Re Dudley
[2019] VSC 593
•30 August 2019
| IN THE SUPREME COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION PRACTICE COURT | Not Restricted |
S ECI 2019 3985
IN THE MATTER of Rule 27.06(1) and (3) of the
Supreme Court (General Civil Procedure) Rules 2015
IN THE MATTER of an application for a proposed proceeding between:
| KEITH DUDLEY | Proposed Plaintiff |
| v | |
| FRANK GUCCIARDO, a Judge of the County Court of Victoria and GREG WILSON, Secretary, Department of Justice & Regulation | Proposed Defendants |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | Referred to a Judge sitting in the Practice Court on 25 July 2019 to be determined ‘on the papers’. |
DATE OF RULING: | 30 August 2019 |
CASE MAY BE CITED AS: | Re Dudley |
MEDIUM NEUTRAL CITATION: | [2019] VSC 593 |
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PRACTICE AND PROCEDURE – Proposed unrepresented litigant - Proposed originating process seeking to issue a writ of habeas corpus - Refusal by Prothonotary to seal originating process and accept documents for filing – Proposed originating process misconceived and/or an abuse of process – Court declined to direct the Prothonotary to seal - Supreme Court (General Civil Procedure) Rules 2015, r 27.06(1), (3), Charter of Human Rights and Responsibilities Act 2006, s 21(7).
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Materials Considered:
Proposed summons dated 29 November 2018.
Affidavit of Keith Dudley sworn 29 November 2018.
Document headed ‘4 page Skeleton Argument’ dated 30 November 2018.
Document headed ‘Requests to the Court: Preliminary Issues’.
Numerous correspondence received by the Court dated August 2019.
HIS HONOUR:
On 25 July 2019, the Prothonotary of the Supreme Court of Victoria (the Prothonotary) referred to the Judge sitting in the Practice Court of this Court, a request for direction in regard to an application to direct the Prothonotary to seal an Originating Process or accept documents for filing.
On 25 March 2019 the Prothonotary had refused to seal or accept the proposed documents referred to in [3(a)-(d)] hereof.
The request for direction is in relation to the following proposed documents which Mr Keith Dudley (the proposed plaintiff) seeks to file:
(a) a proposed Summons dated 29 November 2018 (the proposed Summons);
(b) Affidavit of Mr Keith Dudley sworn 29 November 2018;
(c) document headed ‘4 page Skeleton Argument’ dated 30 November 2018; and
(d) document headed ‘Requests to the Court: Preliminary Issues’.
(hereinafter referred to as ‘the proposed documents’).
By his proposed documents the proposed plaintiff seeks orders including for issuance of a writ of habeas corpus and an order under s 21(7) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter).
The proposed plaintiff also seeks to refer the proposed documents to a Judge of this Court so as to obtain an order to direct the Prothonotary to seal and accept the proposed documents as originating process for filing.
Originating process is instituted when the Prothonotary receives the Originating Process and seals it. At the same time the Prothonotary also dates and files such documents.
Rule 27.06(1) of the Supreme Court (General Civil Procedure) Rules 2015, (Rules of Court) 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 or documents sought to be sealed show that were such document or documents sealed, the proceeding so commenced would be irregular or an abuse of the process of the Court.
Rule 27.06(3) of the Rules of Court provides that the Court may direct the Prothonotary to seal an Originating Process or accept a document for filing. Conversely the Court may, if it considers it appropriate to do so, decline to so direct the Prothonotary in that regard.
On 25 March 2019, the Prothonotary refused to seal or accept the proposed documents for filing for the following reasons:
(a) In assessing the matter, the Prothonotary reviewed the decision of Dudley v Governor, Hopkins Correctional Centre Ararat & Ors,[1] (Dudley) in which the proposed plaintiff was previously denied an application for issuance of a writ of habeas corpus relating to the same term of incarceration.
[1][2017] VSC 580.
