Le Tuan Pham v Ex Parte

[2013] VSCA 43

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0211
S APCI 2012 0212

LE TUAN PHAM	Applicant
	v
EX PARTE

S APCI 2012 0213

LE TUAN PHAM	Applicant
	v
GEORGE DRAKOPOULOS, PETER TRUONG, JIM HANSEN AND CITY OF GREATER DANDENONG	Respondents

S APCI 2012 0214

LE TUAN PHAM	Applicant
	v
DIMITY JONES AND TONY RACHELE	Respondents

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JUDGE:	WHELAN JA and VICKERY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 March 2013
DATE OF JUDGMENT:	1 March 2013
MEDIUM NEUTRAL CITATION:	[2013] VSCA 43
JUDGMENT APPEALED FROM:	Orders of Pagone J made 4 October 2012;  Orders of Garde J made 22 October 2012

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PRACTICE AND PROCEDURE – Application by self-represented litigant for leave to appeal four separate decisions – Inherent jurisdiction of Court of Appeal to dismiss appeals for want of prosecution – Jurisdiction of Court of Appeal to dismiss appeals pursuant to s 29 Civil Procedure Act 2010 – Right to fair trial governed by procedural law – Whether reasons necessary under r 27.06 Supreme Court (General Civil Procedure) Rules 2005 for refusal to seal an originating process – Applications dismissed.

HUMAN RIGHTS – Equality before the law recognised in s 8 of the Charter of Human Rights and Responsibilities Act 2006 – Right to a fair hearing recognised in s 24 of the Charter – Right equality before the law and to a fair trial governed by procedural law which safeguards the rights and enables legal processes to work.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in Person
For the Respondents Drakopoulos, Truong, Hansen and City of Greater Dandenong	Ms E Bennett	Macpherson & Kelley
For the Respondents Jones and Rachele	No appearances

WHELAN JA:

1. I agree with Vickery AJA.

VICKERY AJA:

1. By four separate summonses filed on 5 November 2012, Le Tuan Pham (‘the applicant’) sought leave to appeal against the orders of Pagone J made in proceedings S CI 2012 5761 and S CI 2012 5762 on 4 October 2012;  and the orders of Garde J made in proceedings S CI 2012 05038 and S CI 2012 5043 on 22 October 2012.

1. The applicant is self-represented in these proceedings and in these applications.

Litigation history

1. As was said by Garde J in his reasons for ruling dated 22 October 2012: ‘The present case involved three officers of the City of Dandenong and a notice under the Building Act in relation to a garage which the Council assessed as not being fit for human habitation.’

1. The key events unfolded as follows:

(a)       In April 2011, the applicant rented a garage in Virginia Street, Springvale.  Initially, the applicant dealt with his landlord personally, but in August of that year the landlord appointed McLennan Real Estate Pty Ltd to act on her behalf.  The agent who managed the property was Tony Rachele.

(b)      The applicant was concerned about the state of the communal kitchen, the lack of fire alarms and various ‘sticks and pikes’ which had been left in the garage he was renting.

(c)       The applicant reported an unregistered rooming house to the Council.  A council employee, Mr Drakopoulos, came to inspect the house.  Following the inspection, the applicant received a letter from the City of

Greater Dandenong indicating that the garage had been assessed as not fit for human occupation. The letter advised the applicant that he was in breach of s 40(10) of the Building Act 1993 and asked him to vacate the garage.

(d)      The applicant was evicted in November 2011.

1. The applicant initiated several proceedings in relation to the matter in the Victorian Civil and Administrative Tribunal (‘VCAT’) and the Supreme Court.  These are set out in Pham v Jones.[1]  I adopt the chronology of applications and orders in recorded in that decision:

   [1][2012] VCAT 1161 (3 August 2012).

