FEDERAL COURT OF AUSTRALIA

Hochmuth [2002] FCA 790

DAMIAN HOCHMUTH

JACOBSON J

18 JUNE 2002

SYDNEY

IN THE MATTER OF

THE COURT DIRECTS THAT:

1. The Registrar to refuse to accept or issue the application and statement of claim.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE MATTER OF:

REASONS FOR JUDGMENT

1                     On 12 June 2002 Mr Damian Hochmuth sought to file an application and statement of claim in the court.  The documents were faxed to the court on that date. 

2                     On 14 June 2002 Mr Tesoriero on behalf of the District Registrar wrote to Mr Hochmuth stating that in his view the documents appeared on their face to be frivolous or vexatious.  The matter was referred to the duty judge pursuant to Order 46 rule 7A of the Federal Court Rules for directions.   A copy of the rule was sent to Mr Hochmuth with the letter of 14 June.

3                     The matter was referred to me for directions this afternoon and the matter came on for hearing before me shortly after 2.30 pm.  Mr Hochmuth sought a direction under order 46 rule 7A(a) for the court to accept or issue the application and statement of claim. 

4                     Mr Hochmuth addressed me this afternoon in support of his application for a direction under rule 7A(a).  I asked him to state in as concise a form as possible how it is that he says that the application and statement of claim amount to a cause of action against either of the two proposed respondents, namely the New South Wales Police Service and the Australian Federal Police.  Most of what Mr Hochmuth said to me this afternoon is already set out in the document, which he wishes to file in court.   I think the most convenient course would be for me to set out large slabs of the document, which Mr Hochmuth wishes to file in the Registry.

5                     The details of the claim contained in the application refer to the annexed document, which is described as the statement of claim.  Mr Hochmuth says that on the grounds stated in an accompanying affidavit or statement of claim he seeks the orders contained in the proposed statement of claim.

6                     Paragraph 1 of the statement of claim states that the New South Wales Police Service failed to comply with duties conferred upon it by sections 7(b), 7(c) and 6(1) of the Police Service Act 1990.  The claim against the Australian Federal Police is said to be failure to fulfil duties conferred on it by section 8(1)(b) of the Australian Federal Police Act 1979. 

7                     The application then proceeds to state that the applicant claims the relief specified in the application and refers to an attached document described as a summary document.That document commences with a section described in the heading as "Summary of Affairs 6/6/2002". The document then proceeds to state that in about mid 2001 Mr Hochmuth decided to get advice on how to go about obtaining moneys that were being withheld from him by the Federal Government.   He says that he has confirmation of the existence of the money from several sources.  He says that he at first approached the Law Society of New South Wales who provided him with a list of solicitors to assist him with the case.  He says that one solicitor suggested he do a search with ASIC but he says the search came up with no results.

8                     The summary continues by referring to a question asked of Mr Hochmuth by another solicitor and states that Mr Hochmuth had contact with some other solicitors.  He then decided to take the matter to the Prime Minister.   The summary says that the matter was then passed on to Mr Hochmuth's local member, Mr Hockey. 

9                     Mr Hochmuth says he then referred the matter to the Australian Federal Police and he approached the New South Wales Police Service apparently as well as the Australian Federal Police.  Mr Hochmuth says that he has referred different versions of this summary to inter alia solicitors, the Legal Aid Commission of New South Wales, the Law Society, the New South Wales Bar Association and to other services or authorities referred to at the bottom of the first page of the summary of affairs.

10                  Mr Hochmuth states in the summary of affairs that he has strong evidence of a number of matters.  He says that he has been discriminated against in the employment selection process, that he has been subject to irrational and unreasonable behaviour from potential partners, that his mother has been attempting to blackmail, manipulate and control his life, that the Health Department has been attempting to control his life, that he has been terminated from at least one job, that he has no criminal record and that he has a statutory declaration with false comments made against him.  He refers in this regard to the MBF unfair dismissal claim.

11                  He goes on to say that he has been told verbally of a number of matters.  These include that he is a genius with a 200 IQ, that he has been defrauded of a large sum of money, that his company was bought out by the Microsoft Corporation, that he has been bought out by other entities, that wherever he went the people around him were "paid actors", that his mother is manipulating his life behind his back, that he has been defrauded in the household where he is currently living, that there was serious misconduct towards him during his education, that he is well-known internationally and that his privacy is being invaded and his actions and conversations are being broadcast.

