Milvan Frank Muto v Shepparton City Council and Robert Crow
[2018] VSCA 274
•29 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0078
| MILVAN FRANK MUTO | Applicant |
| v | |
| SHEPPARTON CITY COUNCIL and ROBERT CROW | Respondents |
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| JUDGES: | BEACH JA and MACAULAY AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 October 2018 |
| DATE OF JUDGMENT: | 29 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 274 |
| ORDER APPEALED FROM: | Muto v City of Greater Shepparton & Anor (County Court of Victoria, Judge Saccardo, 29 May 2018) |
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PRACTICE AND PROCEDURE – Application for leave to appeal – Primary judge directed registrar not to permit applicant to file writ – Whether proceeding if issued would be irregular or an abuse of process – No reasons given for order – Defective general endorsement – Endorsement not complying with r 5.04 of County Court Civil Procedure Rules 2008 – Not reasonably arguable that proceeding would not be irregular if writ permitted to be filed – Application for leave to appeal having no prospect of success – County Court Civil Procedure Rules 2008, rr 5.05 and 27.06.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the Respondents | No appearance | Crow Legal Pty Ltd |
BEACH JA
MACAULAY AJA:
This is an application for leave to appeal from an order of a County Court judge directing the County Court Registrar not to permit the applicant to file a writ dated 7 May 2018 (‘the writ’).
The writ
The writ names the applicant as plaintiff, the City of Greater Shepparton as the first defendant and Robert Murray Crow as the second defendant. In purported compliance with r 5.04 of the County Court Civil Procedure Rules 2008 (‘the County Court Rules’), the applicant endorsed the writ as follows:
The first defendant and the second defendant breached their obligations to properly indemnify the plaintiff pursuant to section 76 and section 76(A) of the Local Government Act 1989 and clause 46F of Schedule 1 of the VCAT Act 1998 with regard to liabilities properly incurred by the plaintiff in the course of his duties as a councillor of the City of Greater Shepparton, thereby causing the plaintiff loss and damage, particulars of which will be provided prior to the trial of this matter.
The applicant’s reference to ‘the VCAT Act 1998’ in his endorsement is a reference to the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’).
Relevant background
Some of the relevant background to the present application can be found in this Court’s decisions of Muto v Shepparton City Council[1] (‘Muto1’) and Muto v The City of Greater Shepparton[2] (‘Muto2’).
[1][2018] VSCA 73.
[2][2018] VSCA 75.
Muto1 concerned two applications for leave to appeal brought by the applicant against the first respondent. The first application related to a decision made by Keogh J in the Trial Division,[3] and the second related to a decision made by Judge Marks in the County Court.[4]
[3]Muto v Shepparton City Council [2017] VSC 210.
[4]Janover v Muto [2017] VCC 811.
In Muto1, the applicant sought to appeal from the Trial Division’s order refusing him leave to appeal a VCAT order that the first respondent was not required to pay the applicant’s costs of a proceeding in VCAT in which it had been held that the applicant had engaged in serious misconduct in his capacity as a councillor. The second application in Muto1 was an application for leave to appeal an order made in the County Court, in third party proceedings against the first respondent, striking out a paragraph in the applicant’s statement of claim that sought an indemnity for the applicant’s costs incurred in the VCAT proceeding pursuant to cl 46F of sch 1 of the VCAT Act.
The applicant was successful in his application for leave to appeal against the order of the Trial Division, and the order made by VCAT that the first respondent was not required to pay the applicant’s costs of the VCAT proceeding was set aside. The question of whether VCAT should make an order under cl 46F of sch 1 of the VCAT Act that the first respondent not be required to pay the applicant’s costs of the VCAT proceeding was remitted to VCAT. The applicant was thus permitted to pursue his claim against the first respondent for an indemnity under cl 46F of sch 1 in VCAT.
The application for leave to appeal against the decision of Judge Marks was refused because the issue the applicant sought to agitate in relation to his costs was able to be pursued at VCAT. As the Court said in Muto1:
Even if the applicant’s claim in the County Court under cl 46F had some utility, it would be contrary to the public interest for there to be two proceedings in relation to the same subject matter before two separate forums. VCAT is clearly the most appropriate forum because it decided the serious misconduct proceeding and the subject matter of the applicant’s claim relates to the costs of that proceeding.[5]
[5]Muto1 [2018] VSCA 73 [94] (Kyrou JA), [117] (McLeish JA), [119] (McDonald AJA).