Proceeding number	Date of application	Nature of claim	Order
R2011/27225	7-Jul-11	Application for a possession order under ss 322(1) and 246 of the Residential Tenancies Act 1997 (‘the RTA’) for non-payment of rent (these sections apply to rented premises not rooming houses).	Dismissed on 19 July 2011 for the reasons given orally at the hearing.
R2011/27556	8-Jul-11	Application for compensation under s 210 of the RTA made by Mr Pham against Ms Nguyen for successive breaches the RTA.	Consent order made 30 August 2011 whereby Ms Nguyen waived her claim for outstanding rent and Mr Pham agreed to vacate the rented room within one month during which time further rent was waived.
SCI 2011 5120	26-Sep-11	Application for leave to appeal VCAT order made 30 August 2011 made by Mr Pham.	Leave to appeal refused by Randall JA on 17 October 2011.
R2011/29545	26-Jul-11	Application for a possession order under ss 323(a), 281 and 280 of the RTA for non payment of rent and disruption of quiet and peaceful enjoyment of other residents and orders under s 452 (general dispute) made by Ms Nguyen against Mr Pham.	Withdrawn by Ms Nguyen on 30 August 2011.
R2011/32741	19-Aug-11	Application for a possession order under ss 323(a) and 281 of the RTA for non payment of rent made by Ms Nguyen against Mr Pham.	Application dismissed on 30 August 2011 because the notice to vacate did not give Mr Pham 14 clear days to vacate the rented room.
R2011/35492	9-Sep-11	Application for a possession order under ss 323(a) and 245 of the RTA because the premises were unfit for human habitation made by Ms Nguyen against Mr Pham.	Possession order made 15 November 2011.
SCI 2011 06465	29-Nov-11	Supreme Court application for leave to appeal VCAT order made 15 November 2011 made by Mr Pham.	Leave to appeal refused by Cavanough J on 29 November 2011.
S APCI 2011 0190	29-Nov-11	Court of Appeal application for leave to appeal orders made by Cavanough J on 29 November 2011 made by Mr Pham.	Leave to appeal refused by Nettle JA and Kyrou AJA on 24 February 2012.
R2011/48502	16-Dec-11	Application for a restraining order in relation to Mr Pham’s attempts to retrieve his belongings from the rented room under ss 452 and 472 of the RTA made by Mr Pham against Ms Nguyen.	Order made on 16 December 2011 requiring Ms Nguyen and her agents to allow Mr Pham to collect his belongings from the rented room. Order made 4 January 2012 requiring Mr Pham to collecting his belongings from the rented room by 13 January 2012. Application dismissed on 18 January 2012 for non appearance of Mr Pham.
R2012/4144	27-Jan-12	Application for bond under ss 417, 418 and 419 of RTA made by Ms Nguyen against Mr Pham	Decision pending.
R2012/9296	1-Mar-12	Application for compensation under s 210 made by Mr Pham against Mr Rachele and application for hearing de novo in relation to R2011/29545 and R2011/35492	Decision pending.
M21/2012	23-Mar-12	High Court application for special leave to appeal the decision of Nettle JA and Kyrou AJA on 24 February 2012 made by Mr Pham	Decision pending

Summary of relevant proceedings

VCAT proceeding against the council employees (VCAT A97/2012)[2]

[2]           Pham v Drakopoulos [2012] VCAT 1198 (10 August 2012).

1. In May 2012, the applicant initiated a proceeding in VCAT claiming that Mr Drakopoulos, Mr Truong and Mr Hansen (‘the Council Employees’) discriminated against him in breach of the Equal Opportunity Act 1995 and the Equal Opportunity Act 2010.  The City of Greater Dandenong (‘the Council’) was added as a respondent in the application.

1. The application in VCAT did not detail the facts or circumstances said to amount to direct or indirect discrimination or racial vilification.  The Council applied for summary dismissal of the application.  Rather than dismiss the application, the Deputy President made orders listing the matter and required the applicant to present at the hearing all the evidence upon which he intended to rely.

