Agapis v Buckland

[2019] WASC 3

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   AGAPIS -v- BUCKLAND [2019] WASC 3

CORAM:   SMITH J

HEARD:   19 DECEMBER 2018

DELIVERED          :   19 DECEMBER 2018

PUBLISHED           :   8 JANUARY 2019

FILE NO/S:   CIV 2874 of 2013

BETWEEN:   RAOUL AGAPIS

Plaintiff

AND

JOHN BUCKLAND

First Defendant

STATE OF WESTERN AUSTRALIA

Second Defendant

Catchwords:

Practice and procedure - Inactive cases list - Action deemed to be dismissed for want of prosecution - Case dismissed by effect of rules of court - No order or decision from which an appeal will lie

Legislation:

Interpretation Act 1984 (WA), s 5, s 47
Judiciary Act 1903 (Cth), s 78B
Mutual Recognition (Western Australia) Act 2010 (WA)
Mutual Recognition Act 1992 (Cth)
Rules of the Supreme Court 1971 (WA), O 4A, O 4A r 1, O 4A r 24, O 4A r 24(1), O 4A r 25, O 4A r 25(1), O 4A r 25(1)(b), O 4A r 26, O 4A r 27(1), O 4A r 27(2), O 4A r 28, O 4A r 28(1), O 4A r 28(3), O 60A r 2(1), O 60A r 4, O 60A r 4(1), O 60A r 5(5)
Supreme Court Act 1935 (WA), s 155(1), s 167(1)(c)

Result:

Appeal dismissed for want of jurisdiction

Category:    B

Representation:

Counsel:

Plaintiff	:	In person
First Defendant	:	Mr E Fearis
Second Defendant	:	Mr E Fearis

Solicitors:

Plaintiff	:	In person
First Defendant	:	State Solicitor for Western Australia
Second Defendant	:	State Solicitor for Western Australia

Case(s) referred to in decision(s):

Agapis v A Deputy District Registrar of The Federal Court of Australia at Perth [2016] HCATrans 154

Agapis v A Deputy President of the Administrative Appeals Tribunal at Perth [2015] HCATrans 246

Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045

Agapis v Plumbers Licensing Board [2013] AATA 187

Agapis v Plumbers Licensing Board [2013] FCA 1221

Cribb v Bell [2012] WASC 346

Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51

Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531

O'Connell v The State of Western Australia [2012] WASCA 96

Public Service Association and Professional Officers' Association Amalgamated of New South Wales v Director of Public Employment [2012] HCA 58; (2012) 250 CLR 343

R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254

Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112

Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 7] [2016] WASC 329

Rowe v Stoltze [2013] WASCA 92

Shaw v McGinty in his capacity as Attorney General [2006] WASCA 231

Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58

SMITH J:

1. On 19 December 2018, I made an order dismissing an appeal by Raoul Agapis against a notice given by the Principal Registrar to Mr Agapis on 6 July 2018 in this matter (CIV 2874 of 2013), for want of jurisdiction.

2. Pursuant to O 60A r 4(1) of the Rules of the Supreme Court 1971 (WA), a party who is dissatisfied with an 'order' or 'decision' of a registrar may appeal from it.

3. By operation of O 4A r 24 and r 28(1), CIV 2874 of 2013 had been dismissed for want of prosecution. Notice that the action had been dismissed for want of prosecution was given by the Principal Registrar to the parties in a letter dated 6 July 2018 as required by O 4A r 28(3).

4. The notice given by the Principal Registrar was not an 'order' or 'decision' to dismiss CIV 2874 of 2013.[1]

   [1] Rowe v Stoltze [2013] WASCA 92 [31] ‑ [33] (Newnes JA, Pullin & Murphy JJA agreeing); Rosebridge Nominees Pty Ltd v Commonwealth Bank of Australia [No 7] [2016] WASC 329 [12]; not challenged in Rosebridge Nominees Pty Ltd (in liq) v Commonwealth Bank of Australia [2018] WASCA 112 [34].

5. What follows are my reasons for making the order dismissing the appeal.

Background

1. Mr Agapis commenced proceedings against the first defendant, the acting executive officer of the Western Australian Plumbers Licensing Board, and the second defendant, the State of Western Australia, on 12 December 2013, claiming compensation and damages for negligence arising out of a refusal by the Western Australian Plumbers Licensing Board (the Board) to issue a 'plumbers licence' to the appellant pursuant to the Mutual Recognition Act 1992 (Cth).

