Attorney General v Keating - [2000] WASC 276

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ATTORNEY GENERAL -v- KEATING [2000] WASC 276

CORAM: HASLUCK J

HEARD: 3 NOVEMBER 2000

DELIVERED : 3 NOVEMBER 2000

FILE NO/S: CIV 2181 of 1999

BETWEEN: ATTORNEY GENERAL
Applicant
AND
OISIN GEOFFREY KEATING
Respondent

Catchwords:

Vexatious litigant - Application for leave to commence proceedings - Proposed proceedings relate to matters raised previously - Application refused - Turns on own facts

Legislation:

Vexatious Proceedings Restrictions Act 1930

Result:

Application dismissed

Representation:

Counsel:

Applicant: Mr C P Wayte
Respondent: In person

Solicitors:

Applicant: State Crown Solicitor
Respondent: In person

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

Attorney General v Keating [2000] WASC 93

Case(s) also cited:

Nil

HASLUCK J: This is an application by Oisin Geoffrey Keating by a chamber summons dated 24 October 2000 for leave to commence legal proceedings.
The applicant Mr Keating recognises that he is presently subject to an order made pursuant to the Vexatious Proceedings Restrictions Act 1930. The background to the restriction imposed upon Mr Keating under that Act is set out in the reasons for judgment of Anderson J, Attorney General v Keating [2000] WASC 93, delivered on 19 April 2000.
The reasons for judgment given by Anderson J refer to a substantial history of applications being made to various courts for relief by Mr Keating. It is apparent from those reasons that some of the matters that have previously given rise to the litigation dealt with by Anderson J include reference to the matters mentioned in the affidavit of Mr Keating sworn 27 October 2000 which has been lodged in support of the application presently before me.
I will come to the full details of that affidavit in a moment. I simply observe, as I have just done, that the recent affidavit must be viewed in the context of the narrative reflected in the reasons of Anderson J delivered on 19 April 2000. The evidentiary materials before me include the formal order made by Anderson J on 19 April 2000. The order is in these terms, and I quote:
"1.Forthwith, and in accordance with section 3 of the Vexatious Proceedings Restrictions Act 1930, no legal proceeding shall be instituted by the Respondent in the Supreme Court, or in any inferior court, unless the Respondent shall first obtain the leave of the Supreme Court, or of some Judge thereof, after satisfying it or the Judge that the proposed proceeding will not be an abuse of process of the court in which it is intended to be instituted and that there is a prima facie ground for such proceeding."
That order echoes the language of the Vexatious Proceedings Restrictions Act. Put shortly, s 3 of that Act provides that leave shall not be given unless the Supreme Court is satisfied that the proceedings are not an abuse of the process of the court and that there is prima facie ground for the proceedings. Reference to proceedings in that context is a reference to the proposed proceedings.
It is against that background and with those criteria in mind that I must turn to the chamber summons for leave of 24 October 2000 filed by Mr Keating and brought before me this morning. The summons is in these terms:
"(1)the respondent have leave of the Supreme Court to commence in the Supreme Court an action for a declaratory judgment that the State of Western Australia remove sutures from the left eye of the Respondent's mother, Genevieve V. Keating, that were inserted by the State of Western Australia in Sir Charles Gardiner [sic Gairdner] Hospital in June, 1993, apparently as part of a conspiracy to defeat justice in relation to Supreme Court Action No. 1986 of 1992 between Oisin Geoffrey Keating Plaintiff, Samuel John Piers Woods First Defendant, and the Minister for Health Second Defendant. The sutures were inserted to prevent Genevieve Veronica Keating from seeing at near distances."
The summons concludes by saying that it was taken out by Mr Keating of 3 Seaview Street, Beaconsfield in the State of Western Australia. He is the person the subject of the restriction under the Vexatious Proceedings Restrictions Act.
The application is supported by the affidavit I mentioned earlier, being the affidavit of Mr Keating sworn 27 October 2000. That affidavit commences by referring to certain annexures. Annexure A to the affidavit is Dr Robert Linton's letter dated 16 May 1995; annexure B is Mr Mulherin's letter dated 8 August 1994. The affidavit goes on to say:
"Mr Mulherin's letter typed 8 August 1994 proves that my mother never had glaucoma for which my mother Genevieve Veronica Keating was operated on by Dr Michael Walsh, ophthalmologist, in 1989 and in June 1993. Mr Mulherin proves this by stating that my mother had at the time of writing, 'There are no significant visual field defects'."
