Agapis v Buckland
[2019] WASCA 75
•16 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: AGAPIS -v- BUCKLAND [2019] WASCA 75
CORAM: MURPHY JA
MITCHELL JA
HEARD: 16 MAY 2019
DELIVERED : 16 MAY 2019
PUBLISHED : 16 MAY 2019
FILE NO/S: CACV 18 of 2019
BETWEEN: RAOUL AGAPIS
Appellant
AND
JOHN BUCKLAND
STATE OF WESTERN AUSTRALIA
Respondents
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: SMITH J
Citation: AGAPIS -v- BUCKLAND [2019] WASC 3
File Number : CIV 2874 of 2013
Catchwords:
Vexatious proceedings - Where appellant prohibited from instituting proceedings in Federal Court in 2014 - Where appeal instituted in 2019 without leave - Whether s 8 of the Vexatious Proceedings Restriction Act 2002 (WA) required the appellant to obtain leave before instituting proceedings - Whether notice of appeal should be struck out
Legislation:
Vexatious Proceedings Restriction Act 2002 (WA), s 8
Result:
Notice of appeal struck out
Category: B
Representation:
Counsel:
| Appellant | : | In person |
| Respondents | : | Mr N T L John |
Solicitors:
| Appellant | : | In person |
| Respondents | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Agapis v Birmingham DCJ [2013] WASC 329
Agapis v Plumbers Licensing Board [2013] AATA 187
Agapis v Plumbers Licensing Board [2013] FCA 1221
Agapis v Plumbers Licensing Board [No 2] [2014] FCA 1045
Agapis v The State of Western Australia [2012] WASCA 132
Agapis v The State of Western Australia [2017] WASC 164
British American Tobacco Australia Ltd v The State of Western Australia [2003] HCA 47; (2003) 217 CLR 30
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
Granich Partners v Yap [2003] WASC 206
Re Agapis [2017] FCA 286
Re Birmingham DCJ; ex parte Agapis [2014] WASCA 197
REASONS OF THE COURT:
At the conclusion of the hearing in this appeal on 16 May 2019, we ordered that the notice of appeal be struck out on the ground that the appeal was instituted in contravention of s 8(2)(b) of the Vexatious Proceedings Restriction Act 2002 (WA) (VPR Act). We also ordered that the appellant pay the respondents' costs of the appeal, to be assessed if not agreed. These are our reasons for making those orders.
Background
This litigation and related proceedings arise out of the appellant's conviction of aggravated burglary, which has impeded his obtaining a plumbing contractor's licence in Western Australia.
The appellant was convicted of that offence in 2011, for which he received a sentence of 1 year 3 months' imprisonment suspended for 2 years. An appeal against that conviction and sentence was unsuccessful,[1] as was a subsequent application for judicial review in relation to that conviction, the dismissal of which he also appealed.[2]
[1] See Agapis v The State of Western Australia [2012] WASCA 132.
[2] See Agapis v Birmingham DCJ [2013] WASC 329; Re Birmingham DCJ; ex parte Agapis [2014] WASCA 197. Leave to issue a further writ seeking to impugn the conviction was also refused in Agapis v The State of Western Australia [2017] WASC 164.
While charged with the burglary offence, the appellant, who was a licensed plumber in New South Wales, applied for a plumbing contractor's licence in Western Australia. That application was made under the Mutual Recognition Act 1992 (Cth). The application was refused by the Plumbers Licensing Board. That decision was confirmed[3] by the Administrative Appeals Tribunal (AAT), at a point after the appellant had been convicted of aggravated burglary, on the basis that he was not a fit and proper person to hold the licence.
[3] Agapis v Plumbers Licensing Board [2013] AATA 187.
An appeal to the Federal Court of Australia against the AAT's decision was dismissed on 18 November 2013.[4] The Federal Court rejected the appellant's argument that the AAT had purported to exercise the judicial of the Commonwealth contrary to ch III of the Commonwealth Constitution.[5]
[4] See Agapis v Plumbers Licensing Board [2013] FCA 1221.
[5] Following Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577.
The primary proceedings and related Federal Court proceedings
In December 2013, the appellant commenced the primary proceedings, in which he claimed compensation and damages arising out of the refusal of the Western Australian Plumbers Licensing Board to issue him a plumbing contractor's licence pursuant to the Mutual Recognition Act. In January 2014, the writ was amended to claim that Board did not have jurisdiction to grant or refuse a licence. This was on the asserted basis that the function involved the exercise of the judicial power exclusively vested in ch III courts by the Commonwealth Constitution.
