Summary Judgment Application in Judicial Review Proceeding

Brown v Corrections Victoria & Ors [2022] VSC 217 (3 May 2022)

The plaintiff sought orders in the nature of certiorari to quash a number of decisions and procedural actions taken in his criminal proceedings.  He asserts that a number of the decisions and actions were ‘based on, underpinned, facilitated, governed and obtained by fraud'.  The Court, in determining his application, assessed the procedural deficiencies. 

Facts:

Mr Rohan Michael Brown, who is currently on bail, faces a number of charges for offences alleged to have been committed against members of Victoria Police. 

On 1 December 2021, he filed an originating motion for judicial review under r 56.01(2) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘the Rules’) seeking orders in the nature of certiorari to quash a number of decisions and procedural actions taken in his criminal proceedings.  

Mr Brown alleges, among other things, that a number of the decisions and actions were ‘based on, underpinned, facilitated, governed and obtained by fraud'.  Mr Brown names ‘Corrections Victoria/Department of Justice (Kate Fitzgerald)’ as the first defendant, ‘Magistrates Court Victoria (Magistrate Bulger) [sic]’ as the second defendant, and ‘Police Department (VIC) (Simona Tuica)’ as the third defendant. 

The first defendant’s summons seeks orders that the proceeding be summarily dismissed or stayed as against the first defendant pursuant to r 23.01(1)(a) of the Rules (on the basis that it is scandalous, frivolous or vexatious) or, alternatively, under r 23.01(1)(b) of the Rules (by reason of an abuse of process of the Court). 

The third defendant seeks equivalent orders pursuant to r 23.01(1), in addition to orders for summary judgment under ss 62 and 63 of the Civil Procedure Act 2010 (Vic) (’the CPA’), or, alternatively, the striking out of Mr Brown’s claim indorsed on the originating motion pursuant to r 23.02 of the Rules (on the basis that it does not disclose a cause of action, is scandalous, frivolous or vexatious or is otherwise an abuse of process).  

On 11 August 2021, Mr Brown was arrested on suspicion of having committed the offences of stalking, use of a carriage service to harass, intimidation of a law enforcement officer, harassing a witness and offences against the Bail Act 1977 (Vic) (‘the Bail Act’).  Members of Victoria Police then executed a search warrant at Mr Brown’s address and seized certain property, including computers and electronic devices.  

Detective Senior Constable (‘DSC’) Simona Tuica caused 46 charges to be filed against Mr Brown, including stalking, use of a carriage service to harass, and intimidating police (Case No M11690601) (‘the primary proceeding’).  Mr Brown also faced ongoing proceedings in Case No K12359859 which relate to charges arising from separate allegations of harassing a witness.  He entered a 14‑day quarantine period necessitated by COVID-19 pandemic restrictions in accordance with s 112O of the Corrections Act 1986 (Vic).  Mr Brown made an application for bail which was opposed by Victoria Police at a hearing on 19 August 2021. 

The application was adjourned and heard on 20 and 27 August 2021 before Magistrate Bolger, who denied him bail.  

On 8 September 2021, Mr Brown was transferred to Ravenhall Correctional Centre, a privately operated prison which falls under the jurisdiction of the first defendant.  On arrival, he again entered a 14‑day quarantine period. On 28 September 2021, Mr Brown requested, and it was determined, that the charges against him be heard in the committal stream of the Magistrates’ Court of Victoria.  On 11 November 2021, DSC Tuica issued an additional five charges against Mr Brown, which formed part of a hand-up brief.

On 13 January 2022, Mr Brown made an application for, and was granted, bail in relation to Case No K12359859 at the Melbourne Magistrates’ Court.  Bail was fixed on the basis of Mr Brown’s own undertaking and entered on 18 January 2022.  Also on 18 January 2022, Mr Brown made a further application for bail in the primary proceeding before Lasry J of this Court.  His Honour granted him bail on that day with certain conditions.  Mr Brown was released from detention on 19 February 2022.

Issues:

I. Whether or not the proceeding has no real prospect of success.

II. Whether or not proceeding would constitute abuse of process of the Court.

Applicable law:

Civil Procedure Act 2010 (Vic) s 62 - provides that a defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.

Supreme Court (General Civil Procedure) Rules 2015 (Vic) 23.01, 23.02 - pursuant to which the first defendant’s summons seeks orders that the proceeding be summarily dismissed or stayed as against the first defendant.

