Plaintiff v Defendants

1 The plaintiff, Mr Hugo Alastair Rich, by originating motion of 148 paragraphs over 34 pages filed in this court on 14 August 2006 has sought prerogative, interlocutory and other relief against 13 defendants, the identities of whom are stated in the schedule to this judgment. By summons filed on the same day he has sought like relief. Mr Rich has appeared in this Court without legal representation. In support of the process an affidavit, unaffirmed by Mr Rich, was filed on 14 August 2006 of 88 paragraphs. As there was cross process by some of the defendants, a supplementary affidavit by Mr Rich affirmed on 7 September 2006 was filed on 12 September 2006.

2 All the defendants but the 13th defendant have appeared before me by way of representation.

3 The 13th defendant magistrate has filed the usual formal appearance abiding the decision of the Court and not making any submissions to the Court. There was additionally a summons filed on 12 September 2006 by Mr Rich for judgment in default of appearance by the 13th defendant. I entirely accept what Mr Rich says, that he did not receive the appearance of the 13th defendant in the prison system. However, the appearance was in fact filed and accordingly that summons falls away.

4 In this Court the matter came on before Justice Teague in the Practice Court on 5 September who referred it out for hearing on 19 September 2006 which happened to be me having just returned from a lengthy circuit. I heard it yesterday and again today.

5 Mr Rich is charged with the murder on 8 March 2005 at Blackburn North of Mr Erwin Kastenberger and with other charges.

6 Committal proceedings are due to commence next Monday, 25 September 2006, listed as an eight week contested committal. The learned Magistrate has already dealt with matters of a preparatory nature and is seized of the matter, although as Mr Rich correctly says, the committal itself will commence - if it does commence - next Monday.

7 It is evident that the real nature of this proceeding is the seeking by Mr Rich of the capacity properly to prepare his defence for the committal proceeding, and by inference, to present his defence at that proceeding.

8 Although it is not evident in the lengthy affidavit material filed by Mr Rich, in fact Mr Rich is represented at the committal proceeding by an instructing solicitor and by counsel; although Mr Rich informs me today, that there is a possibility that he may not be represented by counsel next Monday. However the practical reality is he is legally represented before the Magistrate, although he has not been represented before me. In fact present throughout the proceedings before me, in the body of the court, has been his learned solicitor, Ms Ristivojevic. I have been scrupulous to ensure that she was not drawn into the proceedings by way of any side questioning from Mr Rich, who did not attempt to do so, or by any questioning by me. I have proceeded in a plenary sense on the basis of that Mr Rich is representing himself in this Court.

9 It is not insignificant, however, that after I rose yesterday an affidavit was handed to my Associate by Ms Ristivojevic. The affidavit had been sworn yesterday. To ensure that Mr Rich was not impeded by any minor matter of technicality, the affidavit has been received on that basis.

10 The complaint by Mr Rich as revealed in the process before this Court, and the relief he seeks, are inextricably linked to the committal process in the Magistrates' Court. The nature and ambit of the complaint and relief are the preparation of his defence for the committal in the Magistrates' Court and by inference the presentation of that defence in that Court. They are an incident of those proceedings. They do not stand separately from those proceedings or exist independently of them.

11 When one looks at the affidavits of Mr Rich, it is apparent that the gravamen and substance of his complaint is that he presently is unable to prepare for his committal by way of preparation of defence, and by implication, presentation of the defence once the committal commences. Thus for example, in the first affidavit - and like material appears in the second, which is an even lengthier affidavit which I will not rehearse in this judgment - in paragraph 28 he speaks of "resources required and needed for my court preparedness"; in paragraph 29(c) "for the purpose of preparation of my case"; in paragraph 33 "required to put a defence"; in paragraph 39 "It is respectfully submitted that it is virtually impossible to conduct a defence while being held in custody"; in paragraphs 77 to paragraph 88, thematically, preparation of his defence for the committal, including paragraph 88, "It is respectfully submitted that it is virtually impossible to both conduct and make a defence while being detained in custody". Mr Rich has said to me, which I accept, that what he meant by that expression in paragraph 88 is not a disguised application for bail, but rather that he sought proper access to material in custody so that he can prepare his defence and by implication present his defence.

12 When I asked Mr Rich a question which I thought was a logical question, namely, "Why haven't you asked the Magistrate before whom the committal is to be heard for an adjournment so you can prepare the defence?" Mr Rich replied, "I'm astute enough to read the play and read what's going on". By that "reading of the play", I presume Mr Rich has attributed to himself a foreknowledge of what a Magistrate - fundamentally required to fulfil administration of justice - might do if an application for adjournment was made. Today Mr Rich informed me that on 23 August 2006 - after the filing of these proceedings in this Court - an application for adjournment in fact was made to the learned Magistrate and that the Magistrate said that he would not deal with it because the matter was by then before this Court. I thought when Mr Rich said that, that that would have been an appropriate act of comity by the Magistrate to this Court, that if a matter was before this Court the Magistrate would not pass upon it; certainly not that the Magistrate had failed to deal with the question, or would fail to deal with it. Mr Rich has handed up transcript of that application, and it confirms what I by instinct had anticipated. The following appears:

Ms Ristivojevic: "Firstly I have instructions Your Honour to make an application to vacate and adjourn the committal proceedings due to commence on 25 September."