1. After a hearing on the merits, all of the claims were dismissed on 10 August 2012.

1. In respect of the claims against each of the Council Employees, Deputy President A Coghlan found that the applicant had advanced no evidence or material in support of his discrimination claims, despite being given every opportunity to do so.  Further, it was determined that the claims could not succeed, as they were misconceived and lacking in substance.[3]

VCAT proceeding against the property managers (VCAT A 41/2012)[4]

[3]Ibid [37]-[42]; [47]-[51]; [54]-[57].

[4]           Pham v Jones [2012] VCAT 1161 (3 August 2012).

1. The applicant also lodged a further claim against Mr Rachele and Ms Jones (‘the Property Managers’) arguing that by engaging in unlawful discrimination, they had breached the Equal Opportunity Act 2010.  The particulars of the applicant’s claim alleged indirect discrimination on the part of the Property Managers.  The application also alleged that the Property Managers had directly discriminated against the applicant, although these claims were not particularised.

1. Member Grainger found that the applicant’s claim that the Property Managers engaged in indirect discrimination was misconceived, as neither of them imposed or proposed to impose a requirement, condition or practice that had, or was likely to have, the effect of disadvantaging him or that was not reasonable, pursuant to s 9 of the Equal Opportunity Act 2010.

1. Member Grainger found that Ms Jones had not directly discriminated against the applicant.  The applicant alleged that Ms Jones had discriminated against him by throwing the VCAT application on the floor, as if to say ‘pick it up nigger’, although no such words were spoken.  Member Grainger accepted Ms Jones’ explanation for how and why the VCAT application fell on the floor as being ‘more probable’ than the applicant’s version of events.[5]  Even if the applicant established his version of events, such evidence would not have established direct discrimination on the part of Ms Jones.

   [5]Ibid [43].

1. The applicant made several allegations in relation to Mr Rachele, including that Mr Rachele discriminated against the applicant in relation to his employment activity; and based on the applicant’s physical appearance and race. The allegations were alleged to arise from the following conduct:

(a)       by failing to undertake certain tasks[6] whilst the tenancy was on foot;

[6]Ibid [52].

(b)      by his conduct in the proceedings in VCAT, the Supreme Court and the Court of Appeal;

(c)       by applying for a possession order;

(d)      by colluding with the Council and Consumer Affairs Victoria;

(e)       by stating that his employees would lie for him;

(f)       by challenging a medical certificate due to the race of the applicant’s doctor;

(g)      by damaging the applicant’s property;  and

(h)      by calling the applicant a ‘gook’.

1. Member Grainger found that none of the applicant’s claims against Mr Rachele were made out.

1. The Tribunal determined that neither of the Property Managers had engaged in unlawful discrimination or vilification, nor authorised or assisted discrimination.  All of the applicant’s claims against the Property Managers were dismissed.

Appeals to the Supreme Court (S CI 2012 5038;  S CI 2012 5043)

1. On 4 September 2012, the applicant filed two originating motions in the Supreme Court appealing against the VCAT determinations. The applications were heard in succession before Mukhtar AsJ.  His Honour refused leave to appeal and dismissed both proceedings and pronounced orders to that effect on 1 October 2012.

1. Section 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 provides in relation to appeals from the Tribunal:

148. Appeals from the Tribunal

(1) A party to a proceeding may appeal, on a question of law, from an order of the Tribunal in the proceeding-

(a) to the Court of Appeal, if the Tribunal was constituted for the  purpose of making the order by the President or a Vice President, whether with or without others; or

(b)to the Trial Division of the Supreme Court in any other case-

if the Court of Appeal or the Trial Division, as the case requires, gives leave to appeal.

1. In short form Reasons for Decision, Mukhtar AsJ emphasised, correctly in my view, that an appeal under s 148 was not a merits review and was confined to questions of law.  His Honour found that the applicant had not exposed a question of law in relation to either Deputy President A Coghlan or Member Grainger’s decisions.

1. In the proceeding brought against the Council Employees, Mukhtar AsJ made the following observations:[7]

… the grounds of attack stated in the originating motion make little sense.  Neither do the grounds stated in the proposed notice of appeal.  In both documents there is just a farrago of legal verbiage and a confused assemblage of conclusions.

