Kotzmann v McCully

[2002] VSC 558

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 7568 of 2002

THOMAS SAMUEL KOTZMANN	Plaintiff
v
DALE McCULLY AND OTHERS	Defendants

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JUDGE:	BEACH J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 NOVEMBER 2002
DATE OF JUDGMENT:	16 DECEMBER 2002
CASE MAY BE CITED AS:	KOTZMANN v McCULLY & ORS
MEDIUM NEUTRAL CITATION:	[2002] VSC 558

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ORIGINATING MOTION – Abuse of process – Dismissal of proceeding.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In Person
For the 1st, 2nd, 3rd and 4th Defendants	Mr R.D. Shepherd	Christopher Devlin (Legal Officer, Public Correctional Enterprise)
For the 5th Defendant	Mr R.D. Shepherd	Nafoika Saainidis (Legal Officer, Correctional Services Commissioner)

HIS HONOUR:

1. The plaintiff is presently a prisoner of H.M. Prison Dhurringile.

1. Dale McCully and Ken Seymour are disciplinary officers at the prison.  On 5 August 2002 and 26 August 2002 they charged the plaintiff with certain disciplinary offences.  On 14 August 2002 prison governor Tony Jenkins heard the 5 August charges.  On 3 September 2002 prison governor Jeff Thomas heard the 26 August charges.

1. It would appear that the plaintiff was convicted of the various charges and that penalties were imposed on him.

1. On 2 October 2002 the plaintiff filed an originating motion and summons in the Court naming the four prison officers as defendants.  He also named the Correctional Services Commissioner as a fifth defendant.

1. By his originating motion the plaintiff seeks various declarations including declarations that the decisions to charge the plaintiff are ultra vires, and void ab initio, and orders in the nature of certiorari to have the decisions to convict removed into this Court and quashed.

1. The plaintiff also seeks by his originating motion damages in the sum of $1,501.50 and exemplary damages of $500,000.00.

1. The contents of the originating motion are clearly vexatious and an abuse of process.

1. On 23 October 2002 Balmford J. gave the plaintiff leave to file and serve an amended originating motion by 6 November 2002.  The plaintiff failed to do so.

1. The proceeding next came before Williams J. on 7 November.  That day her Honour ordered that "the plaintiff by 4.00 p.m. on 15 November 2002 file and serve any application to amend his originating motion or any other application as he may be advised".  Once again the plaintiff failed to do so.

1. On 22 November 2002 the defendants filed summonses in the Court seeking judgment pursuant to the provisions of Rule 23.01 of the Rules of the Court on the ground that the proceeding does not disclose a cause of action, alternatively is frivolous or vexatious, alternatively an abuse of the process of the Court.

1. In the alternative to that relief, the defendants seek summary judgment in their favour against the plaintiff pursuant to the provisions of Rule 23.03 on the ground that they have a good defence to the proceeding.

1. On 19 November 2002 the plaintiff attempted to file in the Court a document dated 3 October 2002 entitled "Additional Statement of Claim".  The senior deputy prothonotary refused to accept the document as the order of Williams J. had directed that any application to be made by the plaintiff be filed and served by 4.00 p.m. on 15 November 2002.

1. It is that additional Statement of Claim which is presently before me.  What the document purports to do is to add a number of further sub-paragraphs to the existing paragraphs in the originating motion.  It also seeks to add a sixth defendant named Bruce Hunter.  In relation to that prospective defendant the additional statement of claim reads:

"2.6     Sixth Defendant

(a)An order in the nature of Prohibition preventing the sixth defendant from acting in excess of jurisdiction to make the decision to charge the plaintiff with a prison offence without first complying with s.50(5) of the Corrections Act 1986 (hereinafter referred to as "the Act").

(b)A declaration that the sixth defendant's actions were an abuse of power."

1. The document maintains the plaintiff's claim for damages of $1,501.50 and exemplary damages of $500,000.00.

1. In my opinion the originating motion and/or additional Statement of Claim are both frivolous and vexatious.  In no sense could they be said to properly identify legitimate claims the plaintiff may have against any of the defendants and in my opinion they are an abuse of the process of the Court.

1. Further to combine a proceeding seeking prohibition and certiorari with a proceeding claiming damages and exemplary damages is also vexatious and again an abuse of the process of the Court.

1. The documents in question are a jumble of allegations and do not adequately identify what it is alleged each defendant did or failed to do justifying the plaintiff instituting the proceeding.

1. In my opinion on that basis only the proceeding as such should be dismissed.

1. However, in my opinion there is another basis upon which the claim against the fifth defendant should be dismissed, namely that the fifth defendant has a good defence to any claim against him on the merits.

1. In an affidavit sworn by the Commissioner on 21 November 2002 and filed in the proceeding the Commissioner has deposed to the fact that his responsibility as Commissioner is for the placement of prisoners in the various State owned and privately managed prisons and of the monitoring of all prisons, community correction services, transport and court security services, to ensure the safe custody and welfare of prisoners and the proper supervision of offenders and parolees.  He does not employ any of the named defendants nor the proposed defendant Hunter.  Those persons are employed by the State of Victoria.

1. In that situation I consider that the plaintiff simply has no case against the fifth defendant and on that basis also the claim against him should be dismissed.

1. The order of the Court therefore is that the proceeding be dismissed.

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