Rich v The Secretary, Department of Justice (No 2)

[2011] VSC 174

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2010 93

BETWEEN

HUGO ALISTAIR RICH	Plaintiff
and
THE SECRETARY, DEPARTMENT OF JUSTICE & ORS	Defendants

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 April 2011
DATE OF RULING:	3 May 2011
CASE MAY BE CITED AS:	Rich v The Secretary, Department of Justice & Ors (No 2)
MEDIUM NEUTRAL CITATION:	[2011] VSC 174

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PRACTICE AND PROCEDURE – Strike out – Self-executing order – Whether order complied with – Compliance sufficient.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr P Hanks QC and Mr T Mitchell	Sean K Morrison Legal Services Corrections Victoria

HIS HONOUR:

1. On 31 August 2010 Bell J made orders staying this proceeding until 1 November 2010, giving the plaintiff leave to file and serve an amended points of claim by 1 November 2010 having certain specified characteristics, and ordering that if he failed to do so then the originating motion was thereby struck out.

1. The matter was listed for trial before me on Wednesday 13 April 2011.  Shortly prior to the trial date, the defendants notified Mr Rich that they contended that the originating motion had already been struck out by reason of a failure to comply with Bell J’s order.  The basis for this submission was that, whilst a document had been produced which purported to comply with the order, it did not have the specified characteristics.

1. The characteristics which Bell J specified were that the amended points of claim should set out succinctly:

•Each decision or conduct being challenged.

•The person alleged to have made that decision or engaged in that conduct.

•The legal and factual basis of the challenge in respect of the specified decision or conduct (as to each relevant defendant), including the grounds for alleging the decision or conduct was unlawful.

•The relief sought in respect of each decision or conduct (as to each defendant), being relief in the nature of judicial review flowing from the grounds said to be established.

1. Bell J published detailed reasons for the orders which he made on 31 August 2010.[1]  The application he was then hearing was a strike out application under Rules 23.01 and 23.03.  Argument had proceeded by reference to a document entitled “Originating Motion Between Parties” dated 22 April 2010 which had been handed up to the Court in the course of a hearing on 21 July 2010.

   [1][2010] VSC 390.

1. Bell J considered a statement of claim annexed to that document and addressed most of the paragraphs of that statement of claim.  The deficiencies which he catalogued were many.  In substance, he concluded that the proceeding could not continue on the basis of that document because, upon analysis, it sought a merits review of administrative decisions and sought, in effect, to require the Court to take over the prison management of the plaintiff.  In addition to that pervasive deficiency, there were other serious deficiencies identified by Bell J, being a failure to link the named defendants to any particular claim; a failure to specify the decisions and conduct complained of; a failure to link a legal and factual basis for relief to any particular decision or conduct; and a failure to connect any relief claimed to any particular defendant, to any particular decision or conduct, or to any particular legal ground.

1. The effect of Bell J’s orders, as I apprehend it, was to bring an end to the proceeding unless the plaintiff was to file amended points of claim addressing these deficiencies satisfactorily by the specified date. 

1. The plaintiff is a prisoner and he appears for himself.

1. A document which purports to comply with Bell J’s order is on the Court file.  It seems that that document was forwarded to the solicitor for the defendants under cover of a letter dated 1 November 2010.  Mr Rich told me that that document had also been forwarded to the Court.  The copy on the file had been forwarded to the Court by the solicitor for the defendants.  No point was taken as to timing, and argument before me proceeded on the basis that Mr Rich did file a document purportedly in accordance with Bell J’s order by the specified date.  The issue was whether that document met the criteria Bell J had specified. 

1. The document which purportedly complies with Bell J’s order begins with a preamble in which Mr Rich states that he is not a lawyer and that he has had grave difficulty understanding what was expected of him.  The paragraphs in the document are not numbered but they have been placed under headings. 

1. The first heading is “The Requests – The Decision being Challenged”.  Under this heading Mr Rich sets out 16 specific requests he has made through what he refers to as “the prison’s Request and Complaint procedure”.  He gives the date and subject matter of each request.  He says that each request was refused. 

1. The decisions specified include decisions made on two of five dates which had been referred to in the statement of claim dealt with by Bell J.  The three other dates of decisions referred to in that document do not now appear.  At least two of the decisions now specified must have been made after the date of filing of the originating motion by which this proceeding was commenced.  This in itself is not a fatal defect:  see Rule 36.01(3). 