[7]See Short Form Reasons of Mukhtar AsJ dated 4 October 2012 in lower court file S CI 2012 5043, [11].

1. Similarly, in the proceeding brought against the Property Managers, it was said that:[8]

… the originating motion and the proposed Notice of Appeal are not intelligible … I am afraid to say nothing meaningful was put forward, except a most unpleasant and disrespectful attack on this Court.

[8]See Short Form Reasons of Mukhtar AsJ dated 4 October 2012 in lower court file S CI 2012 5038, [3].

1. The applicant appealed against the Associate Judge’s orders and sought leave pursuant to s 33 of the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) to have various questions heard in the Court of Appeal.

1. Sections 33(1) and (3) of the Charter provides:

33.      Referral to Supreme Court

(1) If, in a proceeding before a court or tribunal, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter, that question may be referred to the Supreme Court if-

(a)a party has made an application for referral; and

(b)the court or tribunal considers that the question is appropriate for determination by the Supreme Court.

…

(3) If a question is referred under subsection (1) by the Trial Division of the Supreme Court or by the County Court, the referral is to be made to the Court of Appeal.

Orders of Garde J – Dismissing the appeals against Orders of Mukhtar AsJ

1. On 22 October 2012, Garde J dismissed the appeals.  In the proceeding against the Council Employees, Garde J stated that there was ‘no arguable basis for any of the contentions and arguments advanced by the plaintiff’.[9]  In the proceeding against the Property Managers, Garde J found that there was ‘no substance in any of the grounds which are set out in the notice of appeal’.[10]

   [9]Ruling of Garde J dated 22 October 2012 in lower court file S CI 2012 5043, [10].

   [10]Ruling of Garde J dated 22 October 2012 in lower court file S CI 2012 5038, [4].

1. It followed from these findings that the Court constituted by Garde J did not consider there to be any question appropriate for determination by the Supreme Court pursuant to s 33(1)(b).

1. I am not satisfied that any error has been demonstrated in the decision of Garde J or any which is properly arguable. Accordingly,  I am not satisfied that there is any proper basis for the proposed appeal. 

Orders of Pagone J - Applications to Add Further Respondents

1. The applicant also sought to file two originating motions naming:

(a)       the Victoria Police, the Police Minister of Victoria and others as respondents in the proceeding (S CI 2012 5761);  and

(b)      Robert Schade, who is Deputy Prothonotary-Court of Appeal-Civil Registry, as respondent in the proceeding (S CI 2012 5762).

1. The Prothonotary exercised his discretion to refuse to seal or accept the two originating motions pursuant to r 27.06(1) of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’), which provides:

27.06. Prothonotary refusing to seal or accept document

(1) 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 proceeding so commenced would be irregular or an abuse of the process of the Court.

1. The matter was referred by the Prothontary to the Practice Court pursuant to r 27.06(3) of the Rules, which provides:

(3) The Court may direct the Prothonotary to seal an originating process or accept a document for filing.

1. Pagone J refused to seal the two originating motions by orders dated 4 October 2012.

The Present Applications

Filing of Applications

1. The applicant filed four summonses which are the subject of the present applications on 5 November 2011.  The applicant seeks to appeal the orders of Pagone J dated 4 October 2012 refusing to seal the originating motions and the orders of Garde J dated 22 October 2012 dismissing the applicant’s appeals from the orders of Mukhtar AsJ dated 1 October 2012. 

1. As conceded by the applicant during oral submissions this morning, on 20 November 2012 the Registry wrote to the applicant seeking urgent filing of his affidavit and submissions, which were due for filing on 15 November 2012. 

The Four Applications

1. The Registry has listed the four proceedings to provide an opportunity for the Court of Appeal to consider dismissal of the four applications on its own motion. The Court may take action in this way either in the exercise of its inherent jurisdiction or pursuant to s 29(2)(b) of the Civil Procedure Act 2010 (‘the Act’) which provides for the making of an enforcement order in respect of contravention of the Act on the Court’s own motion.

