Rouvinetis v Pollack

Judgment 1On 28 January 2014 the plaintiff Evangelos Rouvinetis, filed a statement of claim and an affidavit sworn on 16 January 2014, which at [35] states: "With this affidavit the deponent seeks leave, to raise a claim against the five assaults that, no law protects volunteers of torts." 2Mr Rouvinetis is a vexatious litigant subject to orders made under s 8(7) of the Vexatious Proceedings Act 2008 (NSW) in Attorney General v Rouvinetis [2012] NSWSC 328. There Adams J ordered at [173]: "1. The defendant is prohibited from instituting proceedings in any tribunal or court in New South Wales without leave of this Court. 2. All of the proceedings in New South Wales already instituted by the defendant, with the exception of an appeal, if any, from the decision in Rouvinetis v Knoll [2011] NSWSC 1352 are stayed." 3One of the consequences of these orders is that Mr Rouvinetis may not institute any proceedings in this Court, without obtaining prior leave in accordance with the procedures established by the Act. Section 14(3) provides that: "14 Application for leave to institute proceedings (1) This section applies to a person (the applicant) who is: (a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or (b) acting in concert with another person who is subject to an order referred to in paragraph (a). (2) The applicant may apply to an appropriate authorised court for leave to institute proceedings that the order would otherwise prohibit the person from instituting. (3) The applicant must file an affidavit with the application that: (a) lists all occasions on which the applicant has applied for leave: (i) under this section, or (ii) before the commencement of this section-as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and (b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. (4) The applicant must not serve a copy of the application or affidavit on any person unless: (a) an order is made under section 16 (1) (a), and (b) the copy is served in accordance with the order. (5) An appropriate authorised court may dispose of the application by: (a) dismissing the application under section 15, or (b) granting the application under section 16. (6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application." 4I take it that by paragraph 35 of his affidavit Mr Rouvinetis is seeking leave to institute the proceedings contemplated in the statement of claim. Thereby he seeks compensation and a letter of apology, alleging that five named defendants, who he alleges being "unqualified and unlicensed, entered a public place as security" and "without right or authority committed tortious offences" against him. 5In a further twenty-five paragraphs, Mr Rouvinetis refers to an event on 9 April 2008 at Sydney Girls High School, during which he entered the school grounds, where he was approached by two young men in black who told him to leave and that there was a private function taking place; that he refused and went further into the school; that three other young men in black directed him to leave; that he refused again; and that he was then assaulted by these five men, handcuffed and kept on the ground until police arrived. He described these men to be "volunteer vigilantes of Rothman's paramilitary" and the function to have been organised by the Jewish Board of Deputies. 6Mr Rouvinetis' thirty nine paragraph affidavit had annexed to it correspondence sent in 2010 by a solicitor to another firm, seeking copies of submissions made in Rouvinetis v Knoll [2011] NSWSC 1352, various medical certificates and hospital records concerning the injuries he claimed were caused by the assaults the subject of the proposed proceedings; as well as an ASIC search relating Paliguard Pty Limited, a defendant in Rouvinetis v Knoll. 7In that affidavit Mr Rouvinetis deposed, amongst other things, to the events of 9 April 2008; the basis for his belief that a paramilitary operation was being conducted; referred to proceedings 15679/08, in which it was alleged there had been a conspiracy within this Court pursued by an identified 'minor cog'; and other aspects of this conspiracy; and alleged malpractice in proceedings 2008/288048. Mr Rouvinetis also made various allegations against the former Chief Justice and other members of the Court; complaints about the proceedings before Fullerton J and the orders her Honour made; complaints about an appeal before Basten JA and other proceedings before the Registrar; and makes complaints against the Crown solicitor in the vexatious litigant proceedings. He also refers to matters concerning his dispute with "agents of public housing". 8Mr Rouvinetis was given the opportunity to make written submissions to support his application. The submissions filed were brief. They echoed matters dealt with more extensively in his affidavit. 