On 24 January 2014, a registrar made orders staying the primary proceedings until:
(1)the court was satisfied that s 78B of the Judiciary Act 1903 (Cth) (which requires notices to be given to Attorneys General of matters arising under the Constitution or involving its interpretation) had been complied with; and
(2)an appeal in the Federal Court of Australia (against the order dismissing his appeal from the AAT, which raised questions of fact and law common to the primary proceedings) was determined.
The appellant's appeal against the registrar's order of 24 January 2014 was deemed to have been discontinued when it was not entered for hearing within 7 days after it was commenced.[6]
[6] Under O 60A r 5(5) of the Rules of the Supreme Court 1971 (WA) as they stood at the relevant time.
The appeal in the Federal Court was determined on 26 September 2014 when the court made an order dismissing the appeal.[7] At the same time, the court made an order, under s 37AO of the Federal Court of Australia Act 1976 (Cth), that:
The appellant be prohibited from instituting proceedings in the Court.
[7] See Agapis v Plumbers Licensing Board [No 2] [2014] FCA 1045.
Section 37AO(1)(a) and (2)(b) of that Act relevantly authorised the Federal Court to make an order prohibiting a person from instituting proceedings in 'the Court' when satisfied that person had frequently instituted or conducted vexatious proceedings in Australian courts or tribunals. Under s 37AQ(1) of that Act, the effect of such an order is that the person must not institute proceedings in the Court without the leave of the Court under s 37AT of that Act. The references to the 'Court' in this context is to the Federal Court of Australia.[8] 'Vexatious proceeding' is relevantly defined to include 'a proceeding that is an abuse of the process of a court or tribunal' and 'a proceeding instituted or pursued in a court or tribunal without reasonable ground'.[9]
[8] Section 4 of the Federal Court of Australia Act (definition of 'Court').
[9] Section 37AM(1) of the Federal Court of Australia Act (definition of 'vexatious proceeding').
The Federal Court made the order quoted at [9] above on the basis that it was satisfied that the appellant had frequently instituted or conducted vexatious proceedings relating to his criminal conviction for burglary and the refusal of the Board to issue him with a plumbing contractor's licence under the Mutual Recognition Act.
On 23 September 2015, a judge of the High Court of Australia refused an application for an extension of time in which to seek certiorari to quash the Federal Court's order quoted at [9] above.[10] On 22 March 2017, the Federal Court refused the appellant's application for leave to institute an appeal against the Federal Court's order.[11]
[10] See Agapis v A Deputy President of the Administrative Appeals Tribunal [2015] HCATrans 246. See also Agapis v A Deputy District Registrar of the Federal Court of Australia [2016] HCATrans 154
[11] Re Agapis [2017] FCA 286.
On 5 December 2017, notice was issued to the appellant on behalf of the Principal Registrar of this court that the primary proceedings were taken to be inactive pursuant to O 4A r 24 of the Rules of the Supreme Court. At that time, the primary proceedings were placed on the Inactive Cases List. The primary proceedings were taken to have been dismissed for want of prosecution on 6 July 2018, after the proceedings had been on the Inactive Cases List for 6 continuous months after the notice was given. That dismissal occurred by operation of O 4A r 28(1) of the Rules of the Supreme Court. On the same date, the Principal Registrar gave the parties written notice that the case had been dismissed, pursuant to O 4A r 28(3) of the Rules of the Supreme Court.
On 16 July 2018, the appellant filed a notice of appeal in the General Division of the Supreme Court, which purported to appeal against the 'decision' made by the Principal Registrar on 6 July 2018. On 19 December 2018, the primary judge ordered that that appeal against the notice given by the Principal Registrar to the appellant on 6 July 2018 was dismissed for want of jurisdiction. This was on the basis that the primary proceedings had been dismissed by operation of law, not by the Principal Registrar's notice. The appeal was held to be incompetent on the basis that there was no decision or order of a registrar upon which an appeal could be heard or determined.[12]
[12] Agapis v Buckland [2019] WASC 3 esp at [51] - [57].
The appeal to this court
On 29 January 2019, the appellant filed a notice of appeal against the primary judge's decision in this court. An amended appeal notice was filed on 1 February 2019.
