Rich v Olzak
[2000] VSC 191
•19 May 2000
| SUPREME COURT OF VICTORIA | |
| PRACTICE COURT | Not Restricted |
No. 7850 of 1999
| HUGO ALISTAIR RICH | Plaintiff |
| v. | |
| PETER OLZAK AND OTHERS | Defendants |
---
JUDGE: | BEACH, J. | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 10 MAY 2000 | |
DATE OF JUDGMENT: | 19 MAY 2000 | |
CASE MAY BE CITED AS: | RICH v. OLZAK & ORS. | |
MEDIUM NEUTRAL CITATION: | [2000] VSC 191 | |
---
CATCHWORDS: Criminal law – Obligation imposed by Statute – Mode of enforcement specified by Statute – Jurisdiction of Supreme Court – Crimes Act 1914 (C'th), ss.85ZU, 85ZZA, 85ZZC, 85ZZD, 85ZZF.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the First and Fourth Defendants | Ms. C. Kenny | Arthur Robinson & Hedderwicks |
| For the Second and Third Defendants | Ms. G.L. Schoff | Corrs Chambers Westgarth |
HIS HONOUR:
I have before me two summonses filed in the Court by the defendants to the proceeding whereby the defendants seek orders either setting aside the plaintiff's writ, staying the proceeding, or striking out the plaintiff's statement of claim.
I also have before me a summons filed on behalf of the plaintiff whereby the plaintiff seeks leave to amend his statement of claim and to add a further party to the proceeding.
I shall deal first with the defendants' applications.
The plaintiff, who is acting on his own behalf filed his writ in the Court on 9 December last.
The indorsement on his writ which is comparatively brief reads:
"The Plaintiff Claims: (O.5 r.04(2)(b))
1.An article ('the article') appeared in the Sunday Herald Sun newspaper, a generally available publication, on page 6 on 14 November 1999;
2.The article disclosed personal information about me and it contained statements about me which are untrue;
3.The article was not fair and it was not accurate when it reported I had 'served a five year sentence for importing heroin';
4.Pursuant to Section 85ZU(a) of the Crimes Act 1914 I am entitled to state publicly that I have never been charged with, or convicted of, or served a sentence for, 'importing heroin' as was stated in the article;
5.The article disclosed information in contravention of a law of the Commonwealth, namely Section 85ZU(b)(i) of the Crimes Act 1914;
6.The article misrepresented facts so as to cause me emotional and physical harm;
7.The article was, by causing me emotional and physical harm, part of an ongoing campaign by the Defendants to not only prejudice me but to frustrate my common law right of access to the Courts;
8.Alan Howe acted in an unlawful and reckless manner, and with disregard for my wellbeing when allowing the publication of an unfair and inaccurate article in contravention of the law;
9.Peter Olzak acted in an unlawful and reckless manner, and with disregard for my wellbeing when he allowed an employee, Peter Dinham, to participate in the publication of the article and in so doing make false allegations and disclose personal information about me;
10.Peter Olzak acted in an unlawful and reckless manner, and with disregard for my wellbeing when he did not responsibly restrain an employee, named in the article as a 'senior prison source', from participating in the publication of the article and in so doing make false allegations and disclose personal information about me; and
11.Peter Olzak acted in an unlawful manner, and with disregard for my wellbeing when he did not responsibly restrain an employee, unknown to me at this time, who on 15 November 1999, caused to come into my possession a copy of the article which racially vilified me by the alteration of the photograph in the article to make me appear like Adolf Hitler;
12.I have suffered emotional pain and anguish as a direct result of the Defendants' actions.
Relief and Remedy: (O.5 r.04(2)(b))
1.A factual determination from the Court that the Defendants have acted in the manner claimed above;
2.An order from the Court restraining the Defendants from so acting in the future; and
3. An order for unspecified damages from the Defendants."
The first contention I propose to deal with is the defendants' contention that the plaintiff's claim based upon a contravention of s.85ZU(b)(i) of the Crimes Act 1914 (C'th) (the Act) does not disclose a cause of action or is otherwise frivolous, vexatious and scandalous; alternatively that the Court lacks jurisdiction to hear such a complaint.
The argument that the Court lacks jurisdiction to hear the complaint is based on the submission that the only course of action available to a person complaining of a breach of s.85ZU of the Act is to make a complaint to the Privacy Commissioner (the Commissioner) pursuant to s.85ZZA of the Act.
It is necessary therefore to have regard to those sections and any other section of the Act bearing upon the issue.
Section 85ZU reads:
"85ZU Effect of quashed convictions
Despite any other Commonwealth law or any State law or Territory law, where, under section 85ZT, it is lawful for a person not to disclose, in particular circumstances, or for a particular purpose, the fact that he or she was charged with, or convicted of, an offence:
(a)it is lawful for the person to claim, in those circumstances, or for that purpose, on oath or otherwise, that he or she was not charged with, or convicted of, the offence; and
(b)anyone else who knows, or could reasonably be expected to know, that section 85ZT applies to the person in relation to the offence shall not:
(i)without the person's consent, disclose the fact that the person was charged with, or convicted of, the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful for the first-mentioned person not to disclose it to that other person or that authority; or
(ii)in those circumstances, or for that purpose, take account of the fact that the person was charged with, or convicted of, the offence."
