Pham v Ex Parte, Drakopoulos & Ors [2013] VSCA 43

14. Exhibit 1; Order and or Reasons from which Appealed.

Applicant's Written Submission dated 27 February 2013

52 In each of the four applications, the applicant has filed written submissions in common form dated 27 February 2013.

53 The applicant's submissions commenced with the following:

Whereas Bell J reasoned, the Supreme Court of Victoria has considered the relevance and application of the human rights to equality before the law, access to justice and the right to a fair hearing under the ICCPR to the right to a fair trial under Victorian law and the obligations of the court to self represented litigants,

The Appellant feels offended and vilified as a Refugee with bad Engrish (sic) who made every attempt to comply with the laws and rules of the Court to be treated less than the Upresented (sic) litigant in front of Bell J; Tomasevic v Travaglini & Anor [2007] VSC 337 (13 September 2007);

Whereas the Appellant made his facts and material evidence, they were ignored by the Judges;

Whereas the Appellant seek an interpretation of the laws and legal precedence, or questions of law, it was refused;

Where or not Bell J is the same as the one presiding on the High Court Australia, the Appellant seek to remove this cause into the High Court for an interpretation of the Charter relating to Equality before the Law of Immigrants and Refugees, inter alia.

54 The applicant then again referred to and analysed the decision of Bell J in Tomasevic v Travaglini & Anor[16] ('Tomasevic').

55 The central proposition advanced by the applicant is that: '... the right to a fair trial is important for promoting and respecting equality before the law and access to justice.' This statement of broad principal is unexceptional. It is reinforced in s 24(1) of the Charter. It was stated by Bell J in Tomasevic in the following terms: [17]

The right of every person to a fair criminal or civil trial, and the duty of every judge to ensure it, is deeply ingrained in the law. Expressed in traditional terms, the right is inherent in the rule of law - indeed, 'in every system of law that makes any pretension to civilisation' - and in the judicial process. Expressed in modern human rights terms, the right to a fair trial is important for promoting and respecting equality before the law and access to justice.

[Citations omitted]

56 The applicant also emphasised the right to a fair trial as sourced from the International Covenant of Civil and Political Rights 1966 (the 'ICCPR').

57 He quoted extensively from the judgment of Bell J in Tomasevic, (relying upon paragraphs [71]-[76] of his Honour's reasons).

58 The applicant concluded his submissions with the following:

Every judge in every trial, both criminal and civil, has an overriding duty to ensure the trial is fair. A fair trial is the only trial a judge can judicially conduct. The duty is inherently in the rule of law and the judicial process. Equality before the law and equal access to justice are fundamental human rights specified in the ICCPR. The proper performance of the duty to ensure a fair trial would also ensure those rights are promoted and respected.

Most self-represented persons lack two qualities that competent lawyers possess - legal skill and ability, and objectivity. Self-represented litigants therefore usually stand in a position of grave disadvantage in legal proceedings of all kinds. Consequently, a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance. Doing so helps to ensure the litigant is treated equally before the law and has equal access to justice.

The matters regarding which the judge must assist a self-represented litigant are not limited, for the judge must give such assistance as is necessary to ensure a fair trial. The proper scope of the assistance depends on the particular litigant and the nature of the case. The touchstones are fairness and balance. The assistance may extend to issues concerning substantive legal rights as well as to issues concerning the procedure that will be followed.

Justice Bell concluded that, by reference to these principles, the County Court had failed to accord Mr Tomasevic a fair trial such as to constitute a breach of natural justice and failure to properly exercise jurisdiction. His Honour ordered that Mr Tomasevic's application for leave to appeal be remitted to the County Court for reconsideration according to law.

The Appellant feels offended and vilified as a Refugee with bad Engrish (sic) who made every attempt to comply with the laws and rules of the Court to be treated less than the Upresented (sic) litigant in front of Bell J; Tomasevic v Travaglini & Anor [2007] VSC 337 (13 September 2007)

Whereas the Appellant made his facts and material evidence, they were ignored by the Judges;

Whereas the Appellant seek an interpretation of the laws and legal precedence, or questions of law, it was refused;

Where or not Bell J is the same as the one presiding on the High Court Australia, the Appellant seek to remove this cause into the High Court for an interpretation of the Charter relating to Equality before the Law of Immigrants and Refugees, inter alia.

Consideration of the Applications Relating to the Orders of Pagone J

59 The power of the Prothonotary under r 27.06(1) to refuse to seal an originating process where he considers that the form and contents of the document show that, were the document to be sealed the proceeding so commenced would be irregular or an abuse of the process of the Court, is not one to arbitrarily refuse to seal the document. Rather it is a power to refuse to seal the document without the direction of the Court.