12                  Mr Hochmuth also says he has good reason to believe that he has been misdiagnosed as a paranoid schizophrenic and incorrectly put on anti-psychotic medication, that he has been unfairly dismissed from more than one job, that he has been discriminated against in the selection for promotion, that some organisations are illegally withholding records concerning Mr Hochmuth, that a copy of his grandfather's will and Land Title Office documents are fraudulent and that he has been defrauded of the home that he is currently living in, that he has been given misleading advice and discriminated against by legal professionals, that he has an intellectual property claim against Microsoft.

13                  The summary then proceeds to state that Mr Hochmuth has witnessed various matters including harassment and unreasonable behaviour in public places, bullying, teasing and discrimination at school, outlandish behaviour including outlandish behaviour from prospective partners, implied and outright threats and intimidation, physical assault and stalking.  He says that the situation has affected him in a number of ways, as set out in the document, which he wishes to file.

14                  Mr Hochmuth goes on to say that the results he would like to achieve include a number of matters such as:  to gain full access to the money that is being withheld from him including full access to the company that has been set up including all its resources, full details on the Microsoft buyout, full details on any other buyouts, full details on the misconduct directed toward Mr Hochmuth during his education, to find out what legal action has been taken against him, to find out who the criminals are that he has been dealing with, to obtain all employment records from prior employers, to obtain any other records former employers have concerning him, what his mother has been doing without his knowledge concerning Mr Hochmuth, why the Health Department has acted in the way it has and what action has been taken, full details of the experiment that he was part of, who are the "paid actors" and who has been paying them and what action has been taken to curb this behaviour, who is meant to be protecting him, how he was married without signing any papers, an investigation into the authenticity of the will and probate and Land Title Office documents, the ability to form "normal relationships", the ability to lead a "normal" life and, finally, the full truth and full justice.

15                  In Walton v Gardiner (1992-93) 177 CLR 378 at 393 the High Court said:

“Thus, it has long been established that, regardless of the propriety of the purpose of the person responsible for their institution and maintenance, proceedings will constitute an abuse of process if they can be clearly seen to be foredoomed to fail.”

16                  An example of where order 46 rule 7A was applied was the directions given by his Honour Drummond J in Bird v Free, Minister for Schools, Vocational Education and Training (1994) 126 ALR 475.  His Honour gave directions to the District Registrar not to accept an application for leave to appeal because his Honour was of the view that Mr Bird had no prospect at all of obtaining leave to appeal against a direction given by his Honour Spender J.  Accordingly, Drummond J regarded the application as frivolous or vexations within the meaning of that term in order 46 rule 7A and he directed the District Registrar to refuse to accept or issue the application (at page 480). 

17                  The passage in the judgment of Mason CJ, Deane and Dawson JJ in Walton v Gardner to which I have referred to above was applied by Goldberg J in Lindon v Internet Corporation for assigned names and numbers [2001] FCA 265.  The approach adopted by Drummond J in Bird v Free was applied by his Honour Von Doussa J in Roderick v Australian and Overseas Telecommunications Corporation Limited (Von Doussa J, 6 May 1997, unreported). 

18                  In my view, the matters referred to in the proposed application and statement of claim amount to a litany of complaints which do not contain a summary of material facts which amount to a claim against the New South Wales Police Service under sections 7(b), 7(c) and 6(1) of the Police Service Act 1990.  Nor, in my view, does the document contain matters which amount to a failure to fulfil duties conferred on the Australian Federal Police under section 8(1)(b) of the Australian Federal Police Act 1979. 

19                  It seems to me that even if the statement of claim was permitted to be filed in court, it would be liable to be struck out upon the ground that it does not disclose a cause of action which could possibly succeed; see General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. 

20                  In summary therefore I am of the view that the proposed application and statement of claim would be foredoomed to fail and that it would therefore amount to an abuse of process, or that it would be frivolous or vexatious within the meaning of Order 46 rule 7A. 

21                  Accordingly, the direction, which I propose to give, is a direction in accordance with order 46 rule 7A(b) to the Registrar to refuse to accept or issue the application and statement of claim.  Accordingly, that is the order and direction, which I now give.

Associate:

Dated:              25 June 2002