Section 85ZZA reads:
"85ZZA Complaints to the Privacy Commissioner
(1)A person may complain to the Privacy Commissioner about an act or practice of another person or of a Commonwealth authority or State authority that may be a breach of Division 2 or 3.
(2) A complaint shall be in writing.
(3)It is the duty of members of the staff of the Human Rights and Equal Opportunity Commission to give appropriate help to a person who wishes to make a complaint and wants help to formulate the complaint.
(4)The complaint shall specify the respondent to the complaint."
As s.85ZU is contained in Division 2 it is clear that the Commissioner has power to receive a complaint of the nature of the complaint made by the plaintiff.
Section 85ZZC provides that the Commissioner shall consider the complaint and shall investigate the act or practice complained of.
Section 85ZZD deals with determinations of the Commissioner. The section reads:
"85ZZD Determinations of Privacy Commissioner
(1) After investigating a complaint, the Commissioner may:
(a) make a determination dismissing the complaint; or
(b)find the complaint substantiated and make a determination that includes one or more of the following:
(i)a declaration that the authority or person about whom the complaint was made has engaged in conduct unlawful under this Act and should not repeat or continue that conduct;
(ii)a declaration that the respondent should do any reasonable act or carry out any reasonable course of conduct to redress any loss or damage suffered by the complainant;
(iii)a declaration that the respondent should promote the complainant;
(iv)a declaration that the complainant is entitled to a specified amount by way of compensation for any loss or damage suffered because of the act or practice about which the complaint was made;
(vi)a declaration that the termination of a contract or agreement should be varied to redress any loss or damage suffered by the complainant;
(vii)a declaration that it would be inappropriate for any further action to be taken in the matter.
(2)The Privacy Commissioner may require one or both parties to a complaint to attend such counselling as is specified by the Commissioner with a view to settling the matter to which the complaint relates.
(3)When making a determination, the Privacy Commissioner shall state any findings of fact upon which the determination is based.
(4)When making a determination, the Privacy Commissioner may declare that the complainant is entitled to a specified amount to reimburse the complainant for expenses reasonably incurred in connection with the making of the complaint and the investigation of the complaint.
(5)In paragraph (1)(b):
damage includes humiliation suffered by the complainant or injury to his or her feelings."
Finally s.85ZZF gives the Commissioner or the complainant the right to apply to the Federal Court for an order to enforce a determination under paragraph 85ZZD(1)(b) or sub-section 85ZZD(4).
The contention of counsel for the defendants is that the Act establishes a scheme for the making, investigation and determination of complainants with respect to breaches of (inter alia) s.85ZU(b)(i) of the Act and that that remedy is exclusive of any other remedy.
The principal authority relied upon by counsel for the defendants in that regard is the decision of the High Court in Josephson v. Walker (1914) 18 C.L.R. 691.
That was a case in which the Court was required to consider the provisions of s.49 of the Industrial Arbitration Act 1912 (N.S.W.) The section as far as is relevant provided:
"(1)Where an employer employs any person to do any work for which the price or rate has been fixed by an award (of the Court of Industrial Arbitration) '… he shall be liable to pay in full in money to such person and without any deduction the price or rate so fixed.
(2)Such person may, within six months after such money has become due, apply in the manner prescribed to the registrar or to an industrial magistrate for an order directing the employer to pay the full amount of any balance due in respect of such price or rate. Such order may be so made notwithstanding any smaller payment or any express or implied agreement to the contrary. The registrar or magistrate may make any order he thinks just, and may award costs to either party, and assess the amount of such costs.
(3)Such person may, within the said period of six months, in lieu of applying for an order under the last preceding sub-section, sue for any balance due as aforesaid in any District Court or Court of Petty Sessions: Provided that any person feeling himself aggrieved by a judgment or order of such Court given or made under this sub-section may appeal therefrom to the Court of Industrial Arbitration as prescribed'."
The Court held that the mode specified in s.49 of enforcing the obligation imposed upon an employer by the section was exclusive and an action by an employee to recover from an employer the difference between the wages actually paid in accordance with the agreement between them and those payable under an award did not lie in the Supreme Court. At p.695 Griffith,C.J. said:
"The ground of the demurrer is substantially that an action will not lie in the Supreme Court, that the obligation sought to be enforced is an obligation created by Statute, and that the general rule is that where a Statute creates a new obligation and provides a special mode of enforcing it, no other Court has jurisdiction to enforce that obligation. The case generally referred to to establish that rule is Pasmore v. Oswald-twistle Urban Council (1898) AC 387 at p.394. I quote from the speech of the Earl of Halsbury L.C.: 'The principle that where a specific remedy is given by a Statute, it thereby deprives the person who insists upon a remedy of any other form of remedy than that given by the Statute, is one which is very familiar and which runs through the law. I think Lord Tenterden accurately states that principle in the case of Doe v. Bridges 1 B.&Ad. 847 at p.859. He says: 'where an Act creates an obligation and enforces the performance in a specified manner, we take it to be a general rule that performance cannot be enforced in any other manner.' The words which the learned Judge, Lord Tenterden, uses there appear to be strictly applicable to this case. The obligation which is created by this Statute is an obligation which is created by the Statute and by the Statute alone. It is nothing to the purpose to say that there were other Statutes which created similar obligations, because all those Statutes are repealed; you must take your stand upon the Statute in question, and the Statute which creates the obligation is the Statue to which one must look to see if there is a specific remedy contained in it. There is a specified remedy contained in it, which is an application to the proper Government department'."
