Re Rich
[2011] VSC 144
•12 April 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
IN THE MATTER of rule 27.06(1) and (3) of the Supreme Court (General Civil Procedure) Rules 2005
- and –
IN THE MATTER of an application for a proposed proceeding between:
| HUGO ALISTAIR RICH | as proposed plaintiff |
| - and _ | |
| REGISTRAR, COURT OF APPEAL and | as proposed defendants |
| DEPUTY REGISTRAR, COURT OF APPEAL |
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JUDGE: | MUKHTAR, As J | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | No hearing. Direction given under rule 27.06(3) | |
DATE OF JUDGMENT: | 12 April 2011 | |
CASE MAY BE CITED AS: | Re Rich | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 144 | |
PRACTICE AND PROCEDURE ― Proposed proceeding to restrain judicial registrar and Court officers from certain administrative conduct ― Prothonotary’s unwillingness to issue proceeding without direction of the Court ― Abuse of process ― Decision in Re Klement [2011] VSCA 40 considered ― Prothonotary directed not to issue process ― Rules of Court, rule 27.06(1), (3).
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DIRECTIVE
HIS HONOUR:
The Prothonotary has referred to me, with a request for direction, an originating motion and accompanying summons that has been received for sealing and dating by the Court to commence a proceeding. An originating process is filed when the Prothonotary receives the originating process and seals and dates it. Under rule 27.06(1) the Prothonotary may refuse to seal 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 process in the Court. Sub rule (3) says that the Court may direct the Prothonotary to seal an originating process.
As a matter of practice, the Prothonotary usually seeks a directive from a puisne judge of the Court, usually the judge in the Practice Court. Here, the referral has been brought to the Court as constituted by an Associate Justice who of course may exercise the power of the Court. Perhaps for reasons of expedience in the past the prospect of an appeal de novo from an Associate Justice has made it convenient not to make such referrals. Rather than refer the matter to a puisne judge, I see no reason why I should not consider the question.
As far as I am aware, this rule has always been administered without a hearing, and in Judges’ chambers. The rule does not require a hearing and it is done, as here, as a matter internal to the Court. If the function of the Prothonotary in sealing process were to be characterised as involving, or being akin to, the exercise of statutory power with consequences, then the question would be whether the statutory or administrative framework required me, as in effect standing in his shoes, to hear the lodging party on the question as matter of procedural fairness.
The rule does not strike me as involving an adversarial adjudication, involving curial procedures. The function of the Prothonotary and Registry staff when assessing process is to see whether it complies as a matter of form. Beyond that, a case will qualify as being an abuse of process if, amongst other situations, it is quite clear that the case has no legal foundation and must inevitably fail. But the Prothonotary and his staff are not there to evaluate the sustainability of the claim in concluding whether there is an abuse of process. Clearly that is something the defendant can pursue once served by bringing a strike out application.
Rather as I would construe the rule, and see its implications, the proceeding may be one which the Prothonotary regards as an abuse of process because it has innate features that make it manifestly bad to a degree to constitute an abuse of the Court’s process, and therefore to be disallowed at the issuing stage. That is, the Court will not give its seal to a proceeding that is abusive of the process that the writ or originating motion seeks to engage or activate in the first place.
That is how this matter has been presented to me. I would add that nothing in a recent decision of the Court of Appeal in Re Klement[1] (about which, more later) suggests that a hearing is required before the Judge to whom a matter is referred. And that is how I have proceeded.
[1][2011] VSCA 40 at [4].
The proposed plaintiff is Hugo Alistair Rich. The proposed first defendant is the Registrar of the Court of Appeal. (I think the correct designation is judicial registrar, appointed by the Governor in Council under the Supreme Court Act and assigned duties by the Chief Justice.[2] The judicial registrar in this case is also concurrently the Registrar of the Court of Appeal and Registrar of Criminal Appeals.[3]) The proposed second defendant is the Deputy Registrar of the Court of Appeal. Under s 106 of the Supreme Court Act a deputy registrar is employed under the Public Administration Act to assist in the effective operation of the Court generally.
[2]See s 113C ff and s 113N ff of the Supreme Court Act.
[3]See Practice Note No 1 of 2011.
An affidavit sought to be filed with the originating motion was affirmed by Mr Rich on 21 March 2011. I need not refer to its contents in detail. He states he was convicted of crimes in this Court on 12 June 2009 and was sentenced in November 2009 to life imprisonment on one count and to 20 years imprisonment on another count. The Sentencing Judge directed that he serve the minimum of 30 years before being eligible for parole.
