Re Finocchiaro - [2023] NTSC 23

CITATION:Re Finocchiaro; Ex parte The Proper Officer [2023] NTSC 23
PARTIES:Re FINOCCHIARO, Salvatore
Ex Parte THE PROPER OFFICER

TITLE OF COURT: SUPREME COURT OF THE
NORTHERN TERRITORY

JURISDICTION:  SUPREME COURT exercising Territory jurisdiction
FILE NO:2023-00541-SC
DELIVERED:  8 March 2023
HEARING DATE:                   On the papers
JUDGMENT OF:  Huntingford A/AsJ

CATCHWORDS:
PRACTICE AND PROCEDURE – refusal by Proper Officer to seal originating process – whether issuing proceeding would be an abuse of process – refusal to direct Proper Officer to seal - proceedings without merit and bound to fail
Registration of Births, Deaths and Marriages Ordinance 1962 (NT)
Supreme Court Rules 1987 (NT) 0r 27.06
Fingleton v The Queen (2005) 227 CLR 166
Mark Lawlor v Ruby Rose Langenheim [2022] VSC 591
Staats v United States of America (1992) 66 ALJR 793
Berwick Ltd v Deputy Commissioner of Taxation (1976) 8 ALR 580
REPRESENTATION:
Counsel:
Applicant:Self-represented
Judgment category classification:    B
Judgment ID Number:  Hun2303
Number of pages:  7

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
Re Finocchiaro; Ex parte The Proper Officer [2023] NTSC 23

No. 2023-00541-SC

BETWEEN:

SALVATORE FINOCCHIARO
Applicant

AND:

EX PARTE THE PROPER OFFICER

CORAM: HUNTINGFORD A/AsJ
REASONS FOR DECISION
(Delivered 8 March 2023)
Introduction

Mr Salvatore Finocchiaro seeks a direction pursuant to r 27.06(3) of the Supreme Court Rules 1987 (NT) that the Proper Officer,[1] in this case the Civil Registry Manager, seal two writs sought to be issued by him. The Proper Officer refused to seal each originating process, in accordance with her authority in r 27.06(1), on the ground that she considered that the contents of the documents showed that, if issued, each proceeding would be an abuse of the process of the Court.
Rule 27.01 is in these terms:
27.06Proper officer refusing to seal or accept document
The Proper Officer may refuse to seal an originating process without the direction of the Court where he 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 the process of the Court.
Where a document for use in the Court is not prepared in accordance with this Chapter or an order of the Court:
(a) the Proper Officer may refuse to accept it for filing without the direction of the Court; or
(b) the Court may order that the party responsible shall not be entitled to rely on it in any manner in the proceeding until a document which is duly prepared is made available.
(3)The Court may direct the Proper Officer to seal an originating process or accept a document for filing.
By email dated 8 February 2023, Mr Finocchiaro provided written submissions as to why his writs should be issued. His previous letters to the Registrar, dated 19 December 2022 and 16 January 2023, emails of 1, 2 and 3 February 2023, together with a copy of his birth certificate, and copy of a letter dated 10 November 2022 from…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Finocchiaro

Details

AGLC: Re Finocchiaro [2023] NTSC 23
Case: [2023] NTSC 23
Decision Date: 8 March 2023

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, Mr Salvatore Finocchiaro sought an order directing the Proper Officer to seal two writs he sought to issue. The writs were intended to be claims against a Queensland judge and the Commonwealth of Australia, respectively. The Proper Officer refused to seal the writs, finding that if issued, the proceedings would be an abuse of the court's process. Finocchiaro sought the court's direction to compel the sealing of the writs.

The legal issue was whether the court should exercise its discretion to direct the Proper Officer to seal the writs, overriding her refusal. The court considered whether the proposed proceedings had any prospect of success or would otherwise constitute an abuse of process. The court noted that it has a duty to prevent litigation without merit to protect the administration of justice. However, the exercise of the power to refuse sealing must be done carefully and only in a clear case.

The court found that neither writ had any prospect of success. The claim against the Queensland judge was hopeless as judges are immune from civil liability for actions taken in the exercise of their jurisdiction. The claim against the Commonwealth was also without merit, as the use of capital letters on a birth certificate could not found a cause of action. The court agreed with the Proper Officer that sealing the writs would be an abuse of process and refused to direct the sealing of the writs.

Orders