Thorpe v Prothonotary - [2024] VSC 360

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PRACTICE COURT

S ECI 2024 03140
S ECI 2024 03142

BETWEEN:

AUNTY ALMA THORPE	First Applicant
and
UNCLE ROBBIE THORPE	Second Applicant
and
ROD RATCLIFFE, PROTHONOTARY	First Respondent
and
ATTORNEY-GENERAL OF VICTORIA	Second Respondent

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JUDGE:	O’Meara J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	25 June 2024
CASE MAY BE CITED AS:	Thorpe v Prothonotary & Anor
MEDIUM NEUTRAL CITATION:	[2024] VSC 360

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PRACTICE AND PROCEDURE – Second applicant sought to commence various proceedings – Several refusals to receive documents for filing – Applicants seek to commence proceedings by originating motion – Identical proposed originating motions – Summons sought to be filed in S ECI 2024 01011 seeking to achieve reception by the Court of first originating motion – Underlying claims vaguely stated and largely political and polemical in nature – Originating motions and summons ignoring and thereby misusing proper procedure – Documents substantially irregular or an abuse of process – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 28A.04(2) and (5) – Originating motions and summons rejected for filing.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	N/A
For the Respondents	N/A

HIS HONOUR:

Rule 28A of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’) concerns electronic filing in RedCrest. In particular, rules 28A.04(2) and (5) provide as follows –

(2)The Prothonotary or the Registrar may reject a document if the Prothonotary or Registrar considers that—
(a)a document, if it were sealed, would be substantially irregular or constitute an abuse of process; or
(b) there has been a failure to comply with the Rules, an order of the Court or a direction of the Prothonotary or the Registrar after a reasonable opportunity to do so.

…
(5)If the Prothonotary or the Registrar—
(a)fails to seal a document within a reasonable time; or
(b)refuses to seal a document; or
(c)rejects a document—

the Court may—
(d)direct the Prothonotary or the Registrar to seal the document with a filing date, being the date the document was first submitted in RedCrest for filing;
(e)direct the Prothonotary or the Registrar to seal the document with a filing date, being the date the document is so sealed;
(f)make any other order or give any direction that it considers appropriate.

In recent times, the second applicant has sought to commence various proceedings in the Court; almost all of which have been refused for filing pursuant to r 28.04(2).

Three such refusals were the subject of a judgment by Forbes J on 3 April 2024, in which her Honour confirmed their correctness.[1] Among other things, her Honour observed that –
[1]Robert Thorpe v Charles Windsor (Supreme Court of Victoria, Forbes J, 3 April 2024). Her Honour considered three refusals of documents assigned following numbers for administrative purposes: S ECI 2024 00627, S ECI 2024 01043 and S ECI 2024 01183.

(a) two of the proposed proceedings impermissibly sought to use a civil proceeding as a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Thorpe v Prothonotary

Details

AGLC: Thorpe v Prothonotary [2024] VSC 360
Case: [2024] VSC 360
Decision Date: 25 June 2024

CaseChat Overview and Summary

The case of Thorpe v Prothonotary involved the second applicant seeking to commence various legal proceedings against the Prothonotary. The applicants aimed to initiate these proceedings through originating motions but faced several refusals to accept their documents for filing. To circumvent these refusals, they sought to commence proceedings by filing a summons in another matter, ECI 2024 01011, to gain access to the court for their originating motion. The underlying claims presented by the applicants were vague and largely of a political and polemical nature. The court was required to determine whether the applicants' originating motions and summons were in compliance with procedural rules and whether they represented a misuse of the proper procedure or an abuse of process.

The legal issues before the court centred on whether the applicants' originating motions and summons were in accordance with the Supreme Court (General Civil Procedure) Rules 2015 (Vic). Specifically, the court examined whether the documents were substantially irregular or an abuse of process under rule 28A.04(2) and (5) of the rules. The applicants' attempts to circumvent the refusal to accept their documents for filing were seen as ignoring and misusing the proper procedure. The court found that the underlying claims were not sufficiently clear, and the proposed documents were not aligned with the procedural requirements, leading to their rejection for filing.

The court found that the applicants' originating motions and summons were indeed substantially irregular or an abuse of process. The vagueness and political nature of the underlying claims, coupled with the misuse of procedural rules, led to the conclusion that the documents should not be accepted for filing. The court's decision was grounded in the need to maintain the integrity of the legal process and ensure that proceedings were initiated in a manner that complied with established rules and procedures. The applicants' attempts to bypass the refusal to accept their documents were deemed inappropriate, and as a result, the originating motions and summons were rejected.

The final orders of the court rejected the applicants' originating motions and summons for filing, reinforcing the importance of adhering to procedural rules and maintaining the proper process in initiating legal proceedings. The court's decision underscored the necessity for clarity and adherence to established procedures in the legal system, ensuring that all participants act within the bounds of the law.

Orders