers to the applicant’s dealings with Mr Francis, the Chief Executive Officer of the Magistrates’ Court at Melbourne, as well as to Mr Francis’s investigation of his complaint about the tapes and conclusion that the tapes had not been corrupted. The applicant made a number of “Claims” setting out his alleged rights to dispute Mr Francis’s decision and the alleged “duty of care obligation” owed to him by the Department of Justice to further investigate the matter and to provide him with original court tapes. He claimed that the Department had deliberately denied him his rights and natural justice. “Demands” against the Secretary were set out in a separate section of the Notice of Demand.
By a document entitled “summons” and apparently purporting to be a summons on originating motion in accordance with Form 45A issued on 23 January 2004, the applicant sought relief in the form of admissions, the supply of tapes of the Magistrates’ Court proceeding, transcription of the tapes and assorted other matters, including the names of those involved in the handling of the allegedly corrupted tapes.
The application was dismissed on 13 February 2004, its first return date before the Master, when neither party appeared.
The application was reinstated by the Master on 25 February 2004 and directions were given for the filing of affidavits.
The applicant filed a document entitled “Affidavit in Support”, affirmed on 9 March 2004. The affidavit sets out his allegations relating to the tapes and his dealings with court officials and refers to his correspondence with the Secretary including her written advice that it did not appear that the tapes had been corrupted in any way. On 26 March he filed a further affidavit in support of his application repeating many of his allegations.
On 29 March 2004 the Secretary was represented and the applicant appeared in person before the Master. The Master dismissed the application stating in “Other Matters” that he did not see that the Court had jurisdiction to force the Secretary to investigate the allegations. He added that the investigation would breach the “separation of powers convention”.
The applicant lodged an appeal against the Master’s decision. He filed an affidavit in support of the appeal affirmed on 3 May 2004 seeking the reinstatement of the proceeding and asserting that his “Primary Rights” and natural justice had been denied. Amongst other matters addressed in the affidavit he made arguments based on the Constitution of the United States. He referred to the exhaustion of all avenues available to him for redress from the ombudsman and the police as well as the courts. He claimed to have been the victim of a criminal act and sought relief from orders made against him. He included the following reason for bringing the application: “so that my family may lift our sub standard style living”. He also referred to the problems created by deep holes along the boundary of his property.
The applicant filed a further affidavit in support of the appeal on 3 May 2004. It contained repeated allegations relating to the alleged corruption of the Magistrates’ Court tapes.
On 3 May 2004 the applicant failed to appear at the hearing of his appeal in the Practice Court. The Secretary was again represented and the appeal was struck out by the Chief Justice and the applicant ordered to pay costs.
On 4 May 2004 the applicant affirmed an affidavit setting out the reasons for his failure to appear. He recorded his sudden development of a coughing fit on the way to Court and his attendance at the Royal Children’s Hospital which had prevented him from attending Court.
On 7 May 2004 the applicant issued a further document entitled “Summons on Originating Motion” in apparently identical terms to that issued on 23 January 2004. This time the summons was returnable before the Judge in the Practice Court and came on for hearing before me on 17 May 2004.
The applicant had affirmed an affidavit entitled “Affidavit in Support of Originating Motion Between Parties” and set out submissions as to the grounds for the reinstatement of the application.
In my view, the arguments did not disclose any recognisable cause of action against the Secretary.
Counsel for the Secretary submitted that, even if the application could properly be viewed as one to set aside a judgment at trial under Order 49.02 of the Rules, the applicant should fail to persuade the Court to exercise its discretion in his favour because the application was misconceived. She submitted that the relevant parties had investigated the applicant’s allegations about the corruption of tapes and that there was nothing to review.
It did appear that the applicant sought to re-agitate his application for final relief under Order 45.04. Such an application should be brought before a Master. Counsel for the Secretary submitted that the Court should not refer the application back to the Master because it was misconceived and there would be no utility in the exercise. She argued that the application should be dismissed.
I was persuaded by the arguments made on behalf of the Secretary. Even if Order 49.02 were applicable, there would be no utility in reinstating the appeal because no cause of action is disclosed by the documents filed by the applicant. Similarly, it would be futile to refer the application by the summons on originating motion back to the Master.
Accordingly, the application was dismissed.
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