9Neither the lengthy affidavit nor his submissions comply with the requirements of s 14. They do not address the matters referred to in s 14(3)(a) or (b). The result of that failure alone is that the application for leave must be refused, s 15 of the Act providing: "15 Dismissing application for leave (1) An appropriate authorised court must dismiss an application made under section 14 for leave to institute proceedings if it considers: (a) the affidavit required by section 14 (3) does not substantially comply with that subsection, or (b) the proceedings are vexatious proceedings, or (c) there is no prima facie ground for the proceedings. (2) The application may be dismissed even if the applicant does not appear at the hearing of the application." 10The affidavit does deal with facts material to the application, but it does not disclose "all facts material to the application, whether supporting or adverse to the application, that are known to the applicant" as s 14(3)(c) requires. That is a further basis for refusing the leave sought. 11Also necessary to be considered is that the five proposed defendants appear to be the persons whose conduct became the subject of the proceedings in Rouvinetis v Knoll, referred to in the second order made by Adams J. The defendants in that matter were the members of the Executive of the New South Wales Jewish Board of Deputies and Paliguard Pty Ltd, which had provided the services of the proposed defendants in these proceedings, to provide security for the function conducted at the School in 2008. 12Fullerton J's judgment in Rouvinetis v Knoll reveals that in those proceedings Mr Rouvinetis was seeking an award of damages for injuries he claims he sustained at the hands of these proposed defendants, as well as exemplary and aggravated damages. Paliguard Pty Ltd was sued for assault, battery, and wrongful imprisonment on the basis of its vicarious liability for what was alleged to be the tortious actions of the proposed defendants. The other defendants were sued in negligence and for wrongful imprisonment. 13Mr Rouvinetis and at least three of the proposed defendants gave evidence in those proceedings, as well as police officers who attended the night Mr Rouvinetis claims he was assaulted. 14Her Honour did not accept Mr Rouvinetis' evidence about what then occurred, concluding that at [124] - [125]: "124 However impulsive and misdirected his pushing, kicking and punching might have been, and irrespective of whether it was as a result of frustration or rage when his request for information was summarily dismissed or ignored, I am satisfied that Mr Pollak (and Mr Narunsky) were entitled to restrain him, and that they used reasonable force to effect that restraint and maintain it until police arrived, not only for their own protection but to defuse the situation and prevent the risk of harm to the plaintiff. His injuries are not inconsistent with the application of reasonable force. 125 Accordingly, Paliguard is entitled to a verdict in its favour, the plaintiff having failed to prove liability for false imprisonment, assault or battery." 15These findings ought to have been disclosed by Mr Rouvinetis because they are plainly both adverse to his application and known to him. Whether Mr Rouvinetis has pursued an appeal is not apparent from his affidavit. 16Fullerton J's judgment also suggests that what Mr Rouvinetis now seeks to pursue in these proceedings falls within the definition of "vexatious proceedings" in s 6 of the Act: "6 Meaning of "vexatious proceedings" In this Act, vexatious proceedings includes: (a) proceedings that are an abuse of the process of a court or tribunal, and (b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and (c) proceedings instituted or pursued without reasonable ground, and (d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose." 17In considering the application for leave, it is pertinent to hark back to what Adams J observed in Attorney General v Rouvinetis at [166] - [167]: "166 ...The defendant's submissions were rambling and replete with gross exaggerations and wild accusations of one kind or another against members of the judiciary and the Tribunal, police and employees of the Department, as well as simple insult and vulgar abuse. He sought to demonstrate that many, if not all, of the matters relied on by the plaintiff were commenced by him for good reasons and wrongly decided against him. 167 In substance, the defendant contended that he is the victim of a massive criminal conspiracy at the instance of the various servants of the State and was provoked by their actions into taking the proceedings which are the subject of evidence. Those proceedings were fully justified and failed because of the conspiracy and/or the fact that he was legally unrepresented." 18Mr Rouvinetis plainly does not accept what Fullerton J found in Rouvinetis v Knoll and now seeks to re-litigate the factual matters the subject of those proceedings brought against the persons who he claimed in those proceedings Paliguard Security Pty Ltd was vicariously liable for. What happened that night between Mr Rouvinetis and the proposed defendants has been determined and cannot be re-litigated in the way Mr Rouvinetis seeks. The proposed proceedings are an abuse of process. That is another reason why the leave sought must be refused.