Milvan Frank Muto v The City of Greater Shepparton

[2018] VSCA 75

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0034

MILVAN FRANK MUTO	Applicant
v
THE CITY OF GREATER SHEPPARTON and ORS	Respondents

---

JUDGES:	BEACH JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	27 March 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 75

---

PRACTICE AND PROCEDURE – Application for leave to appeal – Registrar refused to seal applicant’s writ – Judge directed registrar not to accept writ for filing – Application for leave to appeal dealt with by single judge of appeal without oral hearing – Judge at first instance plainly correct – No injustice in leaving interlocutory decision on question of practice and procedure unreversed – Application for leave to appeal totally without merit – County Court Civil Procedure Rules 2008, rr 5.04 and 27.06 – Supreme Court Act 1986, ss 14C and 14D.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearances
For the Respondent

BEACH JA:

1. 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 10 January 2018 (‘the Writ’). 

The writ

1. The writ is dated 10 January 2018.  It names the applicant as plaintiff, and The City of Greater Shepparton as the first defendant.  Twenty-two individuals are named as the second to twenty-third defendants.  In the writ, the addresses of 17 of these individuals is given as ‘C/O The City of Greater Shepparton’, suggesting that they may have some connexion with the first defendant.  The twenty-first defendant is a barrister with chambers in Melbourne.  The twenty-third defendant’s address is given as ‘C/O Shepparton Newspapers Pty Ltd’, suggesting he may have some connexion with a media organisation.  The remaining defendants are said to have addresses in Shepparton or East Albury.

1. In purported compliance with Rule 5.04 of the County Court Civil Procedure Rules 2008 (‘the County Court Rules’), the applicant endorsed the writ as follows:

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.

History of the proceeding

1. On 12 January 2018, the County Court Registrar, relying on r 27.06 of the County Court Rules, refused to seal the writ ‘on the grounds it will be irregular or an abuse of the process of the Court’. Subsequently, the matter was referred to the judge to determine whether the registrar should be directed to permit the applicant to file the writ. Rule 27.06(3) of the County Court Rules permits a judge to direct the registrar to accept a document for filing. 

1. On 16 February 2018, the judge made an order directing the registrar not to permit the applicant to file the writ. 

1. On 9 March 2018, the applicant lodged an application for leave to appeal, together with a written case, list of authorities and summary.

1. On 13 March 2018, the Registrar of this Court refused to accept the applicant’s documents for filing. In an email of the same day, a deputy registrar advised the applicant that the writ did not comply with r 5.04 of the County Court Rules and that the writ sought to pursue ‘claims that either have been or are currently the subject of other court proceedings’.  The email concluded that, given these matters, ‘the proposed application for leave to appeal is frivolous, and allowing it to be filed would give rise to an abuse of the process of the Court’.

1. On 14 March 2018, the applicant sent an email to the Court of Appeal, contesting the refusal of the Registrar to accept his documents for filing.  The Registrar treated this email as an application pursuant to r 64.43(5) of the Supreme (General Civil Procedure) Rules 2015 (‘the Supreme Court Rules’) for a direction that the Court of Appeal, constituted by one or more judges of appeal, direct him to accept the applicant’s documents for filing. 

1. On 16 March 2018, after considering the applicant’s papers, I directed the Registrar to accept the documents for filing.  I did so because it seemed apparent that if the applicant was not permitted to file his documents there would continue to be an unproductive exchange of correspondence between the applicant and the Registrar.[1] 

   [1]Cf Djime v Le [2016] VSCA 105 [18]–[19].

1. On the same day (16 March 2018), the Registrar, pursuant to r 64.15(1) of the Supreme Court Rules, referred the applicant’s application for leave to appeal to me for it to be considered and dealt with under r 64.15.  Upon the Registrar’s referral, I considered that it was neither necessary nor desirable to have an oral hearing of the application for leave to appeal.[2]  Thus the applicant’s application for leave to appeal now falls to be determined on the papers.

   [2]See Rule 64.15(2) and (5) of the Supreme Court Rules.

Analysis

1. 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. 

1. While the assertion in the Registrar’s email of 13 March 2018, that the writ seeks to pursue claims that have been made in other proceedings may be correct, and that this is a further basis for refusing the applicant relief in this Court, it is not necessary to go so far. Moreover, it is the failure of the applicant to comply with r 5.04 of the County Court Rules that makes it, in any event, difficult to determine whether any of the matters the applicant now wishes to litigate have previously been (or currently are) the subject of court proceedings.  It is sufficient at this stage, however, to state that the County Court Registrar was undoubtedly correct when she refused to seal the writ.  And the judge was similarly correct when she made the order the subject of the present application.

1. The Court of Appeal may grant an application for leave to appeal (under s 14A of the Supreme Court Act 1986)[3] only if it is satisfied that the appeal has a real prospect of success.[4]  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’.[5]  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.[6]

   [3]Which relates to civil appeals.

   [4]See section 14C of the Supreme Court Act 1986.

   [5]Kennedy v Shire of Campaspe [2015] VSCA 47 [12] (‘Kennedy’);  Burgoyne Real Estate Pty Ltd v Dutt [2017] VSCA 372 [65] (‘Burgoyne’).

   [6]Kennedy [2015] VSCA 47 [5]; Northern Health v Kuipers [2015] VSCA 172 [11]; Burgoyne [2017] VSCA 372 [65].

1. 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.

1. 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. 

Conclusion

1. The application for leave to appeal has no real prospect of success, accordingly, it must be refused.[7] Moreover, and for the reasons already given, the application is ‘totally without merit’ within the meaning of s 14D(3) of the Supreme Court Act 1986. 

   [7]See section 14C of the Supreme Court Act 1986.

- - -

SCHEDULE OF PARTIES

MILVAN FRANK MUTO

Applicant

- and –

THE CITY OF GREATER SHEPPARTON

First Respondent

ROBERT MURRAY CROW

Second Respondent

GAVIN CATOR

Third Respondent

GEOFFREY DOBSON

Fourth Respondent

CHRISTOPHER HAZELMAN

Fifth Respondent

JENNY HOULIHAN

Sixth Respondent

CHERIE CRAWFORD

Seventh Respondent

LASLO OROSZVARY

Eighth Respondent

DINNY ADEM

Ninth Respondent

FERN SUMMER

Tenth Respondent

SHELLY SUTTON

Eleventh Respondent

PETER HARRIOT

Twelfth Respondent

RUSSELL PARKER

Thirteenth Respondent

JULIE SALOMON

Fourteenth Respondent

KEVIN RYAN

Fifteenth Respondent

DENNIS PATTERSON

Sixteenth Respondent

RACHEL ELLYAND

Seventeenth Respondent

DAVID WOLF

Eighteenth Respondent

RUSSELL BENNETT

Nineteenth Respondent

MICHAEL POLAN

Twentieth Respondent

DR IAN FRECKELTON QC

Twenty-First Respondent

CHRISTOPHER TEITZEL

Twenty-Second Respondent

ROSS McPHERSON

Twenty-Third Respondent

- - -