2. On 3 January 2014, Mr Agapis filed an amended writ of summons in which a claim was added to the matters pleaded in the writ.  The additional claim was that the first defendant and the Board did not have jurisdiction to exercise judicial power (to grant or refuse a licence) as an exercise of judicial power is a matter of exclusive jurisdiction conferred upon a ch III court, by operation of the Commonwealth Constitution.

3. The writ of summons was served on the first and second defendants on 13 December 2013.  The amended writ of summons and re‑amended writ of summons were served on the first defendant on 6 January 2014.  The amended writ of summons was served on the second defendant on 2 January 2014 and the re‑amended writ of summons was served on the second defendant on 3 January 2014.

4. On 24 January 2014, Registrar C Boyle made the following O 4A case management directions:

   1.This action be stayed until

   (a)this Court is satisfied that s 78B of the Judiciary Act 1903 (Cth) has been complied with, and

   (b)Federal Court appeal Agapis v Government of Western Australia Plumber's Licensing Board no: WAD 460 of 2013 is determined,

   or until further order.

   2.There be liberty to apply.

   3.The costs of today be in the cause.

   4.The first defendant and a representative of the second defendant be excused from personal attendance at future case management conferences.

5. Section 78B of the Judiciary Act 1903 (Cth) requires that where a cause of action pending in a court of a State involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys‑General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys‑General, of the question of intervention in the proceedings or removal of the cause to the High Court.[2] 

   [2] It should be noted, however, that it is well‑established that a contention that is trivial, unarguable, frivolous or vexatious does not involve a matter arising under the Constitution or involving its interpretation. If the alleged constitutional issue is unarguable or vexatious, there is in truth no constitutional issue at all: Shaw v McGinty in his capacity as Attorney General[2006] WASCA 231 [42]; O'Connell v The State of Western Australia [2012] WASCA 96 [90]; applied in Cribb v Bell [2012] WASC 346 [13].

6. It appears, therefore, that Registrar C Boyle made order 1(a) because of the direction given to the court in s 78B of the Judiciary Act.

7. It appears the reason why order 1(b) was made by Registrar C Boyle was because, at the time the writ was filed by Mr Agapis, he had instituted proceedings in the Federal Court against the Board in WAD 460 of 2013, in which questions of law and fact raised in the Federal Court were common to the proceedings commenced by writ in this court.

8. On 30 January 2014, Mr Agapis filed a notice of appeal against the order made by Registrar C Boyle on 24 January 2014.

9. Mr Agapis made a request for hearing of the appeal before a judge. At the time the notice of appeal was filed by Mr Agapis O 60A r 4 provided that appeals from a decision of a registrar be heard by a master. In a letter to Mr Agapis dated 6 February 2014, from the supervisor of listings, Mr Agapis was informed that appeals from a decision of a registrar are listed before the master and accordingly he was required to file a request for a hearing before a judge as without such an application the appeal would not otherwise be listed at the direction of the court.[3]

   [3] Affidavit of Raoul Agapis affirmed 16 November 2018, Annexure RA-3.

10. On 18 February 2014, the then Chief Justice of Western Australia, the Honourable Wayne Martin AC, wrote to Mr Agapis in which it was reiterated that if he (Mr Agapis) wished to apply for an order that his appeal not be heard by a master he should file an appropriate application for such an order at the central office of the court.[4]

    [4] Affidavit of Raoul Agapis affirmed 16 November 2018, Annexure RA-4.

11. Mr Agapis did not file an application for an order that the appeal not be heard by a master.  In the absence of such an application the appeal did not proceed.

12. Order 60A r 4 was subsequently amended on 13 November 2015 to provide that an appeal from a decision of a registrar must be made to a judge, unless a judge orders that it be heard by a master. However, this amendment did not come into operation until 27 November 2015.[5]

    [5] Western Australia, Government Gazette, No 171 (13 November 2015) 4644, 4648.

13. At the time Mr Agapis instituted his appeal against the order made by Registrar C Boyle, O 60A r 5(5) provided that an appeal should be entered for hearing within seven days after it is commenced and if not so entered shall be taken to have been discontinued.

14. As the appeal was not so entered, and no further application was filed by Mr Agapis, the appeal against the order made by Registrar C Boyle on 24 January 2014 is taken to have been discontinued.

15. Mr Agapis lodged no further documents in CIV 2874 of 2013 until the filing of a notice of appeal on 16 July 2018.

16. WAD 460 of 2013 was an appeal from a decision made by Siopis J dismissing an appeal to the Federal Court from a decision of the Administrative Appeals Tribunal refusing an application under the Mutual Recognition (Western Australia) Act 2010 (WA) for a Western Australian plumbing contracting licence.[6]

    [6] Agapis v Plumbers Licensing Board [2013] AATA 187; Agapis v Plumbers Licensing Board [2013] FCA 1221.