By consent orders, the time for the appellant to file and serve his appellant's case was extended to 8 March 2019. On 5 March 2019, the appellant attempted to file an appellant's case, but the document was not accepted for filing on the basis that it did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA). On 11 March 2019, the Court of Appeal registrar wrote to the appellant advising him of this fact, and further extended the time for him to file and serve his appellant's case to 25 March 2019.
On 20 March 2019, the appellant emailed the Court of Appeal a 'written communication [in which] I state that I will not be proceeding with the appeal in the WA Court of appeal'. The written communication is titled 'Notice Hon Chief Justice Quinlan concerning [the appeal]' and dated 20 March 2019. The document contains various allegations of police and judicial corruption, and says in part:
I have been preparing an 'appellant's case' for the [appeal] and during the process realised that I was experiencing the same 'lawless cronyism' that is constant in the WA jurisdiction that I had experienced previously in different matters. I have coined the phrase 'lawless cronyism' as it is well suited to the level of fairness and justice, I have received as an 'indigent self‑represented litigant' in the WA jurisdiction.
…
I have decided not to pursue an 'appellant's case' in the Court of appeal.
…
I then made the decision that I need to go before a competent court with the trial judge's judgment.
…
I have experience now in WA courts, I cannot submit my work or myself to any further alleged corruption, I have had enough. I believe WA courts deliberately conduct themselves unlawfully with highly erroneous conduct in order to manipulate and 'bump' litigants out of court, especially litigants who have cases against WA and are self-represented, as a way of controlling the numerous acts of negligence, abuse of process and corruption by employees of WA.
…
The issue is, I now have no faith in Western Australian courts of law. Western Australia is the most toxic corrupt society I have ever experienced, where the only tradition in law appears to be 'lawless cronyism'.
…
I will be submitting this letter as an 'exhibit' into a competent court. When the voluminous body of corruption I have been forced to endure for numerous years becomes clear, I don’t think my head will be on the chopping board. (emphasis added)
On 21 March 2019, the Court of Appeal advised the appellant that if he did not wish to proceed with the appeal, he would need to file a notice of discontinuance.
On 25 March 2019, the appellant filed an application in the appeal seeking a stay of the appeal for 3 months as he was 'preparing evidence to lodge and file in a competent court, instances of alleged malfeasance and corruption by Western Australian judicial members' which the appellant claimed to have experienced. In an affidavit of the same day affirmed in support of the application, the appellant deposes in part:[13]
My experience in Western Australia has shown that the Western Australia [sic] society is an alleged highly corrupt society, where the Western Australia [sic] judiciary and various government departments have constantly denied me the 'rule of law', principles of law, sometimes relevant statute, deliberately impeded my progress allegedly resulting in the Western Australia [sic] judiciary allegedly resulting in the Western Australis [sic] judiciary allegedly relying on 'lawless cronyism' to allegedly shelve corruption on alleged earlier instances of corruption in tyrannical control.
I have been heavily traumatised by the relentless alleged illegal conduct of many facets, areas and departments of the Western Australian government, including the Western Australia [sic] judiciary and having to keep traversing the issues is extremely difficult and time consuming as I realise to what extent alleged crimes have been committed against me.
...
While the Western Australia [sic] judiciary continually refuses to apply correct law to my applications and the WA Court of appeal continues to deliberately ignore and allegedly deliberately stultify my applications in order that relevant legal issues remain unresolved, therefore, causing me harm and denying me due process of law to my detriment.
…
I am completely isolated in the toxic environment of Western Australia, I have learnt not to trust or engage with Western Australians as they are completely dishonest and generally have no integrity.
After years of enduring the unbridled systematic destruction of my existence by the Western Australian government, my stamina and endurance to work at the project of formulating the evidence as described above is slow, I have also realised that alleged deliberate prosecution by the Western Australia [sic] government is an alleged deliberate attempt to wear me down in the hope that relevant evidence does not appear before a competent court.
I will not be divulging the exact reasons or evidence I will be lodging and filing with a competent court, rather my request for a stay … is required and based on my health, capacity to work through issues that have been allegedly pathologically delayed and stultified by the Western Australian judiciary and past experience of the WA Court of appeal's justices [sic] alleged pathological failure to correctly apply law to the issue at hand, rather the WA Court of appeal's choice to allegedly shelve alleged corruption to cover existing corruption.
[13] Affidavit of Raoul Agapis affirmed 25 March 2019, pars 3 - 4, 8, 10 - 12.