1. Further, in relation to the summons dated 5 November 2012 filed by the applicant against the orders of Garde J made 22 October 2012, the respondents in that matter applied for and urged upon the Court that dismissal was the appropriate course.

1. In these applications, the applicant has on 27 February 2013 filed an affidavit, which, on a fair reading, is confined to the applications relating to the orders of Pagone J of 4 October 2012.  The applicant has also filed written submissions dated 27 February 2013 referable to all applications.  These will be referred to shortly.

1. However, two of the four applications seeking leave to appeal are out of time,[11] namely the summonses filed in relation to Pagone J’s orders of 4 October 2012. Further, none of the applications were accompanied by a draft notice of appeal. As at the time of the hearing, no draft notices of appeal in any of the applications have been filed or served.

   [11]Contrary to r 64.03 of the Rules.

1. Rule 65.07 is mandatory in its terms and provides:

65.07. Documents for inclusion

On any application relating to an appeal or a proposed appeal, the applicant shall include as exhibits to an affidavit-

(a) a copy of the judgment or order from which the appeal is or is proposed to be brought;

(b)      a copy of any reasons given for that judgment or order;  and

(c)      a copy of the notice of appeal or proposed notice of appeal -

or shall account in an affidavit for their absence as exhibits.

1. A direction was made by Judicial Registrar Pedley to provide an affidavit in support in accordance with r 65.07 with a compliance date specified as 15 November 2012.  In the same order, a direction was given to file and serve outline submissions by 15 November 2012.

1. No explanation or account has been given for the failure to provide any proposed notice of appeal in any of the four applications which were required to be exhibited to an affidavit sworn by or on behalf of the applicant as required by r 65.07 or otherwise.  No satisfactory explanation is offered in support of the necessary application for leave to appeal the orders of Pagone J out of time. 

1. The Rules provide for no express power to dismiss an appeal for failure to include the documents relating to a proposed appeal or failure to comply with time limits.[12]

   [12]Cf. The Rules, r 24.01 which provides power to dismiss a proceeding in the trial division for want of prosecution; Supreme Court Rules 2008 (NT), r 84.13 which provides power to dismiss an appeal for want of prosecution.

1. However, in Muto v Faul,[13] the Full Court of the Supreme Court of Victoria held that the inherent jurisdiction of the Court allowed it to dismiss an appeal for want of prosecution.  Mere failure to comply with the rules was not considered sufficient to strike out or dismiss an appeal.  Young CJ, Lush and Beach JJ stated:

It is well established that any court possesses an inherent jurisdiction to stay or dismiss cases brought before it which are frivolous or vexatious or an abuse of the process of the Court. This inherent power must extend, as this Court said in Duncan v Lowenthal, [1969] VR 180 at p. 182, to purging the Court list of cases which have not been reasonably prosecuted. This inherent power is of course very sparingly exercised but it is an essential power in the administration of justice.

[13][1980] VR 26 (Young CJ, Lush and Beach JJ).

1. The Court of Appeal’s power to dismiss an appeal for want of prosecution pursuant to its inherent power to regulate its own procedure was reaffirmed in Farnell v Penhalluriack,[14] where a party failed to comply with a security for costs order.

   [14](2010) 29 VR 727.

1. In spite of there being no authority directly on point, in my view, this Court may, in the exercise of its inherent power to control its own process, dismiss the applications in the interests of the administration of justice, on the ground that they have not been reasonably prosecuted, which includes a failure to provide documents and a failure to comply with the time limits requires by the Rules. On the same basis, the Court may dismiss applications which are made in aid of advancing an appeal which has no proper basis.