17. The Federal Court appeal, in WAD 460 of 2013, was dismissed on 26 September 2014 by Gilmour J who made an order prohibiting Mr Agapis from instituting any further proceedings on grounds that Mr Agapis had frequently instituted or conducted vexatious proceedings.[7]

    [7] Agapis v Plumbers Licensing Board (No 2) [2014] FCA 1045.

18. Mr Agapis subsequently sought leave on two occasions to commence proceedings arising out of the dismissal of the appeal (in WAD 460 of 2013) in the High Court in its original jurisdiction in which he sought the issue of constitutional writs.  On 23 September 2015, the two applications were dismissed by Nettle J.[8]

    [8] Agapis v A Deputy President of the Administrative Appeals Tribunal at Perth [2015] HCATrans 246.

19. On 23 December 2015, Mr Agapis filed a further application to the High Court for an order to show cause seeking constitutional writs and related relief.  The principal relief sought was a writ of mandamus to order a deputy district registrar of the Federal Court at Perth to accept appeal documents for filing in which the Board was named as a second defendant.  The application was refused by Gordon J on 14 July 2016.[9]

    [9] Agapis v A Deputy District Registrar of The Federal Court of Australia at Perth [2016] HCATrans 154.

CIV 2874 of 2013 is placed on the inactive cases list

1. By letter dated 4 December 2017, the second defendant by its solicitor, the State Solicitor's Office, made a submission to the court that the case in CIV 2874 of 2013 was inactive pursuant to O 4A r 24, and requested that the proceeding be put on the inactive cases list.[10]

   [10] Affidavit Raoul Agapis affirmed 16 November 2018, Annexure RA-6.

2. In a letter dated 5 December 2017, Mr Agapis was given notice by Registrar C Boyle (on behalf of the Principal Registrar) that CIV 2874 of 2013 had been taken to be inactive pursuant to O 4A r 24 and advised that:[11]

   [11] Affidavit Raoul Agapis affirmed 16 November 2018, Annexure RA-7.

   (a)I have put the case on the Inactive Cases List; and

   (b)pursuant to O 4A r 26:

   (1)The only documents that may be filed at the Court in relation to the case are:

   (a)a summons for an order under O 4A r 27(1) that the case be taken off the Inactive Cases List;

   (b)a notice of discontinuance by the plaintiff under O 23 r 2;

   (c)an application for leave to discontinue the case or to withdraw the defence or counterclaim made by the plaintiff or the defendant under O 23.r 2;

   (d)a written consent under O 43 r 16 to the making of an order that would finally dispose of the case.

   (2)If the plaintiff or defendant files an application for leave to discontinue under O 23 r 2, the Court may grant leave to discontinue even though the case has not been removed from the Inactive Cases List.

   (3)If a written consent is filed under O 43 r 16 to the making of an order in a case on the Inactive Cases List that would finally dispose of the case, the Court may make the order even though the case has not been removed from that list.

   Should the case remain on the Inactive Cases List for 6 continuous months then, pursuant to O 4A r 28(1), it is to be taken to have been dismissed for want of prosecution.

   You are required to comply with O 4A r 25(2).

3. Mr Agapis took no steps to file a summons under O 4A r 27(1) for an order remove the action from the inactive cases list or file any other documents of the kind specified in O 4A r 26.

4. On 6 July 2018, Principal Registrar Strk sent to Mr Agapis by email a copy of a letter dated 6 July 2018 stating that:[12]

   You are now advised that the action has been on the Inactive Cases List for six continuous months after the date on which notice was given and, pursuant to Order 4A rule 28(1) of the Rules of the Supreme Court 1971 (WA), the action is now taken to have been dismissed for want of prosecution.

   By this letter, I now give all parties to the action notice of the fact.

   [12] Affidavit Raoul Agapis affirmed 16 November 2018, Annexure RA-9.

5. On 16 July 2018, Mr Agapis filed a notice of appeal which purports to be an appeal against a 'decision' made by the Principal Registrar on 6 July 2018 to dismiss CIV 2874 of 2013 for want of prosecution.

The grounds of appeal

1. Mr Agapis claims that Registrar C Boyle and Principal Registrar Strk exceeded their authority by exercising judicial authority when prohibited from doing so by ch III of the Commonwealth Constitution and the Mutual Recognition Act 1992.

