Bride v Shire of Katanning - [2017] WASCA 59

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: BRIDE -v- SHIRE OF KATANNING [2017] WASCA 59

CORAM: NEWNES JA
MURPHY JA

HEARD: 9 MARCH 2017

DELIVERED : 31 MARCH 2017

FILE NO/S: CACV 118 of 2016

BETWEEN: EDWARD JAMES BRIDE
First Appellant
WENDY MARGARET BRIDE
Second Appellant
EDWARD JAMES BRIDE as trustee of the PINWERNYING FAMILY TRUST
Third Appellant
AND
SHIRE OF KATANNING
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :TOTTLE J
File No  :CIV 2401 of 2015

Catchwords:

Practice and procedure - Appeal against order under Vexatious Proceedings Restriction Act 2002 (WA), s 4 - Whether grounds of appeal have reasonable prospect of succeeding - Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) - Turns on own facts

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

First Appellant               :     In person
Second Appellant          :     In person
Third Appellant             :     In person
Respondent:     Mr P G McGowan

Solicitors:

First Appellant               :     In person
Second Appellant          :     In person
Third Appellant             :     In person
Respondent:     DLA Piper Australia

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

Commonwealth Bank of Australia v Bride [2004] WASC 177
Glew v Shire of Greenough [2006] WASCA 260
Glew v Shire of Greenough [2007] HCATrans 520
Hedley v Spivey [2012] WASCA 116
O'Connell v The State of Western Australia [2012] WASCA 96
Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231

JUDGMENT OF THE COURT: This is an appeal from a decision of Tottle J who ordered, pursuant to s 4 of the Vexatious Proceedings Restriction Act 2002 (WA)(the Act), that (in substance) the appellants are prohibited from instituting any legal proceedings in any court in Western Australia against the respondent in connection with the appellants' liability for the rates of a property in Katanning (Lot 29) or alleging fraud or unlawful conduct by the respondent in certain legal proceedings.
The appeal comes before the court on a registrar's notice to attend for the appellant to show cause why the appeal should not be dismissed, pursuant to r 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
There is also listed for hearing an application, dated 7 February 2017, by the appellants for an order that the appeal be referred to the High Court for determination, or, alternatively, that it be determined by an intermediate appellate court in another State or by an 'independent Judge and a Civil Jury'.