I observe that notwithstanding what is asserted in the affidavit and what has been submitted to me, it has to be recognised that Mr Mulherin's letter is expressed with some use of technical terms and certainly does not present a picture of a person whose sight was not subject to any difficulties. Various matters are touched on and the report itself makes that clear. The report is in these terms:
"This lady -
that is to say, Genevieve Keating -
"requested a medical report as she is returning to Australia. She has, in the past, had bilateral trabeculectomies in Australia. She was having difficulty reading whilst in our care. This is attributable to convergent insufficiency. She was taught how to do convergence exercises and she is currently utilising the same. She also has a background of dry eyes for which she is on Isopto tears and Poly tears. Most recent ophthalmic examination revealed bilateral visual acuity of 6/6. There was evidence of meibomitis. Posterior segment examination revealed discs ratios of 0.5 and 0.3 in right and left eyes respectively. There are no significant visual field defects.
If you have any further queries regarding this patient please do not hesitate to contact St. Vincent's Hospital, Dublin, Ireland."
I pause there to say that in the absence of expert evidence it would be difficult for me on the basis of the evidence immediately before me to understand and unravel the full complexity of the state of affairs concerning Mrs Keating's eyesight at August 1994. Nonetheless, what does appear to me from the report is that this patient unfortunately was experiencing difficulties which had to be addressed. It cannot be said that she was a lady with no difficulties in regard to her eyesight.
The affidavit goes on to say in par 3:
"3. My mother was operated on by Dr. Michael Walsh in Sir Charles Gardiner [sic Gairdner] Hospital for glaucoma.
(4) Dr. Robert Linton stated in his letter dated 5th May, 1995: 'Provision diagnosis is residual sutures left conjunctiva which I told her were the probable cause'.
(5) Dr. Michael Walsh sutured my mother's left eye in Sir Charles Gardiner [sic Gairdner] Hospital in June, 1993, to prevent my mother seeing at near distances as part of an apparent conspiracy to defeat justice in relation to Supreme Court of W.A. Action No. 1986 of 1992 between Oisin Geoffrey Keating Plaintiff, Samuel John Piers Woods First Defendant, and the Minister for Health (for W.A.) Second Defendant. Proof of this is contained in Mr. Mulherin's letter dated 8th August, 1994, which states: 'This is attributable to convergent insufficiency'.
(6) I swear this affidavit in support of an application for leave of the Supreme Court to commence an action for a declaratory judgment that the State of Western Australia remove the sutures from the left eye of my mother Genevieve Veronica Keating."
It is against the background of that supporting affidavit that I must address the criteria enunciated in the Act as to whether leave should be given. Leave can only be given if I am satisfied that proceedings are not an abuse of process of the Court and that there is prima facie ground for the proceedings.
It follows from my review of the materials before me that an extremely serious allegation of conspiracy effected by the use of a medical procedure is being advanced and in respect of medical practitioners who are apparently qualified in their field of expertise.
For an allegation of that degree of seriousness to be sustained and to reveal grounds for obtaining relief at law, one would need cogent and persuasive evidence to underpin and point to the existence of such a conspiracy. I have to say that on the materials before me I do not see sufficient materials of that kind. I must also take account of the fact that some of these matters were adverted to in the reasons of Anderson J when he came to consider the question of whether a restrictive order should be made under the Vexatious Proceedings Restriction Act.
Against that background, I am therefore not persuaded that there is a prima facie case of the kind required by s 3 of the Vexatious Proceedings Restriction Act and nor am I satisfied that the proceedings are not an abuse of process of the Court. The concept of abuse of process is applicable when it seems that the proceedings may be used for a collateral purpose or have the effect of producing collateral or consequential effects which are not directly relevant to the cause of action being pursued by the claimant for relief.
It seems to me that against the background I have described, where reference is being made to proceedings taking place quite some time ago, and in the context of an extremely serious allegation of the kind I have described, the inference one is obliged to draw is that the proposed proceedings would have consequential and collateral effects and therefore are in the nature of an abuse of the process of the court. For that reason I rule against Mr Keating and I dismiss the application the subject of his chamber summons. There will be no order as to costs.