2. At the heart of Mr Agapis' complaints is an argument that only judges of the Supreme Court can exercise the jurisdiction of the court of a State.  Consequently, he attempted to put an argument that only a judge could place CIV 2874 of 2013 on the inactive cases list and that the notice given by Registrar C Boyle on 5 December 2017 and the notice given by Principal Registrar Strk on 6 July 2018 constituted an impermissible delegation of judicial power.

3. The grounds do not address the statutory text of the rules of court.  The grounds raise no point or issue that goes to the proper construction of or the legal effect of O 4A that provide for the administrative procedures that apply when a case is deemed to be inactive.

4. The grounds of appeal and the argument put by Mr Agapis has no merit and must necessarily fail for three reasons. 

5. Firstly, whilst I do not agree that the giving of a notice pursuant to O 4A r 25(3) is an exercise of judicial power, in Public Service Association and Professional Officers' Association Amalgamated of New South Wales v Director of Public Employment,[13] French CJ observed that it is established that State legislatures are not constrained constitutionally by the separation of judicial from executive and legislative powers doctrine.  State legislatures can create a body that combines judicial and non‑judicial functions.  Similarly, Hayne, Crennan, Kiefel and Bell JJ observed in Public Service Association and Professional Officers' Association Amalgamated of New South Wales v Director of Public Employment that the doctrine of separation of powers (which prohibits the conferral of judicial and non‑judicial functions on one body) developed and applied in R v Kirby; Ex parte Boilermakers' Society of Australia[14] does not apply to the States.[15] 

   [13] Public Service Association and Professional Officers' Association Amalgamated of New South Wales v Director of Public Employment [2012] HCA 58; (2012) 250 CLR 343 [14].

   [14] R v Kirby; Ex parte Boilermakers' Society of Australia [1956] HCA 10; (1956) 94 CLR 254.

   [15] Public Service Association and Professional Officers' Association Amalgamated of New South Wales v Director of Public Employment [2012] HCA 58; (2012) 250 CLR 343 [57].

6. Thus, the institutional integrity of a State court is not affected by its members applying the law when performing non‑judicial functions.[16]

   [16] See Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51, 78 ‑ 89, 92, 94, 109, 118; Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 [69].

7. Secondly, pursuant to s 155(1) of the Supreme Court Act 1935 (WA) the Principal Registrar, other registrars and officers may be appointed for the administration of justice and the execution of all the powers and authorities of the court.

8. Section 167(1)(c) of the Supreme Court Act provides that rules of court may be made under the Supreme Court Act by the judges of the court for the purpose of conferring on a master, Principal Registrar, registrar or any other officer of the court, either generally or in particular cases, and under such circumstances and on such conditions as are prescribed, power to do such things, to transact such business and to exercise such authority and jurisdiction as a judge may by virtue of a statute, custom or rule or practice of the court, do, transact or exercise.

9. Pursuant to the powers conferred by s 167(1)(c) of the Supreme Court Act judges of the court have made O 60A r 2(1) of the Rules of the Supreme Court which confers jurisdiction on registrars of the court with respect to case management. Consequently, for the purposes of O 4A, a registrar has, in relation to a case for which the registrar is the case manager, the same jurisdiction that a judge sitting in chambers would have had under the Supreme Court Act, or the Rules of the Supreme Court if a judge were the case manager.

10. Thirdly, and most importantly in this matter, Registrar C Boyle on 5 December 2017 and Principal Registrar Strk on 6 July 2018 did not exercise any judicial power. For reasons that follow, CIV 2874 of 2013 became inactive and was dismissed because of the express operation of O 4A r 24, r 25 and r 28 of the rules of the court, and not by the effect of notice given by either Registrar C Boyle or Principal Registrar Strk.

Was a 'decision' or 'order' made by a registrar on 6 July 2018?

1. The threshold question before the court in this matter is whether there is a decision or an order made from which an appeal can lie to a judge of the court.

2. The Principal Registrar did not make an 'order' or 'decision' on 6 July 2018.

3. The Rules of the Supreme Court are subsidiary legislation and as such are part of the written law of Western Australia.[17]  Any act done under the rules are deemed to be done under the Supreme Court Act.[18]

   [17] Interpretation Act 1984 (WA) s 5.

   [18] Interpretation Act 1984 (WA) s 47.

4. Pursuant to O 4A r 24, if no procedural step is taken in a case for 12 months, the case is taken to be inactive unless the case manager for the case orders otherwise. A case manager is defined in O 4A r 1 to mean a judge, a master or registrar.

