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[1998] NSWCA 197
Court of Appeal (NSW)
1998-09-08
Dunford J, Barr J, Graham Barr J, Mason P, Sheller JA
Original judgment source is linked above.
ROUVINETIS v DEPARTMENT OF HOUSING COMMISSION OF NEW SOUTH WALES
MASON P, SHELLER JA and FITZGERALD AJA 8 September 1998, 8 September 1998 [1998] NSWCA 197
LEGALLY incomprehensible appeal - matter non-justiciable in a civil proceeding in the Common Law Division
Fitzgerald AJA This proceeding arises indirectly from disputes concerning the appellant's tenancy from the respondent. The initial dispute related to threats of eviction for alleged non-payment of rent. The more recent dispute concerned alleged noise from the appellant's premises. An earlier proceeding between the parties, No 30068/96, was determined by Dunford J on 17 July 1996. The present proceeding, No 11648/97, was later commenced by the appellant in the Common Law Division by summons. This appeal is brought from the decision of Barr J on 16 June 1997 dismissing the summons and ordering the appellant to pay the respondent's costs in an amount to be agreed or assessed.
There is a question as to whether the respondent has been correctly named in the summons, but no point has been taken, and these proceedings have been treated as though conducted against the New South Wales Land and Housing Corporation, also known as the Department of Housing.
The respondent was the only defendant named in the summons, which claimed:
"That the Department of Housing Commission of New South Wales or its personnels named in the affidavits have to answer charges in accordance of:
(3) 375 "1" "2" clause of the Crime Act 1900 No 40. (4) 393 clause of the Crime Act 1900 No 40.
An affidavit by the appellant sworn in support of his summons suggests that his complaints relate to letters which he allegedly received threatening him with eviction, an alleged failure to appreciate his prompt responses and efforts to advert misunderstandings, alleged inflammatory statements by the respondent, alleged misleading documents and statements by the respondent "creating a havoc of misunderstanding out of nothing", leaving the appellant to suspect conspiracy, alleged arbitrary correspondence convincing the appellant that the respondent's ".... personnels were trying to upset and have me respond to the rush with matching frivolity in an effort of gaining something against me", alleged abuse of office, intimidation and annoyance by the respondent, and alleged "... inaction of the departmental personnels for no apparent reason...".
In explaining his decision to dismiss the appellant's summons, Graham Barr J said:
"Tt seems to me inappropriate to make the orders sought. By his summons, the plaintiff effectively asks this Court to commence or make orders facilitating the commencement of criminal proceedings against the persons named in the
affidavit. That is not an appropriate manner in which to commence criminal proceedings, if such commencement is justified.
In the circumstances, it is not necessary for me to decide whether there is any substance in the claims made or foreshadowed by the plaintiff..."
The appellant's notice of appeal raises the following grounds:
"(1) That his Honour the Justice Barr erred in law in the findings of fact made therein these not being open to be found on the evidence presented.
(2) Further and in the alternative that his Honour Justice Barr was biased and the judgment as a consequence is unsafe and unsound."
The allegation of bias, which was not raised before the primary judge, is based upon an allegation in the appellant's written submission "... two personnels from the office of the Sheriff were following me...", apparently on the day of the hearing before his Honour. Even if the appellant's suspicions were well-founded, the activity described provides no foundation for a conclusion that Barr J was biased, and the allegation is patently without foundation.
The other matter raised by the appellant in his written submissions is expressed in the following terms:
"JUSTICE BARR CAME TO JUDGMENT WITHOUT EXAMINING DOCUMENTS IN SUPPORT OF MY CHARGES WHICH, HERE I EMPHASISE, SHOULD HAVE BEEN TAKEN SERIOUSLY AS THEY COULD AND THEY ARE CONCERNING MY SAFETY AND WELL BEING AS MY CASE REFERS TO DISPUTE WITH CROWN PERSONNELS OF AUTHORITY POWER AND RESOURCES AND LIKELY, AS EVERYONE KNOWS FROM FACTUAL EXPERIENCE TO INDULGE TO CONSPIRACY."
"WHOEVER I HUMBLY REQUEST THAT HONOURABLE COURT TOTAL INTERESTS BECAUSE JUSTICE REMEDIAL OR DISTRIBUTIVE IS FOR THE GOOD OF ALL.
THE JUDGMENT OF JUSTICE BARR OF 16/06/1997 OF THE CASE 11648/97 SET ASIDE AND AT THE REQUEST OF THE APPEAL CASE 40361/97 THE CASE TO BE RELISTED FOR A NEW HEARING."
As the respondent correctly pointed out, Barr J made no findings of fact. Further, his Honour was plainly correct in the course which he took, striking out the appellant's summons.
The relief claimed by the appellant in his summons is legally incomprehensible. He seeks a determination against the respondent that it "or its personnels" have to answer charges against various sections of the Crimes Act. That is not a matter which is justiciable between the appellant and the respondent in a civil proceeding in the Common Law Division. The appeal must be dismissed with costs.
Mason P The order of the Court is that the appeal is dismissed with costs. Appeal dismissed with costs.
UFQUVINETIS v DEPARTMENT OF HOUSING COMMISSION OF NEW SOUTH WALES (Mason P)
Solicitors for the respondent: Department of Housing Commission of New South Wales
ROUVINETIS
DEPARTMENT OF HOUSING COMMISSION OF NEW