1. The provisions of the Act reinforce the inherent power of the Court in this respect. Sections 7 (Overarching purpose), 8 (Court to give effect to overarching purpose), 9 (Court’s powers to further overarching purpose), 10 (Application of overarching obligations – participants), 11 (Application of overarching obligations – civil proceedings, including an appeal in a civil proceeding), 12 (Overarching obligations prevail over certain other obligations and duties), 16 (Paramount duty of participants to further the administration of justice), 18 (Overarching obligation – requirement of proper basis), 20 (Overarching obligation – requirement to cooperate in the conduct of a civil proceeding), 25 (Overarching obligation to minimise delay), 28 (Court may take contravention of overarching obligations into account), and 29 (Court may make orders in relation to contravention of any overarching obligation) are referred to. As earlier observed, it is to be noted that, pursuant to s 29(2)(b) of the Act, an enforcement order may be made in respect of contravention of the Act on the Court’s own motion.

1. It should be noted that dismissal of a proceeding for want of prosecution at the trial stage does not preclude an applicant from lodging a fresh proceeding; the fresh proceeding will not be res judicata.[15]  Although that proposition applies in the context of a proceeding at trial, in my opinion by analogy, the applicant would not be precluded from filing fresh applications for leave to appeal, but in so doing, would assume the risk that any such application, even if made in proper form, may not be permitted if they are out of time by reference to any applicable time limit and if they lack any proper basis for an appeal.

The Charter and Notice of a Constitutional Matter

[15]Williams’ Civil Procedure, [I 23.01.135].

1. It is to be noted that, by a document dated 26 February 2013, the applicant seeks to give notice to the Attorney-General and the Victorian Equal Opportunity and Human Rights Commission, purportedly under s 35 of the Charter.

1. Section 35 of the Charter provides:

35. Notice to Attorney-General and Commission

(1) A party to a proceeding must give notice in the prescribed form to the Attorney-General and the Commission if-

(a)in the case of a Supreme Court or County Court proceeding, a question of law arises that relates to the application of this Charter or a question arises with respect to the interpretation of a statutory provision in accordance with this Charter; or

(b)in any case, a question is referred to the Supreme Court under section 33.

1. Equality before the law is recognised in s 8 of the Charter, which provides:

8. Recognition and equality before the law

(1)      Every person has the right to recognition as a person before the law.

(2) Every person has the right to enjoy his or her human rights without discrimination.

(3) Every person is equal before the law and is entitled to the equal protection of the law without discrimination and has the right to equal and effective protection against discrimination.

(4) Measures taken for the purpose of assisting or advancing persons or groups of persons disadvantaged because of discrimination do not constitute discrimination.

1. The right to a fair trial is provided in s 24(1) of the Charter in the following terms:

24. Fair hearing

(1) A person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

Applicant’s Affidavit dated 27 February 2013 in Relation to Orders of Pagone J

1. The applicant has filed an affidavit dated 27 February 2013.

1. In this affidavit the applicant says, omitting formal parts:

2.On the 30th of November 2012, the Applicant attempted to file his two appeal(s) in the Supreme Court of Victoria, on appeal from VCAT.

3.The Deputy Prothonotary Aurora Clark, refused to file the Originating Motions; and sought advice from the Prothonotary, citing SUPREME COURT RULES – REG 27.06 Proper officer refusing to seal or accept document.

4.Supreme Court (Miscellaneous Civil Proceedings) Rules 2008, indicates that the Applicant has 7 days to file the following,

a. 4.07 Affidavit in support

b. 4.08 Summons before Associate Judge

5.When the Applicant asked her for her reasons why the Applicant was denied the usual process, the Deputy Prothonotary refused to answer.

6.The Deputy Prothonotary told the Applicant that she was seeking an order from the single Judge, and on the same day, an Unknown Judge make order to decline the filing of the documents.

7.An Order from the Judge Pagone, dated 4th November 2012, was delivered some 2 weeks later.

8.      NO reason was given for the Order of Pagone J.

9.The Applicant feels offended and vilified that the same procedure on Appeal from an Order of VCAT was denied him, without proper reasons.