On 27 March 2019, the registrar issued a notice for the parties to attend on 16 May 2019:
(1)to consider the appellant's application for a stay filed 25 March 2019; and
(2)to show cause why the appeal should not be dismissed pursuant to r 43(2)(g)(ii) of the Supreme Court (Court of Appeal) Rules (ie on the basis that the appellant has not obeyed the Rules or any order made under them).
On 29 March 2019, the respondents' solicitors wrote to the registrar's associate in effect contending that the appeal had been instituted contrary to s 8 of the VPR Act.
On 2 April 2019, the registrar issued a notice to the parties to attend on 24 April 2019 to show cause why the appeal should not be permanently stayed or struck out pursuant to s 8 of the VPR Act.
At the hearing on 24 April 2019, the court made programing orders and adjourned the hearing of the matters raised by the registrar's notice of 2 April 2019 to the hearing on 16 May 2019. The court also directed that those matters be heard prior to the other matters listed on that day, unless the court otherwise orders.
The VPR Act
Section 8 of the VPR Act provides as follows:
8. Restriction on person who is vexatious litigant in court other than court of this State
(1)This section applies if, in the High Court or the Federal Court of Australia, or in another State or a Territory -
(a)there is in force in respect of a person a declaration that the person is a vexatious litigant; or
(b)there is in force in respect of a person an order that the person must not, without the leave of a court, institute proceedings, or proceedings of a particular class, in a court or tribunal or that any proceedings instituted by the person in a court or tribunal must not be continued by the person without the leave of a court or tribunal.
(2)While a declaration or order is in force -
(a)any proceedings, or proceedings of the particular class referred to in the order, as the case may be, instituted by that person in a court or tribunal of this State are stayed and the provisions of this Act (other than section 7) apply, with all necessary modifications, to and in relation to that person as if an order staying any proceedings or proceedings of the particular class referred to in the order, either as to the whole or part of the proceedings, that have been instituted by that person had been made under section 4(1)(c); and
(b)the person is prohibited from instituting proceedings or proceedings of the particular class referred to in the order, as the case may be, in a court or tribunal of this State without the leave of the court or tribunal, as the case requires, under section 6 and the provisions of this Act (other than section 7) apply, with all necessary modifications, to and in relation to that person as if an order prohibiting that person from instituting proceedings, or proceedings of that particular class, as the case may be, without the leave of a court or tribunal had been made under section 4(1)(d); and
(c)on the application of -
(i)a person in respect of whom a declaration has been made; or
(ii)a person in respect of whom an order has been made; or
(iii)a person referred to in section 4(2),
the Supreme Court may in relation to the institution of proceedings in a court or tribunal of this State -
(iv)rescind the declaration; or
(v)rescind or vary the order. (emphasis added)
Section 6 of the VPR Act provides for the grant of leave to institute a proceeding which is required by s 4(1)(d) of that Act. Section 7 provides for the rescission or variation of an order made under s 4 of the VPR Act.
The term 'proceedings' is defined in s 3 of the VPR Act to include 'an appeal from a decision or determination, whether or not a final decision or determination, of a court'. 'Institute proceedings' is defined to include the taking of a step which may be necessary to commence an appeal in relation to civil proceedings or to a decision or determination made in the course of the proceedings.
A question of construction may arise in this case as to the meaning of the phrase 'an order that the person must not, without the leave of a court, institute proceedings … in a court or tribunal' in s 8(1)(b) of the VPR Act. Grammatically, two possible views are open:
(1)The phrase might require that the relevant order prohibit the person from instituting proceedings in any body that meets the description of a 'court or tribunal'. On that view, an order which merely prevented a person from instituting proceedings in a particular court or tribunal, but said nothing as to the person's ability to institute proceedings in all other courts or tribunals, would not be caught by s 8(1)(b) of the VPR Act.
(2)The phrase might require that the relevant order prohibit the person from instituting proceedings in one or more bodies, and that the body or bodies meet(s) the description of a 'court or tribunal'. On that view, any order that prevented a person from instituting proceedings in a particular court or tribunal would be caught by s 8(1)(b) of the VPR Act.
