Re Tomasevic
[2016] VSC 372
•29 June 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
In a proposed proceeding
IN THE MATTER of an application by Milan Tomasevic for a direction under r 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2015.
BETWEEN
MILAN TOMASEVIC
Proposed plaintiff
and
DEANNE TOVEY & ORS
Proposed defendants
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JUDGE: | T FORREST J |
WHERE HELD: | Melbourne |
DATE OF RULING: | 29 June 2016 |
CASE MAY BE CITED AS: | Re Tomasevic |
MEDIUM NEUTRAL CITATION: | [2016] VSC 372 |
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PRACTICE AND PROCEDURE – Unrepresented litigant – Refusal by Prothonotary to seal a document as originating process – Proposed plaintiff seeking direction to Prothonotary to seal – Application for a direction under r 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2015.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance (the application being referred on the papers by the Prothonotary) | |
HIS HONOUR:
On 7 June 2016, the Prothonotary of this Court (via a Deputy Prothonotary) refused to seal or to accept for filing an originating motion and summons dated 7 June 2016. The applicant and proposed plaintiff, Milan Tomasevic (‘Applicant’), now seeks a judicial direction to the Prothonotary pursuant to r 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) that the Prothonotary accept these documents and seal the originating process. The Applicant’s proposed originating motion seeks review of a decision of a judge of the County Court to grant an intervention order against the Applicant.
Rule 27.06(1) 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 show that, were the document to be sealed, the proceeding so commenced would be irregular or an abuse of process. In this case, the Prothonotary outlined specifically that:
(i) for the most part, the contents of the Originating Motion is irregular as it includes substantial material in the nature of evidence, both within the document itself and as exhibits;
(ii) part of the contents of the Originating Motion would amount to an abuse of process in that it also seeks relief pursuant to legislation which cannot apply, in particular at paragraph a) it refers to “Remedies under section 16 of the ADjR Act” and sections 5 and 6 of the “Administrative decision and conduct (Judicial Review) Act 1977”. Presuming those are references to the to the Administrative Decisions (Judicial Review) Act 1977, those sections relate to powers of the Federal and Federal Circuit Courts on review, which cannot be made to this Court; and
(iii) parts of the grounds of appeal listed in the Originating Motion, particularly those numbered 3) and 4) amount to an abuse of process in that they lack specificity and are not grounds available on a judicial review application.
I agree with the Deputy Prothonotary’s view that to seal this originating process and accept these documents for filing would constitute an abuse of process and that any proceeding commenced on the documents’ basis would be irregular.
The Applicant, it appears, seeks remedies pursuant to an act over which this Court has no jurisdiction. So much is outlined by the Prothonotary. Even if it is accepted that similar remedies may, in substance, be awarded on a successful review pursuant to O. 56 of the Supreme Court (General Civil Procedure) Rules 2015, the grounds listed in the Applicant’s proposed originating motion do not amount to the sorts of error reviewable under that provision.
A review pursuant to O. 56 is limited to specific grounds. In such a proceeding, a plaintiff seeks to invoke the Court’s supervisory jurisdiction. The review is not an appellate procedure ‘enabling either a general review of the order or decision of the inferior court…or a substitute of the order or decision which the superior court thinks should have been made.’[1] A successful review ‘merely establishes the quashing of the impugned order or decision upon one or more of a number of distinct, established grounds, most importantly jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and “error of law on the face of the record”.’[2]
[1]Craig v South Australia (1995) 184 CLR 163, 175.
[2]Ibid 175 - 176.
The Applicant’s originating process outlines four grounds. The first alleges bias on the part of the County Court judge, on the basis that the judge had been ‘helping the other party’ at the hearing of the matter. The example provided is, in effect, that the judge told a witness that repeating second hand information heard from another person constituted hearsay. On its face, this appears to be a correct statement of the law. I see no way in which this ground is an appropriate basis for an O. 56 review.
The Applicant’s second ground is that the judge failed to direct the attention of a self-represented person to the salient points of law and procedure in a fair way. The presiding judge has no obligation to inform a party of the law. This similarly cannot constitute a ground of review pursuant to O. 56.
The Applicant’s third ground is that an adjournment at the County Court caused a delay which meant that that the applicant could not live in his home for the 6 weeks preceding 30 May 2016. It seems the that the substance of this complaint was resolved by the time the Applicant attempted to file the proposed originating motion on 7 June 2016. Even if a reviewable ground could be alleged, there is no appropriate remedy available to the applicant pursuant to O. 56.
Finally, the Applicant’s fourth ground alleges that comments of the County Court judge gave the Applicant the impression that the judge was racist. Again, unless this impression can be linked to an aspect of the Judge’s reasoning or conduct so as to constitute one or more of the grounds described in [5] above, it cannot form the basis of a review pursuant to O. 56. There is nothing in the Applicant’s proposed originating motion that supports such a connection.
To direct the Prothonotary to seal the proposed originating process would result in a proceeding that would be irregular and would be an abuse of process. I decline to make that direction.
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