Fyffe v State of Victoria

[2000] VSC 228

SUPREME COURT OF VICTORIA
PRACTICE COURT	Not Restricted

No. 4472 of 1997

BRIAN CHARLES FYFFE	Plaintiff
v.
STATE OF VICTORIA	Defendant

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JUDGE:	BEACH, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 MAY 2000
DATE OF JUDGMENT:	30 MAY 2000
CASE MAY BE CITED AS:	FYFFE v. STATE OF VICTORIA
MEDIUM NEUTRAL CITATION:	[2000] VSC 228

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	K. Hoban (Solicitor)	Keith Hoban
For the Defendant	Ms S. McDougall	Victoria Government Solicitor

HIS HONOUR:

1. This is an application brought by the defendant and three other members of his family to stay the execution of a warrant of possession which issued out of this court on 3 March 2000.  The history of the proceeding and the application may be summarized as follows.

1. By its writ, the State of Victoria claimed possession of land owned by it, being Crown Allotment 49B in the Parish of Carrajung and which was occupied by the defendant Brian Charles Fyffe and a number of members of his family.

1. The case for the plaintiff is that the defendant was in occupation of the land pursuant to an oral lease between him and the State of Victoria granted in about June or July 1989.  The rental to be paid pursuant to the lease was $40 per week.  Since October 1992, the defendant has failed to pay rent.

1. In February 1996, the State served a Notice to Quit on the defendant.  The defendant failed to vacate the land and on 21 February 1997 the State of Victoria filed its writ in the court whereby it sought judgment for possession.  The defendant did not enter an appearance to the writ and on 3 July 1997 a default judgment for possession was entered in the proceeding in favour of the plaintiff.  On 15 July of that same year a warrant for possession was issued out of the court.  However, on 27 October 1997 an application was made on behalf of the defendant to set the default judgment aside and that application was successful.

1. On 8 May 1998, the plaintiff sought summary judgment for possession against the defendant.  The matter was dealt with by Master Evans on that day and the Master made an order for possession of the property in favour of the plaintiff.  The defendant appealed from that order to a judge of the court.  His appeal came before Mandie, J. on 15 June 1998 and was dismissed.

1. The defendant then appealed from His Honour's decision to the Court of Appeal.  That appeal came before the Court of Appeal on 18 November 1999 and the appeal was dismissed.  On 7 March of this year a fresh warrant of possession was issued out of the court.

1. On 14 April the defendant applied to the Court of Appeal for a stay of Master Evans's order of 8 May 1998.  That application was dismissed.  At some point thereafter I assume, the defendant lodged an application seeking special leave to appeal from the decision of the Court of Appeal to the High Court.  At all events, on 16 May last the defendant applied to the High Court for a stay of Master Evans's order of 8 May 1998 and that application was refused.  So far as the application for leave to appeal to the High Court is concerned, it is my understanding that that application is still pending.

1. On 25 May, the defendant and three members of his family filed a further application in this court returnable before a single judge whereby they seek a stay of Master Evans's order.  The grounds relied upon by them are three in number:  

"1.The judiciary and courts uphold the legal rights of the applicant's pursuant to the Commonwealth of Australia Constitution 1901, as instructed so to do by Clause 5 of the preamble to the said Constitution.

2.That the judiciary and the Attorney-General decisions comply with Section 75(v) of the Commonwealth of Australia Constitution 1901, which are binding on all pursuant to Clause 5 of the said Commonwealth of Australia Constitution 1901. 

3.That the judiciary and the Courts and the Attorney-General comply with the Orders contained in the Supreme Court's rules and regulations, denial of which has cheated the applicants of justice, by perverting the course of justice (pursuant to Section 342 and 318 of the Crimes Act 1900) with regard to Rules 53.03; 53.06; 53.07 of Victorian Supreme Court Procedure.  The absence of compliance with these rules have resulted in perversion of the course of justice for the applicants."

1. In my opinion the application was totally without merit and indeed is vexatious.  Both the Court of Appeal and the High Court have refused to stay the order of the Master which, on its face, is a perfectly valid order.  Indeed, it has already been found to be so by first the Court of Appeal of this court and then the High Court of Australia.

1. The application lodged by the defendant and the three other members of his family is dismissed.  I order that the defendant pay the plaintiff's costs of the application on an indemnity basis.

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