The context in which the phrase appears indicates that the second of these alternatives is the correct construction. Section 8 expressly refers to orders made by the High Court of Australia and the Federal Court of Australia as potentially falling within the scope of the section. Both at the time of the enactment of the VPR Act and presently, provisions in the High Court and Federal Court for dealing with vexatious litigants are court-specific. That is, those provisions only authorise the High Court or Federal Court to make orders (other than those confined to proceedings against an aggrieved party to vexatious proceedings in the court) preventing the institution of proceedings in that court without leave.[14]
[14] See O 21 r 1 of the Federal Court Rules (Cth) and O 63 r 6 of the High Court Rules 1952 (Cth), as those rules stood in 2002. The current Federal Court provisions are noted above. The current High Court provisions are contained in s 77RL - 77RS of the Judiciary Act.
Further, an order under s 4 of the VPR Act and equivalent legislation in other States cannot apply to proceedings instituted in any court or tribunal. Those State Acts have, and could have, no application of their own force to proceedings commenced in federal courts and tribunals sitting in the State.[15] State Parliaments have no power to make laws regulating the institution of proceedings in federal courts.[16] Section 79 of the Judiciary Act would, at least ordinarily, pick up and apply State laws such as the VPR Act to the exercise of federal jurisdiction in a State Court. However, s 79 would not apply State laws such as the VPR Act to the High Court or Federal Court, as the Judiciary Act and Federal Court of Australia Act 'otherwise provide' for the restriction of vexatious proceedings in those courts.
[15] See Granich Partners v Yap [2003] WASC 206 [39] and cases there cited.
[16] See British American Tobacco Australia Ltd v The State of Western Australia [2003] HCA 47; (2003) 217 CLR 30 [44] - [45].
Given the above, if s 8 only picked up orders that prevented a person from commencing proceedings without leave in any Australia court or tribunal (as opposed to one or more of the Australian courts or tribunals) then it would have no practical operation.
Operation of the VPRAct in this case
The appellant was given an opportunity to file written submissions in response to the respondents' submission that the appeal should be struck out or permanently stayed under s 8 of the VPR Act. On 10 May 2019, the appellant filed an affidavit and written submissions which repeat his allegations of judicial corruption, but do not substantively address the operation of s 8 of the VPR Act. At the hearing on 16 May 2019, the appellant indicated that he no longer wished to pursue the appeal.
The order made by the Federal Court of Australia on 26 September 2014 in respect of the appellant was, for the purposes of s 8 of the VPR Act, 'an order that the person (the appellant) must not, without the leave of a court (the Federal Court), institute proceedings … in a court (the Federal Court)'. Although the order does not expressly provide for proceedings to be commenced with the leave of the court, the effect of s 37AQ(1) of the Federal Court of Australia Act upon the order being made is that the appellant must not institute proceedings in the Federal Court without the leave of that court.
The Federal Court's order is still in force. An affidavit affirmed by the respondents' solicitor on 1 May 2019 attaches a certificate dated 30 April 2019 from the Federal Court of Australia certifying that the appellant was declared a vexatious litigant on 26 September 2014 and remains subject to that order.[17]
[17] Affidavit of Edward Clarence Indran Fearis affirmed 1 May 2019, annexure EF2.
Therefore, the Federal Court's order engaged s 8(1)(b) of the VPR Act. Section 8(2)(b) of that Act therefore prohibited the appellant from instituting proceedings (including by filing the notice of appeal in this court) on 29 January 2019 without the leave of the court.
Leave to commence this appeal was not obtained before the appeal was instituted on 29 January 2019. There would have been no prospect of leave to institute the appeal being granted under s 6 of the VPR Act if it had been sought. The decision of the primary judge was plainly correct for the reasons that her Honour gave. Nothing in any of the documents filed by the appellant in this appeal, or in the draft appellant's case sought to be filed on 5 March 2019, provides any grounds for doubting the correctness of the primary judge's order. The appeal itself is a 'vexatious proceeding' in that it was instituted without reasonable ground.[18]
[18] Paragraph (c) of the definition of 'vexatious proceedings' in s 3 of the VPR Act.
It was therefore appropriate to strike out the notice of appeal in this case on the basis that the appeal was instituted in contravention of s 8(2)(b) of the VPR Act. It was therefore unnecessary and inappropriate to deal with the other matters listed for hearing on 16 May 2019.
Costs
The respondents sought their costs of the appeal. There was no reason why costs should not follow the event.
Orders
For these reasons, at the conclusion of the hearing on 16 May 2019, we ordered that the notice of appeal be struck out on the ground that the appeal was instituted in contravention of s 8(2)(b) of the VPR Act. We also ordered that the appellant pay the respondents' costs of the appeal, to be assessed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell16 MAY 2019
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