He says that on about 13 November 209 he wrote to the Registrar of Criminal Appeals for the purpose of filing notices of application for leave to appeal against both conviction and sentence. He says he was not represented by any legal practitioner and he did not know whether Victoria Legal Aid would extend their grant of funding.
The affidavit is discursive and refers to correspondence with the previous Prothonotary and also to personnel from Corrections Victoria. He asserts that he is having extreme difficulties with Corrections Victoria “who as a collective, all are engaged in calculated conduct which, inter alia, is designed to both impeded and obstruct the due administration of justice and other factors.”
His grievance seems to be that the “obstructionist conduct” from Corrections Victoria and his endeavours to progress or find out about the progress of matters for Legal Aid funding are affecting his ability to comply with proper appeal processes. He states that he has been corresponding with a Deputy Registrar telling her about the problems he was experiencing and whether “the registry was ever going to do anything about my jailor’s conduct in relation to the previous stated impediments and obstructionism.”
These communications continued until August 2010 when he says he corresponded with Associate Justice Lansdowne, as the Registrar of the Court of Appeal, to ask whether the Registry was going to assist him in formally “addressing and thereafter exorcising the administrative obstructionism being deliberate practised by Corrections Victoria in stopping me with my appeal preparations for this proposed appeal.” There was also correspondence to the President of the Court of Appeal, making a similar complaint.
The affidavit makes two relevant complaints for present purposes. At paragraph 72, it contends that the direction of the Deputy Registrar dated 8 March 2011 obliging Mr Rich to submit a written case statement pursuant to the provisions of the Practice Direction No. 2 of 2011 was unreasonable in every respect because, as I understand the affidavit, the registry has never assisted him to ensure that the impediment and obstructionisms from Corrections Victoria be removed.
Secondly, he contends that “The decision to remove telephone communication to the office of the Registry dated 7 March 2011 is unreasonable in every respect.” Some sense can be made of this by referring to paragraph 4 of the “Statement of Claim” within the originating motion which refers to a letter from the Judicial Registrar of the Court of Appeal saying, amongst other things, “Finally a decision has been taken to communicate with you in writing and the phone number of the Court of Appeal Registry has been removed from the list of those you are permitted to call. You may direct all future correspondence to me and you will receive a written response.”
He contends that telephone access to the office of the registry is “an integral right of all persons seeking to conduct business, and while also attempting the defend fundamental rights, interests in relation to personal liberty, residual liberty, status, preservation of livelihood, reputation and property considerations.” He contends that even though he is a prisoner, he has the same civil rights and privileges as any other citizen means, I take it, the same right of telephone contact as anyone else. He says the refusal of telephone access is discriminatory.
As for the request to file a written case, his originating motion says that the direction for him to submit a written case puts him in “high peril” because the Deputy Registrar should have been aware that he is not represented and he is still waiting for a decision from Victoria Legal Aid to appoint a legal practitioner. He adds that the Deputy Registrar was aware or should have been aware that the plaintiff’s jailor is impeding his ability from issuing primary documents or allowing him resources to prepare court documents and that the registry ought be aware that he has proceedings on foot to prosecute the “underlying intransigence from Corrections Victoria” in refusing him primary documents and facilities and resources that are reasonably required to meet his obligations under the practice directions.
I think the Prothonotary’s inclination to refuse to seal the originating process is soundly based. That is, I think the proceeding if so commenced would be an abuse of process of the Court. Accordingly, for the reasons that follow, I would direct the Prothonotary not to seal the originating motion or receive for filing any of the supporting affidavits.
I think care must be taken before denying anybody the right to commence a proceeding on the ground that it is an abuse of process. That is because ordinarily it would be open for a defendant to seek summary dismissal or a stay of the proceeding, once commenced, on that ground. As was said in R v Smith[4] the very function of the courts is to hear and determine claims, sound and unsound.
[4](1995) 1 VR 10 at 14 (Brooking J)
In Williams v Spautz,[5] the High Court endorsed the principle that every court is in duty bound to protect itself against an abuse of its process. Unless the Court protects its ability to so function, its failure will lead to an erosion of public confidence by reason of concern that the Court’s processes may lend themselves to oppression and injustice. Court processes may be abusive if they are seen to be employed for ulterior purposes or in such a way as to cause improper vexation and oppression. In Walton v Gardiner[6] the High Court also said that proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail. But that is not the only situation, for what constitutes an abuse of process is not restricted to defined and closed categories, and the occasion for the Court to deal with proceedings as being an abuse of process but may be exercised as and when the administration of justice demands: see Jago v District Court (NSW).[7]
[5](1991) 174 CLR 509 at 520-521
[6](1992) 177 CLR 378 at 393,
[7](1989) 168 CLR 23
In this case I can see no legal basis for the claim against the Registrar or the Deputy Registrar. It seems that Mr Rich’s real grievance is against Corrections Victoria. I cannot see any basis, whether as stated or at all, for saying that an injunction should be granted because I cannot see in aid of what legal or equitable right, private or public, it could be arguable that an injunction should be granted. Nor do I see it, in some administrative law context, as being a situation where the Registrar or the Deputy Registrar are failing to perform some duty of a public nature so as to require some form of judicial supervision by this Court over two of its own members in the form of an injunction or relief by way of mandamus.