His Honour: "I don't propose to make any direction at all in relation to the committal proceeding. The matter is subject to application before the Supreme Court in relation to the proceeding. The Supreme Court will no doubt determine with its power, upon such material as it has, what it proposes to do in relation to proceeding. It would be wrong currently of me to make a determination."

Ms Ristivojevic: "If Your Honour pleases".

13 That passage appears at pp.61-62 of the proceeding on 23 August 2006. It demonstrates what I would in any event have anticipated, namely that the Magistrate did not make a determination refusing any adjournment application; and equally that there is no material to show the Magistrate would fail to deal with an application or refuse it in an unwarranted sense. Accordingly I do not accept Mr Rich's psychological judgment that he has "read what is going on". I have got every confidence that the learned Magistrate will properly conduct himself in relation to any application if it is made, on Monday at the commencement of the committal, for the proceedings to be adjourned in order that Mr Rich can properly prepare his defence, if the Magistrate is satisfied that such an application is a genuine application and not a mountain of obstruction. That is a matter I am confident the Magistrate would be well able to deal with, and indeed, far better than me because the Magistrate not only is vested with the power and responsibility of determining the matter properly, but of course, is seized of in detail the knowledge of the nature, parameters and facts of the case. So I do not proceed upon the basis that the learned Magistrate has made a pre-judgment as asserted by Mr Rich.

14 The question then comes to this: is this proceeding by Mr Rich properly before this Court? In my view, unequivocally it is not. This is a civil Supreme Court, called upon to exercise prerogative, interlocutory and other relief in a criminal proceeding currently before a Magistrate, which has been before the Magistrate for some time by way of mentions and which is next Monday, due to commence a committal being a criminal matter.

15 There is an amplitude of authority that fragmentation of proceedings, and collateral proceedings, in criminal process is highly undesirable. There are certain exceptional cases where it can occur, as the authorities demonstrate, but it is highly undesirable and it is highly undesirable for obvious reasons. We do not want a return to the demarcation disputes pre-1875 or other demarcation disputes between levels of courts or types of jurisdiction. A Magistrate has fundamental and holistic power to deal with what is before her or him, including adjourning a matter if necessary in order to achieve the administration of justice.

16 Mr Rich has put to me today, in a substantial oral submission which took an hour and a half, that the Magistrate has no legislative or common law power to order the relief sought in these proceedings in this Court. That is correct, but it is not the point. The point is that the Magistrate has the criminal process and the duty to ensure they are conducted fairly and the power to deal with an adjournment or other application by Mr Rich which I have no doubt the learned Magistrate will consider on the merits. The Magistrate will know that which I do not know, namely whether this is a genuine or a pretended complaint by Mr Rich and the consequences of it either way. The Magistrate is knowledgeable as to those circumstances. The process is before the Magistrate. It would be quite inappropriate for this Court to intervene when the matter is properly before the Magistrate. In my view, consonant with authority relied upon including, but by no means limited to, Smith v. Commissioner of Corrective Services[1], I consider that the proceedings bought by Mr Rich before this Court are incompetent and have no proper status. Mr Rich has submitted that Smith's case is narrower than the process before this Court and I agree with him that it is narrower in its factual ambit, but the principle is an holistic principle and a well entrenched principle and in my view a very just principle that we do not have fragmentation of proceedings or premature proceedings. The matter is properly before the Magistrate. That is where it shall stay. Accordingly on the threshold issue, I find that these proceedings by Mr Rich are incompetent and not properly brought before this Court. (Discussion ensued as to Orders).

SCHEDULE OF DEFENDANTS

PENNY ARMYTAGE (Secretary to the Department of Justice) First Defendant

KELVIN JOHN ANDERSON (Correctional Services Commissioner) Second Defendant

ROD WISE (Director - Prisons Services) Corrections Victoria Third Defendant

VICKY RYAN (Director of Sentence Management) Corrections Victoria Fourth Defendant

SHANE KELLY (Director of Major Offenders Unit -

Sentence Management Corrections Victoria Fifth Defendant

PETER OLSZAK (Managing Director) GSL Custodial Services Pty Ltd

DENIS ROACH (Prison Director) Port Phillip Prison

GSL Custodial Pty Ltd (ABN 37 050 069 255) Seventh Defendant

STEVE STEFFENSON (Standards & IT Manager) Port Phillip Prison

GSL Custodial Pty Ltd (ABN 37 050 069 255) Eighth Defendant

WILLIAM McLEOD (Acting PS2 Manager Port Phillip Prison

GSL Custodial Pty Ltd (ABN 37 050 069 255) Ninth Defendant

ALAN SCAIFE (Director) Metropolitan Remand Centre

CHRISTINE NIXON, Chief Commissioner of Police Eleventh Defendant

STEVE TREWAVAS, Detective Senior Constable (30052)

Homicide Squad, Victoria Police Twelfth Defendant

Magistrates' Court of Victoria Thirteenth Defendant

HIS HONOUR: Ms Mortimer there are certain consequences of that in relation to the Magistrate's proceedings. Plainly in relation to Mr Rivette's clients there are other issues because they are wider than just the Magistrates' issue, but dealing with your clients, do you want to seek orders now or consider the situation, or what do you seek to do?