Like the present application in this Court, Muto2 concerned an application by the applicant for leave to appeal from an order of a County Court judge directing the County Court Registrar not to permit the applicant to file a writ (‘the earlier writ’). The earlier writ named the applicant as plaintiff, the first respondent as the first defendant, the second respondent as the second defendant and 21 other individuals as the third to twenty-third defendants. The r 5.04 endorsement on the earlier writ was in the following terms:
The first defendant breached its obligations to properly indemnify the plaintiff, pursuant to section 76 and section 76(A) of the Local Government Act 1989 and the Victorian Civil and Administrative Tribunal Act 1998, clause 46(F) of Schedule 1, and otherwise denied the plaintiff natural justice, procedural fairness and breached its legislative duty pursuant to the aforesaid legislation, the Charter of Human Rights and the WIRC Act and common law duty of care to the plaintiff and otherwise has caused him loss and damage. The second defendant and other defendants aided and abetted the first defendant and otherwise conspired against the plaintiff and have thereby caused him loss and damage.
The applicant’s application for leave to appeal against the earlier order of the County Court that he not be permitted to file the earlier writ was unsuccessful. In refusing leave to appeal on that occasion, this Court said:
The County Court judge was plainly correct when she directed the County Court Registrar not to permit the applicant to file the writ. Rule 5.04 of the County Court Rules required the writ to contain an endorsement that was either a statement of claim or ‘a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding’. The endorsement on the writ in this case was neither a statement of claim, nor a statement of the kind required, in the alternative, by r 5.04. The applicant’s endorsement on a writ does not provide any particularity of the nature of the claim and the cause thereof against the twenty-three named defendants.
…
The Court of Appeal may grant an application for leave to appeal (under s 14A of the Supreme Court Act 1986)[6] only if it is satisfied that the appeal has a real prospect of success.[7] As has been said before, the phrase ‘a real prospect of success’ draws a distinction between an appeal which has a real prospect of success as opposed to one in which the prospect of success is merely ‘fanciful’.[8] Additionally, the Court retains a discretion whether to grant an application for leave to appeal despite being satisfied that the appeal has a real prospect of success.[9]
In the present case, there is no doubt about the correctness of the judge’s order. The applicant’s prospect of success is fanciful. There is nothing in the endorsement on the writ which gives any real notice of the nature of the claim to be made against each of the twenty-three defendants. The mere rolling up of multiple allegations of breaches of obligations, statutory provisions and duties, coupled with the broadest allegations of denials of natural justice and procedural fairness, which are then layered with allegations of aiding and abetting and conspiracy, made against all defendants, which are then said to cause loss and damage (all of which is entirely unparticularised) does not go any way towards complying with r 5.04 of the County Court Rules. There can be no doubt about the correctness of the judge’s order directing the County Court Registrar not to permit the applicant to file the writ.
Even if there was doubt about the correctness of the judge’s order, leave to the applicant to appeal should, as a matter of discretion, be refused. This is because the applicant has not demonstrated any relevant injustice in leaving the judge’s order unreversed. The judge’s order was made in respect of an interlocutory question of practice and procedure. It did not determine any rights of the applicant. Upon the applicant not being permitted to file the writ, the applicant was at liberty to prepare, and seek to file, a new writ — one that complied with the County Court Rules. Moreover, the applicant remains at liberty to seek to file a writ against anyone he claims to have a right of action against — provided that such writ complies with the County Court Rules, and is not otherwise an abuse of process.[10]
[6]Which relates to civil appeals.
[7]See section 14C of the Supreme Court Act 1986.
[8]Kennedy v Shire of Campaspe [2015] VSCA 47 [12] (‘Kennedy’); Burgoyne Real Estate Pty Ltd v Dutt [2017] VSCA 372 [65] (‘Burgoyne’).
[9]Kennedy [2015] VSCA 47 [5]; Northern Health v Kuipers [2015] VSCA 172 [11]; Burgoyne [2017] VSCA 372 [65].
[10]Muto2 [2018] VSCA 75 [11]–[15] (citations in original).
The proceeding in the County Court
On 29 May 2018, Judge Saccardo signed an order in the following terms:
ORDER
Upon referral to Judge Saccardo to determine whether the Registrar is to be directed to permit the plaintiff to file a Writ endorsed with a Statement of Claim/generally endorsed Writ the order of the Court is:
1.The Registrar is directed not to permit the Plaintiff to file the Writ and Statement of Claim/generally endorsed Writ pursuant to r 27.06.