His complaint against the Judicial Registrar is that the registry will not take his phone calls. But this to my mind is purely an administrative matter concerning the mode of communication and not the deprivation of some legal right in the enjoyment of legal process. Mr Rich is not being impeded in any way nor is there said to be some sort of delay in correspondence. It is purely a question about how things are to be communicated. There is no impairment of legal rights and, as the Registrar has said, any correspondence sent by Mr Rich would receive a response. I can see no basis for the granting of an injunction compelling the Registrar to receive a communication by telephone. Should any of the dealings with registry be thought to somewhat impair his ability to comply with procedural rules of court, then that is a matter for Mr Rich to pursue by way of application within the appeal process itself.
The same can be said about his grievance against the Deputy Registrar. The relevant practice note (No 2 of 2011) requires an applicant to file a written case in support of the application. The Deputy Registrar has done no more than ask Mr Rich to comply with the new rules and the Practice statement. To do so is to not discriminate against him or to subject him to any greater burden than any other appellant. If Mr Rich wishes to be excused in some way from complying with the Practice Note, or to be given an extension of time to enable him to overcome other problems, then that could be the subject of an application to the Court of Appeal in the appeal. Otherwise, the Deputy Registrar is doing no more than following the Practice Note and procedural requirements.
It is for those reasons I regard the originating motion as being an abuse of process. It is misconceived. It is also frivolous and vexatious. It is bound to fail.
The Rules of Court do not prescribe what orders are to be made, I suppose, because as things stand, there is no proceedings under the auspices of which an order is to be made. Despite that, for the purposes of a proper resolution of this matter, I would, by way of adaptation of the Rules, direct the Prothonotary to decline to seal the originating process.
In coming to this decision, I do not overlook the recent decision of the Court of Appeal in Re Klement.[8] In that case, the Prothonotary rejected, with written reasons, an originating motion because the document was illegible to the extent that a defendant could not be expected to respond to its contents, nor could a Court be expected to adjudicate its merits. Another form of originating motion was rejected as not being in logical and coherent form to the extent of making it impossible to ascertain whether there was a genuine claim. A Judge to whom the matter was referred declined under sub rule 3 to direct the Prothonotary to accept the documents for sealing.
[8][2011] VSCA 40
On appeal the judge’s order was set aside and substituted with a direction that the Prothonotary accept the documents for filing. Yet, the Court of Appeal did so saying there was no error by the Prothonotary or the Judge; and indeed the Court acknowledged there was a “perfectly proper basis” for the refusal to accept the documents for sealing. The Court took to my mind an approach of pragmatism to reason that “were the judge’s order to stand, this would be productive of only one thing, that is, the prolongation of the pre-litigation phase” because a refusal to accept the documents would not deter the applicant from pursuing the claim with documents that would be very much in the same defective condition. This would, the Court said, create repetitive problems from a determined applicant who appeared to lack a legally cognisable claim. The better course, it was said, was to expedite the litigation by leaving it to an Associate Justice to decide how to deal with the matter, with the first possibility being a mediation (without pleadings) to enable the applicant to “ventilate his grievances”. Alternatively, it may be decided to dispense with pleadings, let the applicant articulate the matters on which he relies, and fix the matter for further trial.
I trust it will not be taken as mild lesè majeste to say that Klement is an “interesting” decision. But, as the Court said, it was decided in quite exceptional circumstances designed to relieve the (putative) defendant executor in that case from expectable and persistent trouble and delay, so I do not regard it as having any general application or establishing any procedural principle. For my part I presume to say that I see no reason why a proceeding which is an abuse of process because it lacks a legally cognisable claim should be allowed to proceed. If it is an abuse of process, then by hypothesis, why lend the process? To do so seems to me to diverge from the principle in the authorities which pays greater regard to the integrity of the Court’s processes. There will be situations no doubt where the better judgment will be to allow the process to be issued and leave it to the defendant to challenge later.
For those reasons, and adhering to the language of rule 27.06(3), I decline to direct the Prothonotary to seal the originating process as presented by the proposed plaintiff. To put it in positive terms, I direct the Prothonotary under rule 27.06(1) not to seal the documents as lodged.
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