MS MORTIMER: Your Honour we would submit that Your Honour's decision on - as Your Honour has given it, is sufficient for Your Honour to make an order under Order 23, Rule 1, the rules of this court, dismissing - - -

HIS HONOUR: What Ms Mortimer has said that the first to fifth and tenth defendants seek a judgment under the relevant rule, 23.01 which is judgment for those defendants against you Mr Rich, that's what you seek?

MS MORTIMER: Yes Your Honour, I think it's the first, second, third, fourth, fifth and tenth are the defendants Your Honour.

MS MORTIMER: And we would seek judgment accordingly and we would also seek an order for our costs Your Honour.

HIS HONOUR: Yes, thank you. All right, now Mr Rivette, your situation - - -

MR RIVETTE: Slightly different but we would seek that the summons in relation to us be dismissed with costs.

Then the remaining issue is really this claim of damages, and it relates to what purports to be a statement of claim, it's been issued by originating motion which is clearly in the wrong form, but it's appropriate that Your Honour is able to make an order that it be considered to be issued by writ.

MR RIVETTE: But then the normal order would be that the supporting affidavit, if it's capable of standing as a statement of claim, stands as a statement of claim. Well in this proceeding we have something that purports to be a statement of claim and a series of affidavits. When we look at that collectively, we say that that is not sufficient to stand as a statement of claim in the action for damages. So the appropriate order in our submission would be that the - not standing on the formal

MR RIVETTE: - - - that the originating motion be considered to be - that the proceeding be considered to be issued by way of writ, and an order that there be a statement of claim served, that is, that his doesn't stand as the statement of claim.

HIS HONOUR: Yes, all right, thank you very much. Mr Dennis, what orders do you seek?

MR DENNIS: Your Honour, the matter of orders is dealt with in Paragraph 9 of my submissions and I think there's nothing I need to add to that other than that my client seeks costs, an order for costs as well.

HIS HONOUR: I've got your submissions only up to Paragraph 8, so I might have got an earlier draft.

MR DENNIS: I've got the first draft, can I hand up a subsequent draft.

MR DENNIS: My instructor has pointed out that the word "Dismiss" the very last word, might be inappropriate, perhaps that should be seeking judgment.

HIS HONOUR: Yes well it's Rule 23.01 again isn't it?

HIS HONOUR: All right, Mr Rich, the parties have sought an order for costs against you of these proceedings. The usual order, Mr Rich, is that the losing party in civil proceedings is ordered to pay the costs.

HIS HONOUR: Thank you, I'm obliged to you. In relation to the 1st, 2nd, 3rd, 4th, 5th and 10th defendants, I order judgment for those defendants against the plaintiff pursuant to Rule 23.01, and I order that Mr Rich pay the costs of those defendants to be taxed if not agreed.

In relation to the 11th and 12th defendants, I likewise order judgment pursuant to Rule 23.01 in favour of those two defendants against Mr Rich, and I likewise order that he pay their costs to be taxed if not agreed.

In relation to Mr Rivette's clients, I dismiss the interlocutory process against the 6th, 7th, 8th, 9th defendants, and order that Mr Rich pay the costs of those defendants, to be taxed if not agreed.

In relation to the balance of the claim, that is the damages and like material, I order that a statement of claim stand if filed and that the matter then be subjected to appropriate direction. That matter can be stood over I think, Mr Rivette.

MR RIVETTE: Which ones are those - sorry, just for clarity, was the order that the statement of claim stand as a statement of claim?

MR RIVETTE: It does not stand as a statement of claim?

HIS HONOUR: All right, I will ensure that counsel has the judgment by the morning and Mr Rich does too. In relation to the 13th defendant, as I have said, I have made the ruling dismissing the summons for judgment in default of defence, and I dismiss the proceedings against that defendant also.

MR RIVETTE: Your Honour, one further order in relation to the damages claim. It would in my submission, be appropriate for an order that it proceed by way of pleadings so that rather than go back to get directions, we could have those - - -

HIS HONOUR: Well would you like to perhaps draw up one that is suitable and it can be provided to Mr Rich. I will make the order conceptually, that is to say notionally but in the appropriate form. Mr Rich is welcome to make a written submission to me if he would like to about the form that you advance of it.

HIS HONOUR: I rather think that matter might fall to the side, at least pro tem.

HIS HONOUR: Are there any other orders counsel?

[1] [1978] 1 NSWLR 317.