5. Order 4A r 25 provides that when a case is taken to be inactive under r 24, the Principal Registrar must put the case on the inactive cases list and give all parties written notice of the fact that the case is on the inactive cases list, and why and the effect of r 28.

6. Giving notice under r 25 is a pre‑condition to a case being dismissed under r 28. Le Miere J in Timcal Pty Ltd v Sons of Gwalia Ltd importantly explained:[19] 

   The object of O 4A r 25(1)(b) is that the parties receive notice that the case is on the Inactive Cases List so that they have an opportunity to apply for an order that the case be taken off the Inactive Cases List and thereby avoid the action being taken to have been dismissed for want of prosecution pursuant to r 28. A case may be put on the Inactive Cases List by order of the case manager under r 22. A case may be put on the Inactive Cases List after a judge, master or registrar has made an interlocutory order or case management direction that unless the interlocutory order or direction is complied with by a date stated in the order the case is to be put on the Inactive Cases List. A case might be put on the Inactive Cases List in circumstances where the plaintiff is not aware that it has been put on the list. The plaintiff may not be aware of an order having been made or, in the case of a springing order, that a purported compliance with a springing order is not compliance.

   The objective of O 4A r 25 is twofold. First, the parties to the case must receive the required notice so that they are aware that the case has been put on the list and of the consequences so that they have an opportunity to take appropriate steps. Secondly, r 25(2) provides that after receiving the notice from the court the practitioner for a party must notify the party that the case has been put on the Inactive Cases List and if it remains on the list for six months the action will be deemed to be discontinued. That gives the party the opportunity to take appropriate action if the practitioner has not done so because the practitioner has not received instructions or for any other reason.

   To hold that the giving of notice under r 25 is not a precondition to a case that is on the Inactive Cases List for six continuous months being taken to be dismissed under r 28 may have harsh consequences. As I have said, it may result in the action being dismissed and the plaintiff being unable to commence a new action.

   [19] Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58 [25] – [27].

1. Pursuant to O 4A r 28(1), if a case is on the inactive cases list for six continuous months after the date on which notice is given to the parties to the case, under r 25(1)(b), the case is taken to have been dismissed for want of prosecution.

2. During the period a case is on the inactive cases list a request may be made to the court for an order that the case be taken off the inactive cases list. Pursuant to O 4A r 27(2), the court may order a case be taken off the inactive cases list if satisfied that the case will be conducted in a timely way or for any other good reason.

3. If a case is dismissed under O 4A r 28(1), the Principal Registrar is required to give all parties written notice of the fact.[20]

   [20] Rules of the Supreme Court 1971 (WA) O 4A r 28(3).

4. As no procedural action had been taken in this matter from early 2014, by 5 December 2017, pursuant to O 4A r 24, CIV 2874 of 2013 was deemed to be inactive. Once r 24 is invoked, pursuant to O 4A r 25, the case must be put on the inactive cases list. As required by r 25, Registrar C Boyle gave notice on behalf of the Principal Registrar to the parties of the matters specified in r 25 and Registrar C Boyle put CIV 2874 of 2013 on the inactive cases list.

5. Mr Agapis deposes in his affidavit affirmed on 16 November 2018 that he received the letter dated 5 December 2017 from Registrar C Boyle giving notice that CIV 2874 of 2013 had been put on the inactive cases list in early December 2017.[21]

   [21] Affidavit of Raoul Agapis affirmed 16 November 2018 [12].

6. Thus, by 6 July 2018 CIV 2874 of 2013 had been on the inactive cases list for six months continuously and no procedural steps had been taken in the interim. 

7. In these circumstances, CIV 2874 of 2013 was dismissed for want of prosecution by operation of O 4A r 24(1), 25(1) and 28(1) and the parties were given notice of that fact pursuant to r 28(3).

8. Mr Agapis did not within the six month period whilst the case was on the inactive cases list make any request that the case be removed from the inactive cases list or make any other application. Mr Agapis received notice explaining the effect of O 4A r 26 and r 28.

9. The court has no power to reactivate CIV 2874 of 2013 after six months have expired after the case has been placed on the inactive cases list.

10. Plainly, CIV 2874 of 2013 had been dismissed by operation of law not by the notice given by Principal Registrar Strk in her letter to the parties dated 6 July 2018.

11. The appeal is incompetent as there is no decision or order of a registrar upon which an appeal can be heard or determined.

12. For this reason, there is no jurisdiction conferred upon a judge of this court to hear the appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

VV
Associate to the Honourable Justice Smith

8 JANUARY 2019