60 In this case, the direction of the Court was sought without delay. The direction was not forthcoming from Pagone J.

61 The ground for the Prothonotary acting under r 27.06(1) to refuse to seal a document without the direction of the Court, is that the form and contents of the document, if sealed, would give rise to a proceeding that would be irregular or an abuse of the process of the Court.

62 The exercise of the power by the Prothonotary under r 27.06(1) is administrative in character. In the usual case he is not required to give reasons for his refusal where he considers that the rule operates. Indeed it is difficult to conceive of a case which called for reasons to be given by the Prothonotary because exercise of the power does not result in a final determination of the issue. It merely results in a reference of the matter to the Court for a direction.

63 In this case, the refusal on the part of Pagone J to direct the Prothonotary to seal the originating processes was self-evident and called for no reasons to be given. It is clear that his Honour was satisfied that the ground for refusal under r 27.06(1) had been made out.

64 No error has been demonstrated in failing to give reasons in this case. The applications do not disclose any ground of appeal which should be permitted to be advanced and on their face are frivolous. There is no proper basis for the proposed appeal.

Right to Equality Before the Law and to a Fair Trial and the Rules of Court

65 The right to equality before the courts as provided for in the ICCPR, and the right to a fair trial, as provided for in that instrument, do not focus on single issues, but rather consist of a complex set of rules and practices. [18]

66 The importance of these rights in the protection of human rights generally is underscored by the fact that the effective observance of all human rights ultimately depends upon the proper administration of justice.

67 The rules which govern the administration of justice in Victoria are comprehensive. Examples are provided by the Rules, the Act and the vast body of case law developed over centuries to facilitate the orderly and fair disposition of court business.

68 The High Court in Aon Risk Services Australia Ltd v Australian National University[19] also recognised the application of case management by courts needs to take into account the fact that 'the resolution of disputes serves the public as a whole, not merely the parties to the proceedings'.[20]

69 Together these rules provide a key element of human rights protection and serve as a procedural means to safeguard equality before the law and the right to a fair trial itself. In order to work, it cannot be left to the dictates of a party to a legal proceeding to determine the content of these rights. To proceed otherwise would be to abrogate the rule of law.

70 In Victoria, the Rules supported by the Act provide for a case management regime established for the conduct of civil appeals. It is an important body of rules governing the manner in which an appeal may be fairly conducted. The Rules and the Act provide for a demonstrably important and necessary body of governing principles, without which no trial or appeal could be fairly conducted, or indeed at all.

71 Rule 65.07 is part of that regime. It provides a facility to give fair notice to the opposite party of the application it has to meet and the material upon which the application is made. It also serves to appraise the Court of these matters so as to assist it in preparation for the hearing. A failure to comply with these rules may have deleterious effects, not only upon the other party to the proceedings in question, but also upon the Court in grappling with the case sought to be advanced by the applicant and comprehending the issues to be agitated. The failure may also have an adverse, albeit indirect, effect on other litigants, brought about by the unnecessary diversion of Court staff in dealing with the non-compliance.

72 In the exercise of the Court of Appeal's inherent jurisdiction to dismiss an appeal for want of prosecution and pursuant to the powers conferred by s 29 of the Act, each of the four applications should be dismissed in the interests of the administration of justice, on the grounds that they have not been reasonably prosecuted and disclose no proper basis for any appeal.

[1] [2012] VCAT 1161 (3 August 2012).

[2] Pham v Drakopoulos [2012] VCAT 1198 (10 August 2012).

[3] Ibid [37]-[42]; [47]-[51]; [54]-[57].

[4] Pham v Jones [2012] VCAT 1161 (3 August 2012).

[7] See Short Form Reasons of Mukhtar AsJ dated 4 October 2012 in lower court file S CI 2012 5043, [11].

[8] See Short Form Reasons of Mukhtar AsJ dated 4 October 2012 in lower court file S CI 2012 5038, [3].

[9] Ruling of Garde J dated 22 October 2012 in lower court file S CI 2012 5043, [10].

[10] Ruling of Garde J dated 22 October 2012 in lower court file S CI 2012 5038, [4].

[12] Cf. The Rules, r 24.01 which provides power to dismiss a proceeding in the trial division for want of prosecution; Supreme Court Rules 2008 (NT), r 84.13 which provides power to dismiss an appeal for want of prosecution.

[13] [1980] VicRp 3; [1980] VR 26 (Young CJ, Lush and Beach JJ).

[15] Williams' Civil Procedure, [I 23.01.135].

[16] [2007] VSC 337.

[19] [2009] HCA 27 (5 August 2009).

[20] Ibid [113] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.