Horvath v Director of Public Prosecutions

[2005] VSC 312

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

No. 7832 of 2000

GABOR HORVATH (SENIOR)	Proposed Plaintiff
V
DIRECTOR OF PUBLIC PROSECUTIONS	Proposed Defendant

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 July 2005
DATE OF JUDGMENT:	26 July 2005
CASE MAY BE CITED AS:	Horvath v Director of Public Prosecutions
MEDIUM NEUTRAL CITATION:	[2005] VSC 312

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Practice and Procedure – refusal by prothonotary to accept proposed plaintiff’s originating motion – where proposed plaintiff is declared vexatious litigant – whether proposed proceeding is an abuse of process.

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APPEARANCES: Counsel Solicitors

NO APPEARANCES

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HIS HONOUR:

1. There remains to be dealt with the matter of Mr Gabor Horvath senior and the proposed proceeding by him against the Commonwealth Director of Public Prosecutions.

1. Yesterday Mr Gabor Horvath senior attended at the registry and attempted to file initiating process in the form of an originating motion and an accompanying affidavit.  The prothonotary of the court perused the documents and refused to accept them for filing.  He did so on the basis that Mr Horvath was a person who has previously been declared by the court to be a vexatious litigant in respect of other defendants, and on the basis that it appeared to him that the initiating process, if issued, would constitute an abuse of process.

1. The matter was referred to me by the prothonotary under the provisions of rule 27.06(1), which provides: 

"The prothonotary may refuse to seal an originating process without the direction of the court where the prothonotary considers that the form or contents of the document show that were the document to be sealed the proceedings so commenced would be irregular or an abuse of the process of the court."

1. Mr Horvath is well aware that the prothonotary has referred the matter to me under the provisions of that rule.  Mr Horvath himself prepared, in his own handwriting, a notice to produce all documents in his proposed proceeding before the judge sitting in this court, that is the Practice Court, today.  Mr Horvath signed that notice to produce.  Further, registry staff have informed one of my Associates that Mr Horvath has attended again at the registry of the court today and stated that he does not intend to appear in respect of the reference of this matter to me. 

1. In his proposed originating motion Mr Horvath seeks mandamus to compel the proposed defendant, the Commonwealth Director of Public Prosecutions, to prosecute Mr Cullen Ross Thompson and Mr Evan Evagorou by trial on indictment in the Supreme Court of Victoria for breach of s. 24AA(1)(a)(i) of the Crimes Act 1914 (Cth) or to show cause why this has not been done.

1. Section 24AA(1)(a)(i) of the Crimes Act 1914 (Cth) provides that:

"A person shall not do any act or thing with intent to overthrow the constitution of the Commonwealth by revolution or sabotage."

1. In his proposed originating motion Mr Horvath has set out many grounds in support of the relief which he claims.  For the purposes of a reference of the kind under consideration I am required to accept that each of the facts alleged by Mr Horvath in his grounds of complaint, and also in the affidavit accompanying the proposed originating motion, are correct.  Even on that basis, having considered the proposed grounds insofar as they are capable of being understood, I am of the very firm view that the proposed proceeding is one which has no possibility of success even if every fact alleged by Mr Horvath is established by evidence.

1. I note that many of the matters alleged are unintelligible.  In my view the prothonotary was fully justified in refusing to seal the proposed originating motion of Mr Horvath against the Commonwealth Director of Public Prosecutions.  Clearly, if issued, such proceeding would constitute an abuse of process.  Even if all of the facts alleged are proved there is no possibility that the case alleged could succeed.

1. Further, the prothonotary has directed me to the fact that Mr Horvath has been declared, by order of Justice Ashley, in proceeding number 7832 of 2000, a vexatious litigant in respect of a number of parties.  Those parties include Mr Thompson and the Commonwealth Bank of Australia.  Mr Thompson, who is an employee of the Commonwealth Bank, is one of the persons against whom Mr Horvath seeks an order in the nature of mandamus to compel the proposed defendant to prosecute.  I infer that this proceeding is also an abuse of process on the ground that it has been sought to be commenced in order to vex and harass Mr Thompson and the Commonwealth Bank of Australia.

1. Accordingly I uphold the decision of the prothonotary to refuse to accept the proposed originating motion for sealing and filing in the court on the grounds that the proposed proceeding would, if commenced, constitute an abuse of process.  To the extent necessary I direct that the prothonotary not accept the proposed originating motion of Mr Horvath versus the Commonwealth Director of Public Prosecutions or any other documents in          that regard for sealing or filing.

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