Rouvinetis v Grant

[2001] NSWSC 513

CITATION:	Rouvinetis v Grant [2001] NSWSC 513
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 20298/01
HEARING DATE(S):	19/06/01
JUDGMENT DATE:	21 June 2001
PARTIES :	Evangelos Rouvinetis v Beverley Grant
JUDGMENT OF:	O'Keefe J at 1

LOWER COURT JURISDICTION :	Supreme Court (Master)
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER :

COUNSEL :
SOLICITORS:	Plaintiff in person Alex Lee, Sydney - For defendant
CATCHWORDS:	Appeal from Master - Strike out of Statement of Claim - Imbalance in representation - Leave to amend refused
LEGISLATION CITED:	Supreme Court Rules Pt 15 r 26
DECISION:	Application by the plaintiff dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
SYDNEY REGISTRY
COMMON LAW DIVISION

CORAM: O’KEEFE J

THURSDAY, 21 JUNE, 2001

JUDGMENT

1    HIS HONOUR: This is an appeal from a decision of Master Malpass given on 24 April 2001 by which he struck out the statement of claim of Evangelos Rouvinetis (the plaintiff) and ordered him to pay costs. An appeal was instituted by a document entitled “Notice of Motion (Notice of Appeal)” which was filed on 5 June 2001. It is thus out of time and no application has been made for an extension of the time within which to lodge an appeal from the decision of the Master.

2    The matter has a long history which, as best I can piece it together from the material before the court, is as follows: in December 1997 the plaintiff was arrested by police officers and charged with assault and resisting arrest. According to the plaintiff these charges were dismissed in March 1998. He then brought criminal charges in the Supreme Court against certain “Crown servants”, which proceedings were dismissed in June 1997. The plaintiff appealed to the Court of Appeal in respect of this decision but his appeal was dismissed. He then sought to challenge the decision of the Court of Appeal in the High Court but, despite his appearance in person, he claims that “the High Court…did not accept the triplicate documents of my action” and his attempted challenge was unsuccessful.

3    New criminal charges were then laid by him against “another Crown servant, but this proceeding was also dismissed”. He appealed to the District Court against this decision but such appeal was dismissed. He then instituted proceedings in the Supreme Court for damages. That claim was also dismissed.

4    On 20 October 1999 Beverley Grant (the defendant), on the recommendation of the local police sought an apprehended violence order against the plaintiff. The matter was heard at the Waverley Local Court on 3 April 2000. The Magistrate declined to make the order sought on the basis that she was “not satisfied on the balance of probability that Ms Grant has reasonable grounds to fear harassment”. It is in respect of those proceedings that the plaintiff has instituted an action for damages for malicious prosecution against the defendant.

5    On 3 April 2001 Master Harrison struck out the plaintiff’s statement of claim as disclosing no cause of action. Two days later namely on 5 April 2001, the present statement of claim was filed. It is in a form similar to but not identical with that struck out by Master Harrison.

6    It is this second statement of claim that was struck out by Master Malpass on 24 April 2001.

7    The pleading in question states:

“The defendant is liable to malicious prosecution by initiating proceedings against the plaintiff at the Waverley Local Court. The 20/10/1999 the case was dismissed the 03/04/2000 in absence of reasonable and probable cause in plaintiff’s favour.”
The particulars given are that the action is “in respect of civil proceedings taken by the defendant against the plaintiff without justification of action and in absence of reasonable and probable cause the plaintiff had injuries inflicted and losses and damage to reputation for which compensation is sought.”
Later in the particulars the plaintiff sets out the alleged malice in the following terms:
“Malice as a motive in the proceedings is clear by the defamatory and sinnister insinuations disclosed in the proceedings application signed by the defendant and numerous other, legally binding actions the defendant had takenn unsuccessfully against the plaintiff.”

8    The affidavit in support of the motion to reverse the decision of Master Malpass graphically indicates the emotional and immoderate approach adopted by the plaintiff. It asserts that the affidavit in support of the process to strike out the statement of claim “cackles foolishly”. It describes the mien of the Master as “stern” and claims that the Master made a statement “in an outrage”. However when cross-examined about these allegations it became clear that the outrage was not on the part of the Master, but rather on the part of the plaintiff who also exhibited outrage before the court against the solicitor for the defendant in the course of his cross-examination of the plaintiff.

9    For the Master to be stern would not constitute a ground of appeal. Indeed having regard to the fact that the statement of claim in issue before him was very similar to one that had been struck out by Master Harrison some three weeks beforehand, it would be understandable if the Master did appear stern, in the light of the amount of the Court’s time that was being taken up in relation to the matter.

