Although the declaration coincided with the end of Millane’s entrepreneurial career, it also signalled a new phase in his litigious activity. The requirement
150 Ibid, 386. Ironically, 50 years later when enacting the Supreme Court Act 1986 the Victorian
Parliament expressly excluded criminal proceedings from the section 3 defi nition of “legal proceedings”. In 2000, in a case involving another vexatious litigant, faced with these express words the Supreme Court had no hesitation in fi nding criminal proceedings were excluded. Somewhat superfl uously it reversed the decision in In re Millane. See Kay v Attorney-General [2000] VSCA 176. In 2003 the Government amended section 21of the Supreme Court Act 1986 (Vic) to reinstate “criminal proceedings” within the defi nition of “proceedings” for vexatious sanction purposes. See Victoria, 462 Parliamentary Debates, Legislative Assembly, 5 June 2004, 2190.
151 In re Millane [1930] VLR 381. See also, “Suppressing a Litigant: Case under new
Act: Motion against Rupert F. Millane”, Argus, 12 August 1930, 7 and “Millane sits on mountain of law awaiting legal earthquake”, Truth, 9 August 1930, 13.
152 In re Millane [1930] VLR 381.
153 NAA: A10074, 1930/47. Special leave refused 16 October 1930. For a subsequent
application, see NAA: A10074, 1930/51.
154 Scullin eventually prevailed and Isaacs served as Governor-General of Australia in the
period 1931–1935. See further, Christopher Cuneen, Kings’ Men, 1983, 173 ff.
155 Edna Francis Davis (1907–1989) (also known as Isaacs and Laszloffy), declared 21 July
that he seek leave before he issued proceedings moved the focus to the superior courts and away from the defendants and inferior courts. The Supreme and High Court Registries and Practice Courts became the focus of Millane’s prodigious numbers of affi davit fi lings and in-person motions. However, the subject matter had familiar themes, namely stage carriage licenses and compensation from the Heidelberg Shire.
The declaration was not an immediate success. Millane continued to show his legal ingenuity. In October 1930 he issued proceedings against the Mayor, aldermen, councillors and burgesses of the City of Melbourne and prosecuting offi cer O’Toole for barratry (the common law misdemeanour of habitually exciting or maintaining suits or quarrels).156 This was in response to MCC
prosecutions for running unlicensed buses. The Attorney-General promptly brought contempt proceedings in the Supreme Court. There, Millane gave an undertaking not to issue further proceedings but not before he requested an order “that other parties cannot take proceedings against me?” In response, MacFarlan J said: “You have an Act all to yourself. You can always defend any action brought against you, but you cannot defend by bringing another legal proceeding”.157
This advice foreshadowed Millane’s surge of activity through 1931. In April of that year Millane and two of his supporters, Noble Kerby158 and Frederick
Hampton, renewed the stage carriage campaign. They determinedly ran their unlicensed and dishevelled buses up and down Sydney Road to Coburg, pirating tramways customers. In response, licensing authorities conducted a massive campaign against them, resulting in repeated prosecutions and fi nes. Newspaper headlines of the day give the fl avour: “Competition with trams: Complaint about Bus service”,159 “Millane fi ned £50 for Bus offence:
Gives Notice of Appeal”,160 “Motor Omnibus Act: Further prosecutions”,161
“Motor Bus prosecutions: Developing into farce”.162 Then, on 29 May 1931,
Millane succeeded in getting leave to proceed by counsel to appeal the fi nes
156 Osborn P, A Concise Law Dictionary, 1964, 45.
157 “Contempt alleged: Attorney-General acts: Action against R. F. Millane”, Argus, 9
December 1930, 5.
158 An inventor and engineer, Kerby (1899–1958) was also a partner in Highway Motors. His
full name was “Noble Victoria’s Champion Kerby”. His father had bestowed it to honour the victory of his Bungaree (near Ballarat) tug ‘o war team that coincided with his son’s birth. Kerby did not care for the full name and during World War One even returned a letter to his mother unopened after she addressed it with those initials. Letter of Colin Kerby (son) to author, 1 December 2005. As a self-taught engineer, in 1927 Kerby lodged a patent in France for an improved axle spring for an automobile. See http://v3.espacenet. com/textdes?DB=EPODOC&IDX=FR627064&F=0&QPN=FR627 (3 October 2005). In later life he would hold the lease for the iconic kiosk on St Kilda Pier. See further, Richard Peterson, A Place of Sensuous Resort: Buildings of St Kilda and their People, 2004, 10.
