Re Klement (No 2)

[2014] VSC 459

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
PRACTICE COURT

IN THE MATTER of an application by Jiri Klement for a direction under Rule 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2005

JIRI KLEMENT	Proposed Plaintiff
v
PETER JAMES RANDLES	Proposed Defendant

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	Not applicable.  Determined on the papers.
DATE OF JUDGMENT:	22 September 2014
CASE MAY BE CITED AS:	Re Klement (No 2)
MEDIUM NEUTRAL CITATION:	[2014] VSC 459

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PRACTICE AND PROCEDURE – Unrepresented litigant – Refusal by Prothonotary to seal document as originating process – Proposed plaintiff seeking direction to Prothonotary to accept document – Documents irregular in form – Application refused – No direction given to Prothonotary to seal document – Supreme Court (General Civil Procedure) Rules 2005, r 27.06.

HIS HONOUR:

1. On 21 August 2014, the proposed plaintiff, Jiri Klement, sought to file with the Prothonotary two mainly handwritten documents: a Notice of Appeal against an order of an Associate Judge and an Originating Motion, which was supplemented by an additional sheet of mainly handwritten notes. 

1. On the same day, the Prothonotary refused to seal or accept the documents from Mr Klement for filing on the grounds that: 

(a) in contravention of r 27.06(1) of the Supreme Court (General Civil Procedure) Rules 2005, were the Originating Motion document to be sealed, the proceeding so commenced would be an abuse of the process of the Court as, insofar as its contents are decipherable, it seeks to re-agitate matters which have already been determined by the Court;[1] and 

[1]In the Matter of Jiri Klement [2013] VSC 683 (Cavanough J); Re Klement [2014] VSC 364 (Almond J).

(b)      the documents are not prepared in accordance with the Rules given that: 

(i) they do not comply with r 27.03(3), which requires that documents ‘shall be printed or typewritten and shall be clear, sharp, legible and permanent’; and

(ii)      they fail to include Mr Klement’s telephone number in the endorsement on the first page of each document, in breach of rr 27.03(8) and 27.03(12). 

1. Mr Klement has sought a direction from the Court under r 27.06(3) of the Rules that the Prothonotary accept the documents for filing in circumstances where the Prothonotary has refused to do so.

1. In considering this matter, it has come to my attention that Almond J very recently gave judgment in almost identical circumstances involving Mr Klement in Re Klement.[2]  His Honour stated:

[3]It is plain that the document is irregular in form. It fails to comply with r 27.03(3) of the Supreme Court (General Civil Procedure) Rules 2005, which provides that the text shall be ‘clear, sharp, legible and permanent’.  The text is neither clear nor sharp and is barely legible. 

[4]The document is also difficult to understand. It contains commentary or submissions, which are wholly inappropriate for inclusion in an originating motion; There is no suggestion that the nature of the document renders compliance with the Rules impracticable (r 27.01 of Supreme Court (General Civil Procedure) Rules 2005).

[5]Mr Klement has a history of filing such documents in this Court. In particular I refer to Re Klement[3] and Re Klement.[4]  This causes unnecessary inconvenience to the Prothonotary and Registry staff.

[6]Although it is difficult to clearly discern the relief sought, the proposed claim appears to be the same or a variant of a claim previously made unsuccessfully by Mr Klement to an entitlement to provision of capital out of his late mother’s estate sufficient to enable the construction of a house on vacant land in Kalorama.  Accordingly, the proposed claim may well be an abuse of process.  In the circumstances, precision in identifying the nature of any claim and the relief or remedy sought will be especially important (r 5.05).  Granting Mr Klement an indulgence by relieving him from compliance with the Rules would not achieve that end.  Allowing a document in this form to be sealed as an originating process would also be oppressive to the proposed defendant, Mr Randles.

[7]I decline to direct the Prothonotary to seal the document as an originating process or to accept the document for filing.

[2][2014] VSC 364.

[3][2011] VSCA 40 (Maxwell P and Buchanan JA).

[4][2013] VSC 683, especially [35] (Cavanough J).

1. I am satisfied that his Honour’s reasons apply equally in the circumstances of this proceeding.  I therefore refuse to direct the Prothonotary to seal, or accept for filing, the documents. 

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