Gurappaji v Tonkin [2015] VSC 177; (2015) 45 VR 324 - provides that the Court’s jurisdiction to review the decisions of inferior courts and tribunals is supervisory and not appellate in nature.

Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163.  - provides that where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal.

Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158; (2013) 42 VR 27 - provides that the test for summary judgment under s 63 of the [CPA] is whether the respondent to the application for summary judgment has a “real” as opposed to a “fanciful” chance of success. 

Russell v Wisewould Mahony Lawyers [2018] VSCA 125 - provides that the test for summary judgment is a ‘stringent one’ which requires a high level of satisfaction on the part of the court.

Manderson M & F Consulting (A Firm) v Incitec Pivot Ltd [2011] VSCA 444 - provides that the inquiry as to whether a case has ‘no real prospects of success’ extends beyond an analysis of the sufficiency of the pleading. 

Feiglin v Ainsworth (No 2) [2014] VSC 376 - provides that summary judgment may not be granted merely because of inadequacies in the pleading. 

Avery v Manno (2020) 62 VR 281 - provides that an assessment of whether a judicial review application has no real prospect of success may be made by reference to, among other things, the merits of the application and procedural deficiencies within the application.

Re Demediuk [2016] VSC 587 - where as an alternative to granting summary judgment, a pleading (or initiating document) may be struck out with leave to re-plead, provided the court is satisfied that the circumstances show an arguable case can be pleaded.

Three Rivers District Council v Bank of England (No 3) [2003] 2 AC 1 [95] - provides that summary judgment will be ordered more readily where the matter involves a pure question of law than where there is a disputed question of fact. 

Hoh and ors v Frosthollow Pty Ltd and ors [2014] VSC 77 - provides that the summary judgment power is not designed to deal with cases involving complex questions of fact so that a ‘mini-trial’ on the documents is required to resolve the application.

Christie v Christie [1873] UKLawRpCh 36; (1873) LR 8 Ch App 499 - explained 'scandalous' as allegations made in a pleading for the purpose only of abusing or injuring the opposite party and allegations which are indecent or offensive are scandalous within the meaning of the rule, and liable to be struck out. 

Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 - where it has been said that what will constitute an abuse of process is ‘insusceptible of a formulation comprising closed categories.’ 

Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251 - provides that the use of the Court’s procedures would bring the administration of justice into disrepute.

Walton v Gardiner (1993) 177 CLR 378 - provides that a proceeding that is frivolous or vexatious may also be an example of an abuse of process.

Victoria International Container Terminal Ltd v Lunt [2021] HCA 11; (2021) 388 ALR 376 - considered the question of when a proceeding will be stayed or summarily dismissed as an abuse of process. 

Analysis:

Mr Brown’s judicial review application as it relates to the third defendant does not disclose any serious question to be tried and the originating motion and accompanying affidavit fail to disclose a reasonable cause of action.  There is confusion as to the identity of the decision-makers whose decisions are impugned and the grounds on which review is sought are not sufficiently clear or particularised.  Moreover, there are sound reasons why, as a matter of discretion, any relief should be refused, including for lack of utility, the relevant decision no longer having continuing legal effect, and the risk of fragmenting or interfering with the criminal proceedings which are on foot.  The broad allegations of fraud against Magistrate Bolger have no proper basis because they are insufficiently particularised and are articulated only at a high level of generality without properly identifying the legal and factual basis of the challenge to the Magistrate’s decision and orders.

In other words, there is no real question to be tried.  Further, Mr Brown has not put forward any convincing evidence to show Magistrate Bolger’s actions and decisions were induced by fraud, a lack of good faith, or a material misstatement of fact.  Moreover, even if an order in the nature of certiorari was available on the facts, the quashing of the Magistrate’s decision to deny Mr Brown bail would be futile because Mr Brown has since obtained bail and the Magistrate’s decision no longer has any continuing legal effect or consequence.  The problems inherent in the claims against the second defendant go beyond inadequacies in the originating motion and cannot be cured by amendment.

Conclusion:

The Court grants the first and third defendants the relief sought in their summonses.  The Court orders, on the Court’s own motion, summary judgment in favour of the second defendant in accordance with s 63(2)(c) of the CPA.