McVey v G.J & L.J Smith Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0005

WILLIAM MCVEY	Applicant
v
G.J & L.J SMITH PTY LTD	First Respondent
VICTORIAN WORK COVER AUTHORITY	Second Respondent

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JUDGES:	KENNEDY JA
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	14 February 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 4

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PRACTICE AND PROCEDURE – Court of Appeal – Applications – Filing – Power of Registrar –– Registrar refused to accept documents for filing – Applicant sought judicial direction to Registrar to accept documents for filing – Documents irregular – Documents do not comply with Supreme Court (General Civil Procedure) Rules 2015 – Application for direction refused – Supreme Court (General Civil Procedure) Rules 2015, r 64.43(1), (2), (5).

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Counsel

No attendance and no written submissions

Solicitors

No attendance and no written submissions

KENNEDY JA:

The applicant seeks an order that the Registrar be directed to accept his application dated 19 December 2023 for filing.
For reasons expressed below, the application will be refused.

Background

The applicant had a work-related accident in 1999. In 2001, he lodged a claim (‘first claim’) under s 98C of the Accident Compensation Act 1985 (the ‘Act’) in respect of the physical injuries he had suffered. The second respondent (VWA) accepted liability and he received lump sum compensation and then weekly payments.
In 2008, he lodged a further claim for compensation (‘second claim’) for permanent disability in relation to his schizophrenia condition. The VWA rejected this claim on the basis that s 104B(5AA) of the Act only permitted one claim for compensation in respect of the injuries that the applicant suffered in the accident. He then (through his litigation guardian) brought a proceeding in the County Court challenging this rejection. On 21 January 2011, the County Court dismissed the proceeding.[1]
[1]McVey v G J & L J Smith Pty Ltd [2011] VCC 135.
On 17 December 2012, this Court allowed the applicant’s appeal from the County Court.[2] The Court found that the Act did not prevent a second claim being lodged under s 98C if it is proved that the claimant had a mental incapacity at the time of lodging the prior claim, and that, given the uncontested evidence, the judge ought to have found that the applicant suffered from a mental incapacity at the time of lodging the first claim. The Court made orders, inter alia, that the respondents ‘assess the applicant’s [second claim] in accordance with law’.
[2]McVey v G L & L J Smith Pty Ltd (2012) 37 VR 433; [2012] VSCA 312 (‘Reasons’).
On 19 December 2023, the applicant submitted two documents for filing as follows:
(a)application other than for leave to appeal which names the abovenamed respondents; and
(b)Court of Appeal order dated 17 December 2012, together with the Reasons for decision.
By the proposed application, the applicant seeks, amongst other things, the following relief:
I wish to apply for the following order: THAT THE RESPONDENTS BE FOUND TO BE HELD IN CONTEMPT OF COURT FROM FAILURE TO COMPLY WITH THE ORDERS OF THE COURT OF APPEAL HELD ON THE 17^TH DECEMBER 2012.
THE COURT OF APPEAL ORDERS THAT:
2 (b) the defendants assess the plaintiffs [sic] claim dated 16^th March 2007 in accordance with Law.
The applicant did not file any submissions or any affidavit[3] in support of the application. However, the application provides the following brief explanation:
THE RESPONDENT REFUSES TO COMPLY WITH THE ORDERS OF THE COURT OF APPEAL HELD ON THE 17^TH DECEMBER 2012 AND FOLLOW THE DIRECTIONS HELD AND GIVEN DURING THE HANDING DOWN OF THE COURT OF APPEALS [sic] JUDGEMENT [sic].
…
THE RESPONDENT, THE AUTHORITY AND IT’S AGENT … HAVE NOT COMPLIED WITH THE ORDERS OF THE COURT OF APPEAL DATED 17^TH DECEMBER 2012
THE RESPONDENTS HAVE DENIED THE STATUTORY LAW AND TOO THE COMMON LAW RIGHTS OF THE APPLENENT [sic].
NON COMPLIANCE BY THE RESPONDENTS AS TO BEING ORDERED TO FURTHER ‘REVIEW’ ‘REASSESSMENT’ AND ‘FURTHER COMPENSATION’ HAS NOT BEEN COMPILED WITH, NOR WAS ANY REASSESSMENT, OR REVIEW, NOR HAS ANY FURTHER COMPENSATION BEEN PAID, AS ORDERED TO DO SO, BY THE ORDERS OF THE COURT OF APPEAL DATED 17^TH DECEMBER 2012.
[3]See Supreme Court (General Civil Procedure) Rules 2015 (the ‘Rules’), r 64.03(3)(b).
The documents were not accepted for filing for the following reasons:
You have sought to commence a new case in the Court of Appeal by submitting a Form 64B dated 19 December 2023. That document is substantially irregular. It does not set out any comprehensible application that could be brought in the Court of Appeal. Further, you have not submitted any documents necessary to initiate a proceeding in the Court of Appeal in accordance with court rules. Accordingly, pursuant to rules 28A.04(2), and 64.43(1) and 64.43(2), the Registrar of the Court of Appeal refuses to seal the documents submitted, and rejects them.
On 2 January 2024, the applicant sought to re-file the identical documents he had tried to submit for filing on 19 December 2023.
By email of 9 January 2024 to the applicant, the Registry Lawyer referred to the documents submitted on 19 December 2023 and again on 2 January 2024 and informed him that the 2 January 2024 documents were rejected for filing:
On 2 January 2024, you submitted … the same documents that were submitted on 19 December 2023. Those documents are not accepted for filing for the same reasons … Shortly, they will be rejected for filing …
We are unable to provide any legal advice as to the substance of any documents you wish to file. However, by way of procedural assistance, please note that it is important that:
1.any application that you submit clearly sets out the relief that you are seeking, the basis upon which you seek that relief, including information which would explain/support such an application.
2.any Form 64B application must be accompanied by an affidavit in support, submissions of no more than 5 pages, a list of authorities with pinpoint references and an application book index. At a bare minimum, your submissions/affidavit should address the matters in paragraph 1 above.
By email of the same date, amongst other things, the applicant asked for a reconsideration of the refusal to accept his documents for filing. He also wrote to explain ‘what has occurred by the refusal of the [VWA’s agent], and the … VWA to comply with the Orders and Directions given by the Court of Appeal handed down on 17^th December 2012’. The email contains a wide range of complaints which are difficult to understand, including:
(a)that various people had not complied with the orders of this Court, including a Magistrate, the VWA and a Medical Panel;
(b)the VWA and the VWA’s agent have failed to respond to his requests or attempts to seek clarification as to the refusal to comply with this Court’s orders;
(c)the Magistrate has shown ‘bias and prejudice’ against the applicant; and
(d)the lawyers acting for the VWA’s agent have ‘committed perjury’, committed a ‘fraudulent act’ and denied natural justice in the Magistrates’ Court by stating that an agreement was signed and agreed, when this was not the case.
By email of 11 January 2024, the Registry Lawyer informed the applicant that his 9 February 2024 email was being treated as an ‘application for a Judge of Appeal to direct the Registrar to accept [his] documents for filing, pursuant to rule 64.43(5) of the Supreme Court (General Civil Procedure) Rules 2015’. This rule provides that the Court of Appeal constituted by one or more Judges of Appeal may direct the Registrar to accept for filing any document which the Registrar has refused to accept under that rule.
By emails of 16 January 2024, 22 January 2024, and 13 February 2024 (at 11:11 pm) the applicant sent the Court’s Registry various documents, including medical reports. He did not explain their relevance.
I have determined that it was neither necessary or desirable to have an oral hearing to determine the application,[4] and have proceeded to consider the matter on the papers.
[4]See ibid, r 64.15(2).