His Honour then considered the provisions of s.49 and at p.697 continued:
"The effect of these provisions is that every case may come in one way or another before the Court of Industrial Arbitration, which is a Court from which no appeal lies, and which cannot be controlled by any other Court. Under those circumstances I think that the general rule applies. A new obligation is created and a specific mode of enforcing it is given. That mode, according to the general rule, is exclusive of any other mode of enforcing it. That is sufficient to dispose of this case."
At p.701 Isaacs, J. said:
"Prima facie, where the same Statute creates a new right and specifies the remedy, that remedy is exclusive. The natural presumption to begin with is that Parliament in creating the novel right attaches to it the particular mode of enforcement as part of its statutory scheme. To that extent the enactment is a code."
And at p.703 Powers, J. said:
"I agree that in this case, as the obligation was created by the Statute and a specific and sufficient mode of enforcing it has been provided by that Statute, and there is not anything in the Act to show that it was not intended to be exclusive, the obligation can only be enforced in the mode provided by the Statute."
See also Northwind Pty. Ltd. v. Proprietors–Strata Plan 31431 (1981) 2 N.S.W.L.R. 809.
In my opinion there is no basis in this case for departing from the rule as stated in Josephson and the cases there referred to. The obligation imposed upon a person not to disclose to any other person the fact that some third person was charged with and convicted of an offence where that conviction was subsequently quashed as in the case of the plaintiff, was created by s.85ZU and a specific and sufficient mode of enforcing it has been provided by s.85ZZA and the other sections in the Act to which I have referred.
In that situation I consider that that remedy is exclusive of any other remedy and that this Court has no jurisdiction to entertain the plaintiff's claim.
I am fortified in arriving at the view I have in the matter by the following statement made by the Attorney-General during the course of his second reading speech in respect of the Crimes Legislative Amending Bill 1989 that being the Bill which introduced the sections into the Crimes Act.
"Rather than create a range of offences to enforce the scheme the Privacy Commissioner will be given conciliation and civil remedies powers similar to those conferred by the Privacy Act, to resolve breaches of the legislation."
See Hansard – House of Representatives 11 May 1989 at p.2543.
The plaintiff argued that if that was the conclusion I arrived at in the matter I should cross-vest the proceeding to the Federal Court.
In my opinion there is no point in even contemplating such a course. If my opinion that this Court has no jurisdiction to entertain the plaintiff's claim is correct, and that the only redress available to the plaintiff is to make a complaint to the Commissioner, then it follows that the Federal Court too has no jurisdiction to entertain the plaintiff's complaint.
The conclusion I have arrived at is sufficient to dispose of the plaintiff's proceeding.
Had I taken a different view of the matter I would nevertheless have struck out the plaintiff's indorsement on the ground that it did not comply with the provisions of Rule 5.04(2). The defects in that regard are spelled out in paragraph 9 of counsel for the first and fourth defendants' written outline of submission, a copy of which was handed to the plaintiff at the commencement of the hearing of the application. It is unnecessary to recite them in my reasons for judgment.
As to the plaintiff's application to join another party to the proceeding, that also will be refused. The claim against the proposed fifth defendant is in no different position from the claim against the other defendants.
The plaintiff's proceeding and his application will be dismissed. The costs of the proceeding and this application are reserved.
It is now convenient to deal with a matter which has no bearing upon the present proceeding but which was adverted to by the plaintiff before he left the Court.
The plaintiff enquired if I had considered the content of an originating motion he had forwarded to the Prothonotary for filing in the Court and which the Prothonotary had referred to me. I informed the plaintiff I had quickly looked at the originating motion but would examine it more carefully in the next day or so. I have now done that.
By his originating motion the plaintiff seeks to have a Judge of the Court re-open three decisions of the Court of Appeal in matters No. 265 of 1995, No. 64 of 1996 and No. 6643 of 1996.
In my opinion a single Judge of this Court has no power to do such a thing and in that situation the Prothonotary should not accept the originating motion but should return it to the plaintiff.
In a submission received by me from the plaintiff after I had prepared these reasons for judgment the plaintiff has stated that "I accept the point put to the Court by the defendants" and asks that I adjourn the defendants' applications sine die while he further pursues his complaint to the Privacy Commissioner.
I see no justification for adopting such a course.
---
2
0
0