Re Cokyavuz
[2016] VSC 370
•28 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
In a proposed proceeding
IN THE MATTER of an application by Selim Cokyavuz for a direction under r 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2015.
BETWEEN
SELIM COKYAVUZ & ORS
Proposed plaintiffs
and
IGOR TRUSH & ORS
Proposed defendants
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 28 June 2016 |
CASE MAY BE CITED AS: | Re Cokyavuz |
MEDIUM NEUTRAL CITATION: | [2016] VSC 370 |
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PRACTICE AND PROCEDURE – Unrepresented litigant – Refusal by Prothonotary to seal a document as originating process – Proposed plaintiff seeking direction to Prothonotary to seal – Documents irregular in form – Application for a direction under r 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2015.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance (the application being referred on the papers by the Prothonotary) | |
HIS HONOUR:
On 30 May 2016, the Prothonotary of this Court (via a Deputy Prothonotary) refused to seal or to accept for filing an originating motion, summons and supporting affidavit sworn 30 May 2016. The applicant and a proposed plaintiff, Selim Cokyavus (‘Applicant’), now seeks a judicial direction to the Prothonotary pursuant to r 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) that the Prothonotary accept these documents and seal the originating process.
Rule 27.06(1) empowers the Prothonotary to 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 process. In this case, the Prothonotary outlined specifically that:
The Originating Motion is an abuse of process in that it seeks to “rescind” or “set aside” execution of a warrant for possession of a property at which Mr Cokyavuz was a tenant. That warrant was, on Mr Cokyavuz’s own evidence executed on 25 May 2016; and
The summons is also considered to be irregular or an abuse of process of the Court in that it is indecipherable and illegible.
On 13 May 2016, the Victorian Civil and Administrative Tribunal (‘VCAT’) ordered that Applicant’s landlord was entitled to a possession order over the rental property in which the Applicant was residing, and that the tenant must vacate the premises by 13 May 2016. The order further stated that failure to vacate the rental premises by the date stipulated may result in the tenant being forcibly vacated by a member of Victoria Police or an authorised person carrying out a warrant of execution.
According to the Applicant’s affidavit, a warrant of possession was executed upon the property on 25 May 2016.
As described by the Deputy Prothonotary, the remedy sought by the Applicant (as outlined in his proposed originating motion) is that the Court ‘rescind the purchase of the warrant of possession made by the Principal Registrar of the Victorian Civil and Administrative Tribunal’. He seeks orders that the execution of the warrant be ‘set aside’; that the warrant of possession be postponed; that the tenants be ‘entitled to recover any property left on the premises’; that the tenants enter into a payment agreement for payment of the rent owed; and that the tenants be given a reasonable opportunity to finalise the rent owed.
Pursuant to s 148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998 (‘VCAT Act’), a party to a VCAT proceeding may appeal a decision of the tribunal to the Trial Division of the Supreme Court of Victoria on a question of law. Section 148(7) of the VCAT Act empowers a judge of the Trial Division of the Supreme Court, on the hearing of a VCAT appeal, to make: an order affirming, varying or setting aside the order of the Tribunal; an order that the Tribunal could have made in the proceeding; an order remitting the proceeding to be heard and decided again; or any other order that the court thinks is appropriate.
Section 446 of the Residential Tenancies Act 1997 (‘RTA’) grants VCAT jurisdiction to hear and determine an application under that Act relating to any matter arising in relation to a tenancy agreement or a proposed tenancy agreement of premises situated in Victoria.
Section 334(1) of the RTA provides that, when a possession order is made, a tenancy agreement terminates ‘at the end of the day before the day on which the possession of the rented premises is delivered up to the landlord’. The tenancy agreement between the Applicant and his landlord thus terminated at the end of 24 May 2016. There is no provision in the RTA that provides jurisdiction for the reinstatement of a tenancy agreement that no longer exists.
In Director of Housing v Prideaux[1], pursuant s 120 of the VCAT Act, an evicted tenant sought review of the decision to make a possession order after a warrant of possession had already been executed. The presiding member found that the Tribunal had no jurisdiction to set aside a possession order that had been carried out, as the termination of the of the tenancy under s 334 of the RTA rendered the Tribunal ‘functus officio’ in respect of that tenancy agreement.[2]
[1][2015] VCAT 1317.
[2]Ibid [40], citing Baily v Marinoff (1971) 125 CLR 529, 530 (Barwick CJ).
The same jurisdictional limitation confronts this Court. The remedy sought by the Applicant is not available, and for the same reasons, an order postponing execution of a warrant cannot be made.
To direct the Prothonotary to seal the proposed originating process would result in an abuse of process. I decline to make that direction.
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