1. Under a heading “The Complaint – The Conduct Being Challenged”, Mr Rich sets out his complaints.  The complaints are not in a form which would be acceptable from an Australian lawyer, but, with the exception of some general paragraphs which clearly go too far and which, in my view, must be read down by reference to the specific paragraphs, the complaint is that the refusals he has specified constitute an illegal obstruction to his capacity to conduct pending Court proceedings in which he is representing himself. 

1. Under the heading “The Policy Documents”, Mr Rich asserts that a number of specified prison instructions are “ultra vires”.  Under the heading “The Person who made the Decision”, Mr Rich says he does not know who made any of the decisions as prisoners are only ever told “It was the Governor”. 

1. Under the heading “The Legal and Factual Basis of the Challenge”, Mr Rich states that the best he can do is to say that the prison does not have the underlying power to do what they have been doing. 

1. Under the heading “The Relief by way of Judicial Review which is being Sought against the Person etc”, Mr Rich says he is unable to specify who the actual decision maker was which is why he has joined as a defendant the various heads of each relevant department of Corrections Victoria.

1. The document sets out a number of orders which Mr Rich seeks.  Again, whilst the form of the claimed relief would not be acceptable in a document drawn by an Australian lawyer, it is fairly clear, in lay terms, given the specific decisions which he has catalogued, what Mr Rich is seeking . 

1. The document concludes:

“I also seek to obtain the orders set out in the Writ document dated 5 August 2010 and handed to his Honour Mr Justice Bell on 31 August 2010.

I also rely on all of the documents that have already been filed in this matter.”

1. In the submissions made to me the defendants conceded that the document filed did identify the 16 allegedly refused requests in a way which met that aspect of Bell J’s order.  It was submitted that otherwise the document did not meet the criteria specified.  It was submitted that there was still no attempt to identify the relevant decision maker and it was pointed out that there is no prison “Governor” named as a defendant.  It was submitted that there was a failure to identify a factual and legal basis for the challenge and that there was a failure to specify the nexus between the relief claimed and the decisions complained of. 

1. Much of the submissions made on behalf of the defendants, both in writing and orally, constituted a repetition of the submissions made to Bell J concerning the statement of claim with which he was concerned on the basis that the document now relied upon incorporates it by reference in the passage quoted above.

1. My conclusion is that the document now relied upon constitutes sufficient compliance with Bell J’s order and I accordingly conclude that the proceeding has not been struck out by virtue of that self-executing order. 

1. The document now relied upon does sufficiently catalogue each decision complained of.

1. Whilst it does not specify the decision maker, the document explains why the decision maker is not specified.  In the circumstances, it seems to me that that explanation, given the specificity of what is now alleged in relation to the particular decisions, constitutes sufficient compliance with that aspect of Bell J’s order.  It may be that there is some deficiency in the parties but I am not prepared to conclude that that deficiency is such as to constitute non-compliance with the order. 

1. There is no doubt that criticisms could still be made of the attempt to specify a legal and factual basis for the claims and for the relief claimed but, given Mr Rich is a prisoner and is appearing for himself, I consider that what he has done does constitute sufficient compliance.

1. I will not, however, permit the matter to proceed on the basis of the incorporation by reference in the passage which I have quoted above.

1. The reference to a “Writ” which was handed to Bell J on 31 August 2010 is a reference to a document which is on the file upon which there is a note by Bell J recording that Mr Rich had handed it up on 31 August 2010.  The relief set out in that “Writ” contains deficiencies which were addressed by Bell J in his reasons of 31 August 2010 in relation to the statement of claim on the originating motion.

1. The attempt to also incorporate all other previous documents filed, which would include the very document dealt with by Bell J, similarly cannot be permitted. 

1. Subject to any further submissions that might be made, I propose to strike out the last two sentences on the eighth page of the document headed “Amended Points of Claim”.  Otherwise, I rule that this proceeding has not been struck out by virtue of the operation of Bell J’s self-executing order made 31 August 2010. 

1. I observe that this particular argument is a good illustration of the problems which arise with self-executing orders in a situation of this kind.  In this respect I refer to the observations of Barwick CJ in Turner v Bulletin Newspaper Company Pty Ltd.[2]

   [2](1974) 31 CLR 69 at 74.