(b) In Dudley, J Forrest J referred to Rich v The Secretary to the Department of Justice,[2] (Rich) and indicated that once satisfied that the imprisonment was lawful, a writ of habeas corpus could not issue. His Honour was, with respect, appropriately satisfied that the subject imprisonment by order of Judge Gucciardo was lawful. His Honour did however go on to observe that there was no bar to the proposed plaintiff bringing a further application for a writ of habeas corpus as he had not dealt with the case on its merits and that as presently formulated, the case proposed by him could not possibly succeed.
(c) In considering the current application, the Prothonotary observed that the proposed Summons and proposed documents were formulated in the same way as they were in Dudley and the relief sought is also substantially the same. The Prothonotary also noted that in cases including Censori v Adult Parole Board of Victoria,[3] the Court found that the re-litigation of issues previously determined is an abuse of process.
(d) Moreover, the relief sought in the proposed Summons pursuant to s 21(7) of the Charter is misconceived because it is directed to deprivation of liberty following 'arrest or detention', not imprisonment following conviction, as is asserted in this case.
[2](2011) 33 VR 437, 438.
[3][2015] VSCA 254.
In August 2017, the proposed plaintiff was sentenced in the County Court of Victoria to four and a half years imprisonment in relation to six charges arising from unlawful sexual acts with a child under the age of 16.
On 7 September 2017, the proposed plaintiff filed an application pursuant to rule 57 of the Rules of Court seeking the issuance of a writ of habeas corpus. The proposed plaintiff’s application was accompanied by an Affidavit of approximately 14 pages and schedules of approximately 27 pages outlining a series of complaints arising from the conduct of his criminal trial, his access to legal materials, breaches of the Charter and other matters whilst in custody.
In Dudley, consistent with the approach in Rich,[4] J Forrest J dealt with the application of 7 September 2017 referred to in the last preceding paragraph and rejected the application once satisfied that the proposed plaintiff’s incarceration was lawful and it therefore followed that no writ of habeas corpus could issue. His Honour went on to state, ‘…there is no point in granting such a request as the application as currently conceived cannot possibly succeed’.[5]
[4](2011) 33 VR 437, 438.
[5][2017] VSC 580, [9].
In my view, the content of the proposed documents demonstrates that what the proposed plaintiff seeks to have the Prothonotary seal is misconceived, and would if sealed, be an abuse of process given that it would seek to re-litigate matters already determined and further if sealed would instigate proceedings which had no reasonable prospect of success including for the following reasons.
Justice Forrest concluded in Dudley that the proposed plaintiff’s imprisonment was lawful in the circumstances, rendering it reviewable only through the appellate process, and therefore no writ of habeas corpus could issue.
His Honour referred to the decision in Rich which stated:
Quite simply, the application for habeas corpus is misconceived. It is a principle of very long standing that ‘a writ of habeas corpus does not lie where a person is in execution on a criminal charge after judgment in due course of law’. That this is the established position is confirmed by the most recent (2011) edition of Justice Robert Sharpe’s work, The Law of Habeas Corpus… The learned authors put the position very clearly, ‘The writ of habeas corpus has never been used with effect where convictions or orders of courts of general common law jurisdiction are concerned’.
In Ex parte Williams, Dixon J held that the writ of habeas corpus, ‘cannot be granted when the prisoner is held under an actual order or sentence, unless the Court making the order exceeded its jurisdiction so that the order is a nullity.[6]
[6](2011) 33 VR 437, 438.
Here the proposed plaintiff, seeking the relief earlier described, is lawfully imprisoned by force of an extant Court order. Further, this Court has no jurisdiction or power to review or consider an earlier incarceration order on the merits or otherwise.
Without intending to be exhaustive as to other significant defects in the proposed Originating Process, it is for these reasons that I regard the proposed documents as misconceived and an abuse of process which, if issued, would launch an ill-founded and forlorn proceeding.
Accordingly, I decline to direct the Prothonotary to seal any of the proposed documents as presented by the proposed plaintiff.
I shall make an order declining to direct the Prothonotary to accept the proposed documents, or any of them, for sealing and dismiss the proposed plaintiff’s application.
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