Agapis v The State of Western Australia

[2017] WASC 164

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   AGAPIS -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 164

CORAM:   TOTTLE J

HEARD:   12 MAY 2017

DELIVERED          :   12 MAY 2017

FILE NO/S:   CIV 1759 of 2017

BETWEEN:   RAOUL AGAPIS

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
First Defendant

DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Second Defendant

WESTERN AUSTRALIAN POLICE
Third Defendant

ADAM GRIFFIN
Fourth Defendant

LAUREN PLUMMER
Fifth Defendant

Catchwords:

Application for leave to file a writ of summons - Where writ of summons constitutes an abuse of process - Application refused

Legislation:

Rules of the Supreme Court 1971 (WA), O 67 r 5

Result:

Application for leave to file writ of summons refused.

Category:    B

Representation:

Counsel:

Plaintiff:     In person

First Defendant              :     No appearance

Second Defendant         :     No appearance

Third Defendant            :     No appearance

Fourth Defendant           :     No appearance

Fifth Defendant              :     No appearance

Solicitors:

Plaintiff:     In person

First Defendant              :     No appearance

Second Defendant         :     No appearance

Third Defendant            :     No appearance

Fourth Defendant           :     No appearance

Fifth Defendant              :     No appearance

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

Agapis v Birmingham DCJ [2013] WASC 329

Agapis v The State of Western Australia [2012] WASCA 132

Re Birmingham DCJ; Ex parte Agapis [2014] WASCA 197

1. TOTTLE J:  I have before me a notice of originating motion that was issued on 11 May 2017 by which the plaintiff seeks leave to issue a writ of summons in which he is named as the plaintiff.  The defendants are the parties named as defendants on the notice of originating motion and I will refer to the proposed defendants in more detail later.

2. The notice of originating motion has not been served.  The plaintiff's originating motion is supported by an affidavit sworn by him on 11 May 2017 and filed today.  Helpfully, the plaintiff has also provided me with a copy of the writ of summons that he seeks leave to issue.

3. The plaintiff had filed the writ in the Central Office on 4 May 2017, and upon it being filed the staff at the central office referred the writ to the Principal Registrar for consideration pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA).

4. The Central Office staff were concerned that the writ might constitute an abuse of process.  It appears that the Principal Registrar concluded that the writ of summons constituted an abuse of process, and directed that the writ not be accepted for filing.

5. By way of background to this application, the plaintiff was tried in the District Court of Western Australia before a judge and a jury between 10 ‑ 13 May 2011 on a charge of aggravated burglary.  A judgment of conviction was entered in respect of that charge, and the plaintiff was sentenced to a term of imprisonment of 1 year and 3 months that was suspended for 2 years. 

6. The plaintiff appealed against the conviction, but that appeal was dismissed:  Agapis v The State of Western Australia [2012] WASCA 132.

7. Subsequently, the plaintiff filed an application for judicial review of the conviction, but that was dismissed by a judge of this court:  Agapis v Birmingham DCJ [2013] WASC 329.

8. A subsequent appeal against the dismissal of the judicial review application was dismissed:  Re Birmingham DCJ; Ex parte Agapis [2014] WASCA 197.

9. The parties named as the prospective defendants in the proposed writ of summons are the State of Western Australia, the Director of Public Prosecutions for Western Australia, the Western Australian Police and two natural persons.  At least one of the natural persons may have been the victim of the offence with which the plaintiff was convicted.  In any event, both were witnesses at the trial.

10. It appears from the indorsement of the plaintiff's claim on his proposed writ that the plaintiff seeks to air grievances about the manner in which the trial resulting in his convictions in 2011 took place.  In the course of submissions before me this afternoon the plaintiff has also aired and made submissions about the conduct of his appeal against that conviction.  The indorsement of claim includes a claim for damages for false imprisonment.

11. The contents of the indorsement of the writ appear to me to involve collateral attacks on each of the following: 

    (i)the criminal trial and the conviction;

    (ii)the outcome of the appeal against conviction;

    (iii)the outcome of the judicial review application; and

    (iv)the outcome of the appeal against the judicial review proceeding. 

12. The writ does not raise a justiciable cause of action with any realistic prospects of success.  It re-agitates controversies that have already been determined adversely to the plaintiff.

13. The Principal Registrar was correct in directing that the writ not be accepted for filing.  I am not prepared to make an order as sought by the plaintiff by his originating motion.

14. The defendants have not been served with the papers.  I would have been very loath to make an order that was adverse to their interests without first hearing from them.