10    The plaintiff further alleges “scandalous contact (sic) of malpass the 24/04/2001” and adds “I say to him and to all malpasses of the belligerent judiciary that…”. None of this was supplemented by the plaintiff by way of actual events, as opposed to declamatory statements, although the opportunity to do so was afforded to him. The conduct described in this matter was simply that the Master indicated, so the plaintiff alleges, that he proposed to dismiss the plaintiff’s application to amend his statement of claim and informed counsel for the defendant that he would know what steps to take if the plaintiff insisted on continuing to bring back before the Court like statements of claim. Even if this occurred it would not constitute misconduct on the part of the Master.

11    The plaintiff also complains of the judicial system referring to what is alleged to be a failure by the Chief Justice to reply to a letter from the plaintiff as “the silence of a fish”. The attack of the plaintiff is not limited to the court and judicial officers. Refusal of pro bono representation by the Bar Association in moderate terms and understandable circumstances is described as “a stupid denial”. None of these matters are relevant to the claim by the plaintiff in the present proceedings, as he finally conceded in the course of argument.

12    The material filed in support of the application includes a petition to the United Nations in Geneva accusing the High Court of Australia of “national treason, dictatorship and gross and massive abuse of human rights”. This too was conceded by the plaintiff to be irrelevant to his application.

13    It would appear from the foregoing that the plaintiff regards his proposed action as part of a crusade to expose what he sees as the short comings of the judicial system in Australia.

14    The relief claimed in the Notice of Motion is for:

“(1) Immediate reinstatement of my statement of claim 20298/01 which was dismissed the 24/04/2001.
(2) The statement of claim 20298/01 to be processed according to the Court Rules ‘81’ and ‘’68’ though, I, Evangelos Rouvinetis, the applicant of this motion, will prefer a Court’s hearing for to place the respondent under questioning for to unravel conspiracy of the respondent with other persons and authorities”.

15    The grounds on which the plaintiff claims relief include error of law and denial of natural justice arising through not applying “68” and “81”, abuse of process for striking out the statement of claim on the basis that it disclosed no cause of action and failing to give the plaintiff an opportunity to overcome any deficiencies in the statement of claim by repleading. Two additional grounds alleging “insolence and malice” on the part of the Master and unfairness because of the fact that the plaintiff was unrepresented whereas the defendant was represented by legal practitioners are also relied on.

16    The Court was informed by the plaintiff that the references to “68” and “81” were to the Practice Notes so numbered. Their relevance to the present application was not explained. Furthermore both have been rescinded or replaced, the last ceasing to operate on 31 March 1996. This ground of appeal is misconceived and without merit. It fails.

17    There is no evidence to support the claim of “insolence and malice” on the part of the Master as included in the grounds of appeal nor of “scandalous conduct” on his part, as alleged in the plaintiff’s affidavit in support of the application. When questioned about these allegations the plaintiff conceded that the conduct of the Master to which these vituperative descriptions have been applied was a claim that the Master said that he intended to refuse the application of the plaintiff to amend and a further claim that the Master indicated to counsel that he would know what to do if the plaintiff kept bringing the same matter back before the Court. Even if such claims were true, they would not constitute misconduct on the part of the Master. However I have difficulty in accepting the claim of the plaintiff in this regard. It is curious that the plaintiff claims to have sought an amendment of his pleading in the proceedings before the Master, but expressly stated that he made no such application to the Court in the present matter.

18    Imbalance in representation before the Master would appear to be related to the history of the matter and whilst the subject of adverse comment by the plaintiff against the Bar Association and other legal aid authorities, it would not constitute a ground of appeal in a civil matter such as that now before the Court.

19 The power of the Court to strike out pleadings arises both under the Common Law and the Rules of Court. Part 15 rule 26 of the Rules of Court relevantly provides that:

1. Where a pleading -
(a) discloses no reasonable cause of action…;
(b) has a tendency to cause prejudice embarrassment or delay in the proceedings;

(c) is otherwise an abuse of the process of the Court,

the Court may at any stage of the proceedings on terms order that the whole or any part of the pleading be struck out.”

20    An examination of the statement of claim filed by the plaintiff in my opinion reveals that it infringes the provisions of the above Rule. At the very least its form is such as to have the tendency to cause prejudice embarrassment and delay. Accordingly it is a pleading which was appropriately struck out.

21    When regard is had to the defective form of the pleading, the delay on the part of the plaintiff in commencing the present application and the failure of each of the grounds of appeal, I am of the opinion that the application must be dismissed.

22    I have given consideration as to whether leave to replead should be given to the plaintiff. However the absence of any application to amend the existing statement of claim and the history of the matter militate against the exercise of the court’s discretion in that regard. I do not give leave to amend.

23    The orders of the Court will be:

Application dismissed.

The plaintiff is to pay the costs.

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Last Modified: 07/19/2001