10.On the 5th November 2012, the Applicant was forced under duress to change the named Respondents in his Summons without his consent by Mr Konstantin Rotarou, Registry Officer, Court of Appeal.

11.     and thereby prejudicing the timing and running of his case.

12.     Applicant seeks removal of cause into the High Court of Australia.

13.Applicant seeks to have Leave application adjourned to be hearing at time of the hearing of the appeal, as per Registry Instructions.

14.     Exhibit 1;  Order and or Reasons from which Appealed. 

Applicant’s Written Submission dated 27 February 2013

1. In each of the four applications, the applicant has filed written submissions in common form dated 27 February 2013.

1. The applicant’s submissions commenced with the following:

Whereas Bell J reasoned, the Supreme Court of Victoria has considered the relevance and application of the human rights to equality before the law, access to justice and the right to a fair hearing under the ICCPR to the right to a fair trial under Victorian law and the obligations of the court to self represented litigants,

The Appellant feels offended and vilified as a Refugee with bad Engrish (sic) who made every attempt to comply with the laws and rules of the Court to be treated less than the Upresented (sic) litigant in front of Bell J;  Tomasevic v Travaglini & Anor [2007] VSC 337 (13 September 2007);

Whereas the Appellant made his facts and material evidence, they were ignored by the Judges;

Whereas the Appellant seek an interpretation of the laws and legal precedence, or questions of law, it was refused;

Where or not Bell J is the same as the one presiding on the High Court Australia, the Appellant seek to remove this cause into the High Court for an interpretation of the Charter relating to Equality before the Law of Immigrants and Refugees, inter alia.

1. The applicant then again referred to and analysed the decision of Bell J in Tomasevic v Travaglini & Anor[16] (‘Tomasevic’).

   [16] [2007] VSC 337.

1. The central proposition advanced by the applicant is that: ‘… the right to a fair trial is important for promoting and respecting equality before the law and access to justice.’ This statement of broad principal is unexceptional. It is reinforced in s 24(1) of the Charter. It was stated by Bell J in Tomasevic in the following terms: [17]

The right of every person to a fair criminal or civil trial, and the duty of every judge to ensure it, is deeply ingrained in the law. Expressed in traditional terms, the right is inherent in the rule of law – indeed, ‘in every system of law that makes any pretension to civilisation’ – and in the judicial process. Expressed in modern human rights terms, the right to a fair trial is important for promoting and respecting equality before the law and access to justice.

[Citations omitted]

[17] Ibid [68]

1. The applicant also emphasised the right to a fair trial as sourced from the International Covenant of Civil and Political Rights 1966 (the ‘ICCPR’).

1. He quoted extensively from the judgment of Bell J in Tomasevic, (relying upon paragraphs [71]-[76] of his Honour’s reasons).

1. The applicant concluded his submissions with the following:

Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair.  A fair trial is the only trial a judge can judicially conduct.  The duty is inherently in the rule of law and the judicial process.  Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR.  The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

Most self-represented persons lack two qualities that competent lawyers possess – legal skill and ability, and objectivity.  Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds.  Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance.  Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial.  The proper scope of the assistance depends on the particular litigant and the nature of the case.  The touchstones are fairness and balance.  The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.

Justice Bell concluded that, by reference to these principles, the County Court had failed to accord Mr Tomasevic a fair trial such as to constitute a breach of natural justice and failure to properly exercise jurisdiction.  His Honour ordered that Mr Tomasevic’s application for leave to appeal be remitted to the County Court for reconsideration according to law. 

The Appellant feels offended and vilified as a Refugee with bad Engrish (sic) who made every attempt to comply with the laws and rules of the Court to be treated less than the Upresented (sic) litigant in front of Bell J;  Tomasevic v Travaglini & Anor [2007] VSC 337 (13 September 2007)

Whereas the Appellant made his facts and material evidence, they were ignored by the Judges;

Whereas the Appellant seek an interpretation of the laws and legal precedence, or questions of law, it was refused;

Where or not Bell J is the same as the one presiding on the High Court Australia, the Appellant seek to remove this cause into the High Court for an interpretation of the Charter relating to Equality before the Law of Immigrants and Refugees, inter alia.