Resolution

Given the broad ranging nature of the complaints, I agree with the Registrar that the documents filed do not set out any ‘comprehensible application’. I also agree with the Registrar’s conclusion that the documents are substantially irregular. Apart from the fact that no affidavit has been filed,[5] the documents are not easy to understand. They contain high level statements such as ‘failure to comply with … orders’ and ‘denied the statutory law and … common law rights’, but do not contain any detail as to the particular act, matter or thing alleged to form the foundation for the claims. It is self‑evident that the applicant, as an unrepresented litigant, might have difficulty in formulating his claim. However, as currently framed, the application provides ‘no sensible basis from which the Court could properly consider the merits of the application.’[6]
[5]And noting that in his email of 9 January the applicant claims that he was advised by a Registry lawyer that there was no need to provide a ‘further affidavit in support’.
[6]Sgargetta v National Australia Bank Ltd [2015] VSCA 289, [22] (Priest JA).
The email of 9 February 2024 does not form part of the documents which are the subject of the current application. However, even if they are considered, the statements made therein are also difficult to understand and are conclusionary. They do not identify the precise conduct the subject of complaint. This is despite the fact that a range of serious allegations are made, including perjury, bias and fraud, as well as a refusal to comply with orders. The applicant also makes allegations against the VWA, as well as allegations against a Magistrate, a Medical Panel and lawyers acting for the VWA’s agent.
The Registrar was therefore correct to reject the documents for filing on the basis that they were irregular and/or they do not comply with the Rules.
The application for a direction to the Registrar must be refused.
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[2024] VSCA 4

14 February 2024