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:

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.

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).

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.

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…

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 Klement (No 2)

Details

AGLC: Re Klement (No 2) [2014] VSC 459
Case: [2014] VSC 459
Decision Date: 22 September 2014

CaseChat Overview and Summary

In the matter of Re Klement (No 2), the applicant, proceeding as an unrepresented litigant, sought direction from the court to compel the Prothonotary to seal a document as originating process in a proceeding against the respondent. The dispute was brought before the Supreme Court of New South Wales. The applicant, dissatisfied with the Prothonotary's refusal to seal the document due to its irregular form, argued that the document should nonetheless be accepted as originating process.

The legal issues before the court were whether the Prothonotary's refusal to seal the document as originating process was justified, and if the court could direct the Prothonotary to accept the document despite its irregularities. The court had to consider the relevant provisions of the Supreme Court (General Civil Procedure) Rules 2005, particularly rule 27.06, which deals with the sealing of originating process. The court also had to balance the rights of unrepresented litigants against the need to maintain procedural integrity.

In its decision, the court held that the Prothonotary's refusal to seal the document was justified as the document was irregular in form. The court found that the irregularities were significant and could not be overlooked, particularly given the importance of ensuring that all documents filed in court comply with procedural rules. The court declined to give the direction sought by the applicant, as it considered that such a direction would undermine the procedural rules designed to ensure fairness and efficiency in court proceedings. The court emphasised that while it is sympathetic to unrepresented litigants, it cannot allow procedural rules to be bypassed, as doing so would compromise the integrity of the judicial process.

No direction was given to the Prothonotary to seal the document. The application was dismissed.

Orders