The following points may immediately be made:
(1)The order appears to be a pro forma order, contemplating the striking out of either the words ‘Writ endorsed with a Statement of Claim’ or ‘generally endorsed Writ’ in the introduction, and either the words ‘Writ and Statement of Claim’ or ‘generally endorsed Writ’ in the operative part of the order. In the present case, no words were struck out.
(2)The material in the Application Book does not disclose how the matter came to be referred to Judge Saccardo. That is, there is no material before this Court relating to any procedural steps taken in the County Court between the time the applicant attempted to file the writ and the making of the order.[11]
(3)The order is expressed to be made pursuant to r 27.06. Rule 27.06 permits a judge to direct the County Court Registrar ‘to seal an originating process or accept a document for filing’.[12] The rule does not, in terms, permit a judge to direct the Registrar not to permit a plaintiff to file a writ. The process that appears to be contemplated under the rule is that the Registrar will refuse to seal an originating process, and that decision will have operative effect unless a judge directs the Registrar to the contrary. This does not appear to have been the course taken in the present case.
[11]Cf Muto2 [2018] VSCA 75 [4] where the material disclosed that, before the order sought to be impugned on that occasion, the County Court Registrar, relying on r 27.06 of the County Court Rules, refused to seal the earlier writ ‘on the grounds it will be irregular or an abuse of the process of the court’.
[12]Such a direction may be obtained either upon the Registrar approaching a judge directly, if unsure what to do, or upon the application of a person whose originating process the Registrar has refused to seal.
On 15 June 2018, the ‘Case Manager – Self Represented Litigants’ of the County Court sent a letter to the applicant in the following terms:
I refer to the above originating process that you have requested be issued at the County Court of Victoria at Melbourne.
I have been directed by a Judge not to permit you to file the documents as set out on the enclosed Order. Accordingly, I am returning your documents (enclosed).
Do not hesitate to contact me if I can be of further assistance.
On 19 June 2018, the applicant sent an email to the case manager in which he asked for his email to be forwarded to Judge Saccardo’s chambers with a request that his Honour give reasons for the order. The request for reasons contained the following:
I respectfully ask his Honour what rule or section I have not complied with. I sincerely tried to comply with the directions given to me [in Muto2].
On 21 June 2018, the case manager wrote to the applicant advising him that the judge had indicated that he would ‘not be providing reasons for his direction not to permit the Registrar to file the writ’.
The present application
In his application for leave to appeal, the applicant identifies four reasons for granting leave to appeal as follows:
1. No reasons given or inadequate reasons given.
2. My case has merit and good prospect (sic) of success.
3. My case is not frivolous.
4. My case is not an abuse of process.
In seeking leave to appeal, the applicant identified three proposed grounds of appeal as follows:
1.By not giving me reasons why my application is rejected I am deprived of knowing why my application is flawed, I am also very confused as to what I need to do to prepare an acceptable application for the court, this being my second attempt. The application to the County Court was written for me by a practicing solicitor on a pro bono arrangement and he assures me that he has never had an application like this refused in the past. Therefore without proper reasons I am at a loss as to why I cannot be heard. it is said that the reasons must do justice to the issues posed by the party’s cases. Discharge of the judge’s obligation is necessary to enable the parties to identify the basis of the judge’s decision and the extent to which my arguments have been understood, and accepted. It is necessary that a judge enter into the issues canvassed and explain why one case is preferred over another.
2. 27.06 Has two limbs to it, but I am given no indication as to which limb I do not comply with. Also 27.06 is a provision that gives power to the Registrar to refuse an application. There is nothing in 27.06 that allows a Judge to refuse an Application. 27.06 In my case, it would seem that the Registrar has bypassed 27.06 and sent my application up to a Judge without the Registrar making a decision. This takes away my right to appeal the Registrars decision to a Judge of the Court. Judge Saccardo has relied on 27.06 when I don’t think he can. I therefore think that Judge Saccardo has fallen into jurisdictional error because he has misunderstood the scope of His Jurisdiction, by undertaking some more limited form of Appeal. When an appellate Court concludes that the Judge has given inadequate Reasons, the inevitable result, however regrettable, is that there must be a new trial or new Hearing.
3.The failure of a Judge to give reasons, especially when asked to do so, for His decision constitutes an error of law because such a failure makes it impossible for the appellate Court to determine whether or not the decision was based on an error of law.