Consideration of the Applications Relating to the Orders of Pagone J

1. The power of the Prothonotary under r 27.06(1) to refuse to seal an originating process where he considers that the form and contents of the document show that, were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court, is not one to arbitrarily refuse to seal the document. Rather it is a power to refuse to seal the document without the direction of the Court.

1. In this case, the direction of the Court was sought without delay.  The direction was not forthcoming from Pagone J.

1. The ground for the Prothonotary acting under r 27.06(1) to refuse to seal a document without the direction of the Court, is that the form and contents of the document, if sealed, would give rise to a proceeding that would be irregular or an abuse of the process of the Court.

1. The exercise of the power by the Prothonotary under r 27.06(1) is administrative in character. In the usual case he is not required to give reasons for his refusal where he considers that the rule operates. Indeed it is difficult to conceive of a case which called for reasons to be given by the Prothonotary because exercise of the power does not result in a final determination of the issue. It merely results in a reference of the matter to the Court for a direction.

1. In this case, the refusal on the part of Pagone J to direct the Prothonotary to seal the originating processes was self-evident and called for no reasons to be given. It is clear that his Honour was satisfied that the ground for refusal under r 27.06(1) had been made out.

1. No error has been demonstrated in failing to give reasons in this case.  The applications do not disclose any ground of appeal which should be permitted to be advanced and on their face are frivolous.  There is no proper basis for the proposed appeal. 

Right to Equality Before the Law and to a Fair Trial and the Rules of Court

1. The right to equality before the courts as provided for in the ICCPR, and the right to a fair trial, as provided for in that instrument, do not focus on single issues, but rather consist of a complex set of rules and practices. [18]

   [18]See Article 14 ICCPR.

1. The importance of these rights in the protection of human rights generally is underscored by the fact that the effective observance of all human rights ultimately depends upon the proper administration of justice.

1. The rules which govern the administration of justice in Victoria are comprehensive. Examples are provided by the Rules, the Act and the vast body of case law developed over centuries to facilitate the orderly and fair disposition of court business.

1. The High Court in Aon Risk Services Australia Ltd v Australian National University[19] also recognised the application of case management by courts needs to take into account the fact that ‘the resolution of disputes serves the public as a whole, not merely the parties to the proceedings’.[20]

   [19][2009] HCA 27 (5 August 2009).

   [20]Ibid [113] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.

1. Together these rules provide a key element of human rights protection and serve as a procedural means to safeguard equality before the law and the right to a fair trial itself. In order to work, it cannot be left to the dictates of a party to a legal proceeding to determine the content of these rights. To proceed otherwise would be to abrogate the rule of law.

1. In Victoria, the Rules supported by the Act provide for a case management regime established for the conduct of civil appeals. It is an important body of rules governing the manner in which an appeal may be fairly conducted. The Rules and the Act provide for a demonstrably important and necessary body of governing principles, without which no trial or appeal could be fairly conducted, or indeed at all.

1. Rule 65.07 is part of that regime.  It provides a facility to give fair notice to the opposite party of the application it has to meet and the material upon which the application is made.  It also serves to appraise the Court of these matters so as to assist it in preparation for the hearing.  A failure to comply with these rules may have deleterious effects, not only upon the other party to the proceedings in question, but also upon the Court in grappling with the case sought to be advanced by the applicant and comprehending the issues to be agitated. The failure may also have an adverse, albeit indirect, effect on other litigants, brought about by the unnecessary diversion of Court staff in dealing with the non-compliance.

Conclusion

1. In the exercise of the Court of Appeal’s inherent jurisdiction to dismiss an appeal for want of prosecution and pursuant to the powers conferred by s 29 of the Act, each of the four applications should be dismissed in the interests of the administration of justice, on the grounds that they have not been reasonably prosecuted and disclose no proper basis for any appeal.

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