Russell White v Mallon-White

[2019] VSC 1

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT
(COMMON LAW)

S ECI 2019 00001

RUSSELL WHITE	Plaintiff
v
ELKA MALLON-WHITE & ORS	Defendants

---

JUDGE:	SIFRIS J
WHERE HELD:	Melbourne
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	14 January 2019
CASE MAY BE CITED AS:	Russell White v Mallon-White & Ors
MEDIUM NEUTRAL CITATION:	[2019] VSC 1

---

PRACTICE AND PROCEDURE – Self-represented litigant – Refusal by Prothonotary to seal document as originating process – Plaintiff seeking direction to Prothonotary to accept document – Documents irregular in form – Application refused – No direction given to the Prothonotary to accept the proposed originating process – Supreme Court (General Civil Procedure) Rules 2015, r 27.06.

HIS HONOUR:

1. On 10 December 2018, the proposed plaintiff, Mr Russell White, sought to file with the Prothonotary two documents being a Form 5A Writ to which was annexed a Statement of Claim, and a Form 5C Originating Motion (‘the documents’) to commence proceedings in the Supreme Court of Victoria. Following correspondence from the Prothonotary on 13 December 2018, on 18 December 2018 Mr White attempted to file an amended form of the Form 5C Originating Motion.

1. On 19 December 2018, the Prothonotary refused to seal or accept the documents from Mr White on grounds that:

(a) Were the documents to be sealed the proceeding so commenced would be irregular or an abuse of process of the court pursuant to r27.06(1) Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) (‘Ground 1’); and

(b) The documents had not been prepared in accordance with r27.06(2) of the Rules (‘Ground 2’).

1. In regards to Ground 1, the Prothonotary considered that:

(a)        Mr White sought to “continue” existing proceedings already on foot in the Magistrates’ Court of Victoria, parts of which appear to have already been appealed or challenged to the Family Court of Australia, the Federal Circuit Court and the High Court of Australia. The Supreme Court of Victoria cannot ‘continue’ a proceeding already underway in another court;

(b) Mr White appeared to seek to bring criminal charges against the majority of the proposed defendants. Criminal charges cannot be commenced in the Supreme Court of Victoria except in circumstances specified in s 5 of the Criminal Procedure Act 2009 (Vic);

(c)        Mr White appeared to seek that everything related to his existing proceeding be ‘cancelled’. While the Supreme Court of Victoria has supervisory jurisdiction over other inferior courts, the proper way would be to appeal or bring a judicial review application against those decisions;

(d)       Mr White requested an intervention order be granted against several of the proposed defendants. An application for an intervention order is required to be made to the Magistrates’ Court of Victoria or the Children’s Court as appropriate.

(e)        Mr White sought that a Federal Police investigation be undertaken. A request for an investigation should properly be made directly to the Federal Police.

(f)         The matters set out in the documents are embarrassing in a legal sense, in that the proposed defendants would be unable to answer the matters set out, as for the most part, they do not contain any specific allegations against them.

1. In regards to Ground 2, the Prothonotary considered that:

(a)        A Writ or Originating Motion cannot be filed in the Criminal Division of the Supreme Court of Victoria;

(b)        The documents do not contain in a summary form the statement of all the material facts on which Mr White relies, as is required by the Rules;[1]

(c)        Mr White did not include his address in the ‘tram tracks’ of the documents.

[1]Ibid, r 13.02.

1. I note that, following Mr White’s first attempt to file the documents, the Prothonotary sought, in the form of written correspondence on 13 December 2018, to assist Mr White by providing advice with regards to the deficiencies that would prevent the documents from being accepted for filing. While Mr White made some amendments in the form of an amended Form 5C Originating Motion provided to the Prothonotary on 18 December 2018, they did not address the overwhelming majority of the irregularities previously outlined by the Prothonotary in its written correspondence.

1. Accordingly, the proposed amended Form 5C Originating Motion submitted on 18 December was similarly rejected. In a letter dated 19 December 2018, the Prothonotary, after noting minor alterations, indicated that ‘otherwise the contents of the document remains the same from your original version’.

1. Mr White has sought a direction from the Court under r27.06(3) of the Rules that the Prothonotary accept the documents for filing in circumstances where the Prothonotary has refused to do so.

1. In Gao v Zhu, Zammit J relevantly observed:

‘I note, however, as did the Court of Appeal in Shaw v Yarranova Pty Ltd & Anor[2] that while the registry tries to assist self-represented litigants, there are limits to how far it can go. The registry is not there to provide legal advice. Nor can it become a partisan or be seen to do so’.[3]

[2][2012] VSCA 189 (16 August 2012).

[3][2017] VSC 105, [21].

1. I have read the documents and agree entirely with the approach taken, the decision made, and the reasons given by the Prothonotary. The reasons are comprehensive and do not contain any error. Accordingly, I decline to direct the Prothonotary to seal the documents as an originating process or to accept the documents for filing.