The application for leave to appeal contains a section headed ‘Written case’. The following passages of the written case appear to encapsulate the claim the applicant wishes to make against the respondents:
I have commenced proceedings against the Shepparton City Council and their Solicitor Robert Crow because they have conspired to have me removed from Council, in a way that is contrary to law and they have without proper process or authorisation deprived me of all my rights and expectations under the Local Government Act 1989, Schedule 1 of the VCAT 1998, and many other Acts of Parliament, including the wrongs Act.
After written advise called for by the Council from the Municipal Association of Victoria and their Head lawyer Allison Lyons, that Council is to bear the costs of my proceedings in regards to legal representation and out of pocket expenses. The Council CEO without authorisation engaged local solicitor Robert Crow to work out how to not pay my costs. Robert Crow commenced a strategy of lies and deceit that is difficult to digest but it is all documented. I have not had the opportunity to present those documents as yet to any Court.
Robert Crow along with the CEO of the Council and the Council itself have broken many sections of the Local Government Act 1989 some of which carry terms of imprisonment. The misfeasance in office by the Council and their staff and solicitor must be stopped in the interest of Justice.
In response to the applicant’s written case, the respondents filed a notice of intention not to respond or contest the application for leave to appeal.
Analysis
Rule 27.06(1) of the County Court Rules permits the County Court Registrar to refuse to seal an originating process without the direction of the Court where the Registrar considers that the formal contents of the relevant document shows that ‘were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court’. Rule 27.06(3) permits the Court to direct the Registrar to seal an originating process or accept a document for filing.
The endorsement on the writ in the present case discloses that the applicant’s claim against the respondents relates to alleged breaches of obligations allegedly owed by them to indemnify him pursuant to ss 76 and 76A of the Local Government Act and cl 46F of sch 1 of the VCAT Act. Section 76 of the Local Government Act requires a council to indemnify a councillor ‘against all actions or claims … in respect of any act or thing done or omitted to be done in good faith in the exercise or purported exercise of any function or power conferred on [the councillor]’. Section 76A requires a council to take out and maintain public liability and professional liability insurance. Clause 46F of sch 1 of the VCAT Act provides that, despite s 109 of the VCAT Act, a council must bear the costs of certain identified proceedings for review brought pursuant to s 81Q(2) of the Local Government Act.
The first point to observe is that the second respondent (referred to as the first respondent’s solicitor in the applicant’s written case) is not a person upon whom any obligations are imposed by any of ss 76 or 76A of the Local Government Act or cl 46F of sch 1 of the VCAT Act. That said, it is plain from the applicant’s written case that the applicant wishes to maintain a claim against the second respondent. The applicant’s written case appears to foreshadow claims against the second respondent for conspiracy, breaches of other statutory provisions not referred to in the endorsement on the writ, and/or ‘misfeasance in office’. None of these matters, however, are referred to in any way in the endorsement on the writ.
The endorsement on the writ suffers from the same defects identified in Muto2. The endorsement (like its predecessor) is neither a statement of claim, nor a statement of the kind required, in the alternative, by r 5.04 of the County Court Rules. Again, the applicant’s endorsement does not provide any particularity of the nature of the claim and the cause made against the respondents.[13] The defects in the endorsement on the writ are not cured by the provision of the words ‘particulars of which [being loss and damage] will be provided prior to the trial of this matter’.
[13]Cf Muto2 [2018] VSCA 75 [11].
It is perhaps unfortunate that the judge refused the applicant’s request for reasons. The applicant asserts that he does not know whether the order made against him in the County Court was made on the basis that the proceeding, if commenced, would be irregular or an abuse of the process of the Court.[14] Very short reasons could (and perhaps should) have been given by the judge. Such reasons would have clarified the matter.[15] An example of reasons containing the sort of detail that might reasonably have been given in this case can be found in this Court’s decision in Re Klement.[16]
[14]Cf r 27.06(1) of the County Court Rules.
[15]As to the normal, but not universal, requirement of a judge to provide reasons for judgment, see Ta v Thompson (2013) 46 VR 10, 16–17 [27]–[31] and the authorities referred to therein.
[16][2011] VSCA 40 [3].
Rule 5.04 of the County Court Rules requires a writ to contain an endorsement that is a statement of claim or:
a statement sufficient to give with reasonable particularity notice of the nature of the claim and the cause thereof and of the relief or remedy sought in the proceeding.
The rule requires the endorsement to contain sufficient of:
(1) the nature of the claim;
(2) the cause of action relied upon; and
(3) the relief or remedy sought.[17]
[17]Ruzeu v Massey-Ferguson (Aust) Ltd [1983] 1 VR 733, 737 (‘Ruzeu’).