159 Argus, 11May 1931, 5. 160 Argus, 22 May 1931, 9. 161 Argus, 29 May 1931, 13. 162 Argus, 30 May 1931, 19.
and challenge the regulations under which the proceedings were taken. This had the effect of adjourning 80 further prosecutions pending the outcome of the challenge.163 In June, Millane had another success when an ageing Irvine
CJ ordered a stay “of all Summonses part heard or pending in the courts of Petty Session”.164 His Honour apparently misunderstood Millane’s rambling
application and made the wrong order.165 This, combined with a successful
application for an order to review on behalf of Kerby, caused speculation about “Will the buses come back?”.166
However, it was not to be and, urged on by Parliamentary167 and local
government168 pressure, by the end of the year the authorities overcame these
legal setbacks. Hampton169 and Kerby170 were gaoled and served eight and
six months respectively before being released on special licence. Kerby was determined to continue campaigning and as he was taken to prison announced he was standing as an independent candidate in the electorate of Melbourne Ports in the December 1931 federal election.171 He was unsuccessful and his
campaign dissolved.
163 This was an order of Mann J referred to in notes of Barry J, dated Aug/Nov 1950,
contained in Victorian Supreme Court fi le 4360 of 1930. See also, “Millane drives Stage Coach through Bus law”, Argus, 8 August 1931, 12.
164 NAA: A10074, 1953/24. Extract of Order of Full Court, dated 27 May 1953.
165 Kevin Anderson, Fossil in the sandstone, the recollecting judge, 1986, 129 and also
Supreme Court fi le n 98, Affi davit of Rupert Frederick Millane, 20 November 1940.
166 “Millane drives Stage Coach through Bus law”, Argus, 8 August 1931, 12.
167 Mr Keane MLA, Victoria, 186 Parliamentary Debates, Legislative Assembly, 26 August
1931, 2549 ff.
168 PROV, VPRS, 3183/P3, Unit 189, File 4775, Coburg Town Clerk to Town Clerk, City of
Melbourne, 27 October 1931.
169 1931 Police Gazette,week ending 6 August, 847. 170 1931 Police Gazette,week ending 2 June, 628.
171 “Candidate arrested: Mr Noble Kerby: He says campaign will go on”, Herald, 7 December
1931, 1, “Prison candidate: Must conduct his campaign by proxy: N. Kerby’s position”, Herald, 8 December 1931, 8.
Millane drives Stage Coach through Bus Law.
Millane litigation exposes loopholes in new bus law. Melbourne Truth (1931). Courtesy State Library of Victoria.
With his buses temporarily seized to pay fi nes172 and a warrant issued for
his arrest, Millane left the jurisdiction and moved to Albury, New South Wales. From there he continued litigating. In 1932 alone he had seven matters active in the High Court. In one, on behalf of Highway Motors, he sought £10,600 compensation from the State of Victoria, the Attorney-General, the Treasurer and the City of Melbourne for the gaoling of Hampton and Kerby, the loss of four stage carriages, fi nes imposed and general legal expenses.173 In another,
using the trading name Union Oil, he sued the Commonwealth Government claiming, among other things, that customs duties were ultra vires (that is, beyond the power of) the Constitution. In the High Court Millane’s former adversary in the stage carriage licence disputes, now Dixon J, found the action incomprehensible and stayed it forever. In Millane’s absence Dixon J ruled: “The state legislation relating to vexatious litigation might also apply in Commonwealth jurisdiction. It might be that Mr Millane was not suffi ciently competent to conduct his own litigation (Laughter)”.174
In March 1933 Millane returned to Victoria and was promptly arrested for non-payment of £1276 in fi nes and sent to Pentridge Prison for four years. However, in September, as with Kerby and Hampton, he was released on special licence after serving only six months.175 During his imprisonment he served
23 days solitary confi nement and was assessed by two police medical offi cers for removal to an asylum176 before being released following representations
by solicitor LP Le Grand of Brunswick.177 Possibly the Government was wary
of creating a “stage carriage martyr”. However, the event did give rise to a continuing grievance on Millane’s part.
Hardly missing a litigious beat, two months later Millane brought confusing proceedings in the Hawthorn Petty Sessions, seeking to introduce “fresh evidence of ownership” relating to the four seized buses. An exchange between the magistrate and Millane indicated how the courts would now deal with his actions. They would defer them.
Mr Stafford – I will have to go into it. I will do nothing about it today. Millane – The Chief Justice wants you to determine matters of fact.
172 “Coburg ’Bus service: Police seize vehicles: Distress warrant for unpaid fi nes”, Argus, 5
September 1931, 21, “Seizure of Motor-buses”, Argus, 19September 1931, 24; PROV, VPRS 4035/P0, Unit 15, Item 31/3852.
173 NAA: A10074, 1932/7.
174 “Law Suit stayed for ever: Millane’s action: High Court Judge’s comment”, Herald, 29
July 1932, 8. “‘For ever stayed’: Action by R.F. Millane”, The Age, 30 July 1932. See also, NAA: A10074, 1931/3.
175 1933 Police Gazette,week ending 23September, 935. See also, “Persistent Litigant:
Committed to Prison”, Argus, 24March 1933, 8.
176 Supreme Court fi le, n 97, Affi davit of Rupert F Millane, sworn 20 November 1940. 177 PROV, VPRS 251/P0, Unit 136, Item 5023.
Mr Stafford – When the Chief Justice directs me to take evidence as to facts I will do so.
I will adjourn the matter until next year.178