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Agapis v Buckland

Agapis v Buckland

Case [2019] WASCA 75 16 May 2019

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agapis v Buckland

Details

AGLC: Agapis v Buckland [2019] WASCA 75
Case: [2019] WASCA 75
Decision Date: 16 MAY 2019

CaseChat Overview and Summary

The appellant, Mr Agapis, sought to appeal a decision that had been made by the Federal Circuit Court of Australia. Mr Buckland opposed the appeal, arguing that it was vexatious and should be struck out. The crux of the dispute was whether the appellant was required to obtain leave from the Federal Court before proceeding with the appeal, as stipulated by section 8 of the Vexatious Proceedings Restriction Act 2002 (WA). The appeal was instituted in 2019, five years after Mr Agapis had been prohibited from bringing proceedings in the Federal Court in 2014. The legal issues revolved around the interpretation and application of section 8 of the Act, specifically whether it mandated that the appellant obtain leave from the Federal Court before instituting the appeal.

The court examined the language of section 8 and concluded that it did not explicitly require leave from the Federal Court to be obtained before initiating an appeal. The court noted that the purpose of section 8 was to prevent the re-litigation of the same issues by the same parties, but did not impose a requirement for leave. The court further held that the provisions of section 8 were not applicable to appeals, as they only pertained to originating proceedings. Consequently, the court ruled that Mr Agapis was not required to obtain leave from the Federal Court before instituting the appeal, and the appeal was not vexatious.

As a result of the court's reasoning, Mr Buckland's application to strike out the notice of appeal was dismissed. The court found that the appeal was not vexatious, and the appellant was not required to obtain leave from the Federal Court before proceeding with the appeal. The appeal was therefore allowed, and the decision of the Federal Circuit Court of Australia was set aside. The matter was remitted to the Federal Circuit Court for further consideration.

Orders