In the course of argument, the applicant submitted that the endorsement on the writ complied with r 5.04 because the respondents knew the details of the claims that the applicant wishes to make against them — they having been told by him of the claims he wished to make on numerous occasions in the past.
Notwithstanding whatever knowledge the respondents might actually have of the various claims the applicant wishes to make, however, r 5.04 requires a plaintiff to endorse ‘with reasonable particularity’ the nature of the claims, the causes of action relied upon and the relief or remedy sought.[18] In the present case, one might expect a r 5.04 endorsement to identify the applicant’s alleged causes of action against each respondent, and to provide details (by reference to dates and subject matter) of the various matters in respect of which an indemnity is sought, or in respect of which a claim is made for damages or other relief.
[18]The question whether the endorsement complies with the rule is determined by examining the endorsement itself and knowledge of the named defendant of the allegations is not relevant in that enquiry: Ruzeu [1983] 1 VR 733, 734.
In the present case, it is not necessary to determine whether the judge erred in failing to provide reasons or in any of the other ways contended for by the applicant. This is because there was no error in the court below in refusing to permit the applicant to file the writ. The writ failed to comply with r 5.04 and, for that reason alone, should not have been allowed to have been filed in the County Court. There is no prospect that this Court would reverse that order on appeal irrespective of the arguments raised now about the correctness of the County Court process.
Moreover, the endorsement on the writ suggests that the applicant wishes to agitate in the County Court his entitlement under cl 46F of sch 1 of the VCAT Act — a matter that has now been remitted by this Court (in Muto1) to VCAT. As was said in Muto1, it would be contrary to the public interest (and thus an abuse of process) for there to be two proceedings in relation to the same subject matter in two different forums.
The applicant may well have valid causes of action that can be taken against the respondents in the County Court. His difficulty to date is that he has failed to identify those causes of action with the particularity required by the County Court Rules (and in particular r 5.04). Further, and having regard to the history of the applicant’s proceeding, in identifying the claims he wishes to make, care should be taken by the applicant to ensure that he is not seeking to run the same claim (or claims) in two different forums.[19]
[19]See Muto1 [2018] VSCA 73 [94].
In the present case, there is no doubt about the correctness of the judge’s order. There is nothing in the endorsement on the writ which gives any real notice of the nature of the claim to be made against the first respondent — much less anything that gives any notice of the nature of the claim to be made against the second respondent. Even if there was doubt about the correctness of the judge’s order, leave to the applicant to appeal should, as a matter of discretion, be refused. As was said in Muto1, this is because the applicant has not demonstrated any relevant injustice in leaving the judge’s order unreversed.[20]
[20]See Cargill Australia Ltd v Viterra Malt Pty Ltd [2018] VSCA 260 [111]–[113].
The applicant remains at liberty to prepare, and seek to file, a new writ that complies with the County Court Rules and is not otherwise an abuse of process. Having regard to what we have already said, ideally one might expect the applicant to attempt to file a writ endorsed with a statement of claim. If the applicant is going to pursue claims in the County Court against the respondents of the kind he has foreshadowed in his written case and oral argument, then at some point early in the proceeding it would be expected that he will be required to file a statement of claim. A statement of claim will likely obviate the need for further argument about the issues that have already vexed the applicant. A statement of claim should also put beyond doubt any notion that the applicant is seeking to argue identical claims in different forums.
That said, the County Court Rules permit the applicant to endorse a writ as required by r 5.04. If the applicant is not to endorse his next writ with a statement of claim, then an endorsement which sets out (by reference to dates and subject matter) the matters in respect of which the applicant claims an indemnity or other relief (identifying that relief) will be necessary. The endorsement should also identify the basis or bases upon which each claim is made against each respondent, together with the various causes of action relied upon by the applicant (breach of contract, agreement, statutory or tortious). The endorsement should also make clear that no claim is being made against the first respondent that is currently the subject of a proceeding against that party at VCAT. One might reasonably expect that a writ containing an endorsement of the kind we have described would be permitted to be filed in the County Court — leaving to any party named as a defendant the ability to make any strikeout or other application that they might be advised to make once a proceeding has been issued.
Conclusion
The applicant’s proposed appeal against the order made by the judge has no real prospect of success. Accordingly, the application for leave to appeal must be refused.[21]
[21]See s 14C of the Supreme Court Act 1986.
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