Background

The material facts were not in issue before the primary judge and are not in issue on this appeal.
The appellants were the registered proprietors of a number of properties in Katanning, including Lot 29, that were used for the purposes of various businesses conducted by them and related entities. The properties were mortgaged to the Australian Bank. In 1984, appellants defaulted on the mortgages and receivers were appointed by the Australian Bank. (The Australian Bank subsequently merged with the Commonwealth Bank of Australia, and for convenience we will refer to both simply as 'the Bank'.) Mr Bride became bankrupt.
Mr and Mrs Bride vacated Lot 29 in about January 1985 and did not resume possession until late 2005.
In 2004, EM Heenan J found that, since 1984, the appellants had commenced more than 60 proceedings concerning the validity and efficacy of the actions of the Bank and the appointment of the receivers and managers; the validity and conclusiveness of sales of properties under the securities to third parties; asserting proprietary claims against lands sold under mortgages to third parties who had since become the registered proprietors of those lands; and claiming damages for alleged breach of duty, negligence or fraud against the Bank, the receivers and managers, and others involved in the actions taken to enforce the securities.
His Honour found that the appellants, both in their personal capacities and in their capacities as trustees of a trust, had instituted and conducted vexatious proceedings. His Honour made an order pursuant to the Act, in substance, prohibiting the appellants from pursuing or instituting any legal proceedings in any court in Western Australia arising from or associated with the Bank's enforcement of its securities over the Katanning properties, including proceedings against those engaged in the enforcement of the securities or the resolution of the litigation and the disputes which followed: Commonwealth Bank of Australia v Bride [2004] WASC 177.
The application before the primary judge related to a subsequent stream, or perhaps more accurately torrent, of litigation by Mr Bride against the respondent in connection with Mr Bride's liability for rates for Lot 29. The history of that litigation is set out in the reasons of the primary judge and it is unnecessary for present purposes to canvass it in detail.
The litigation had its origins in proceedings commenced by the respondent against Mr Bride in 2004 in the Magistrates Court for the recovery of rates for Lot 29 from 1985. Mr Bride, among other things, maintained that he was not liable for the rates as the Bank was a mortgagee in possession and the Bank was therefore liable for the rates.
On 8 November 2005, the respondent successfully applied to strike out that defence on the basis that that issue had already been decided against Mr Bride. Judgment was entered for the respondent.
Mr Bride's appeal to the District Court was dismissed by O'Brien DCJ. Mr Bride appealed to this court from that decision. On 18 September 2008, before the appeal was heard, the parties consented to orders that the decision of O'Brien DCJ and the judgment of the Magistrates Court be set aside, and that the respondent's claim be remitted to the Magistrates Court for hearing.
In December 2008, Mr Bride filed a counterclaim in the Magistrates Court in the sum of $2.4 million. The counterclaim was transferred to the Supreme Court.
The respondent subsequently commenced two actions in the Supreme Court against Mr Bride claiming rates in respect of Lot 29. One action, commenced in 2009, was for the rates from 1985 to 2004, and the other, commenced in 2010, was for rates from 2005 when Mr Bride retook possession of the property. The actions were consolidated and it was ordered that Mr Bride's counterclaim be deferred pending the resolution of the respondent's claims. Mr Bride acknowledged that if the respondent's claims succeeded the counterclaim would fall away.
On 20 September 2011, Allanson J found for the respondent in its claims against Mr Bride for the rates. His Honour concluded that the Bank was never in actual possession and that as the registered proprietor Mr Bride was entitled to possession and therefore liable for the rates. Mr Bride's appeal to this court was dismissed, albeit on a different ground. It was held that the Bank was a mortgagee in possession, at least from 1989, but that Mr Bride was nevertheless liable for the rates. An application by Mr Bride for special leave to appeal to the High Court was dismissed.
Although Mr Bride had previously accepted that if the respondent's claim succeeded his counterclaim could not succeed, Mr Bride set about prosecuting the counterclaim. The counterclaim was dismissed by Chaney J on 26 September 2014. An appeal by Mr Bride to this court from that decision was dismissed.
Mr Bride then sought to review a decision of a registrar in relation to the taxation of the costs of the proceedings before Allanson J. The application was dismissed as an abuse of process, an application in substantially the same terms having previously been dismissed.
On 2 June 2015, Mr Bride commenced proceedings, apparently on behalf of himself, Mrs Bride and a trust, against the respondent and its solicitors claiming damages of $2.5 million. On 30 July 2015, the writ was struck out.
On 2 August 2015, Mr Bride issued an application in the Federal Court against the respondent and its solicitors. That was dismissed on 10 February 2016. An application for an extension of time within which to appeal from that decision was also dismissed.
The respondent subsequently commenced proceedings under the Act for an order prohibiting the institution by the appellants of further proceedings against the respondent in connection with the appellant's liability for the rates or alleging fraud or unlawful conduct by the respondent in certain legal proceedings. In the proceedings under the Act, Mr Bride applied to the primary judge for leave to issue subpoenas to the respondent and various solicitors. That application was dismissed, as was an appeal to this court from that decision.
As we have said, the primary judge ultimately made orders to the effect sought by the respondent. His Honour found that the appellants had instituted proceedings against the respondent that were vexatious and that unless prohibited from doing so would institute further such proceedings.
The primary judge found (at [65]) that the prosecution by the appellants of the following proceedings against the respondent was vexatious:
•A District Court action that, in 2004, EM Heenan J had found to be an abuse of process;
•the counterclaim, following the judgment in favour of the respondent in its claim for the rates;
•the appeal against the dismissal of the counterclaim, the appeal having been found to have no reasonable prospect of success;
•the application for review of the decision of the taxing registrar, the application having been found to be an abuse of process;
•proceedings brought by Mr Bride in 2015 seeking, in effect, to reagitate liability for the rates, the writ in those proceedings having been struck out;
•the application for leave to issue subpoenas, the application having no legitimate purpose and the documents sought being directed to reagitate issues already decided;
•the appeal against the refusal to grant leave to issue subpoenas, the appeal being dismissed on the ground that none of the grounds of appeal had a reasonable prospect of succeeding.
The primary judge was satisfied too that the fresh proceedings Mr Bride proposed to bring against the respondent were without merit ([69]).
His Honour further found that whilst Mrs Bride had not been involved in the litigation to the same extent as Mr Bride, it was likely she would institute vexatious proceedings against the respondent, its solicitors or representatives [70]. His Honour found that Mrs Bride had shown a willingness to participate in claims that have no reasonable prospect of success and that are otherwise an abuse of process [79].
The appellants have appealed from his Honour's decision.

The grounds of appeal

The grounds of appeal are in two parts. The first part is as follows:
1.The judgment is a nullity, the Court had no Constitutional jurisdiction, it was a hearing before a Court acting beyond its powers, in excess of its powers and outside its powers, by way of:
a)The wishes of the Western Australian public as expressed in a Referendum, conducted by the Commonwealth Government of Australia, on the removal of Her Majesty;
b)The Constitution Act 1889 of Western Australia, and or;
c)The Constitution of the Commonwealth of Australia which overrides all State Constitutions.
2.This matter is an Australian Constitutional matter, it is an Inter Se Matter that can only be dealt with and determined by the High Court of Australia.
3.The Western Australian Labour Government, against the sound advice of Mr P Foss and Ms S Walker, of the Liberal Party, on 1 January 2004 unlawfully removed Her Majesty as head of the Western Australian Supreme Court and other Courts.
4.The unlawful removal of Her Majesty on 1 January 2004 has to date never been rectified and the Courts in Western Australia are acting outside the perimeters of the Australian Constitution and are at law a 'Coram non Judice'.
5.If the Court was in fact acting within the scope of the both Constitutions then the Judge, Tottle J denied the Appellants their Constitutional right to Natural Justice, he acted beyond and in excess of his power and position in adversely determining unchallenged sworn statements of fact in relation to the 'Clean Hands' of the Respondent and the firm of McLeods.
There are then some 20 additional grounds of appeal relating to specific paragraphs of the reasons for decision of the primary judge. The grounds are very lengthy and it is unnecessary to set them out. In substance, they attack the finding of the primary judge that the proposed proceedings by Mr Bride are untenable.

The disposition of the notice to show cause

The recusal application

When the notice to show cause came on for hearing, Mr Bride (who appeared alone) submitted, in effect, that this court had no jurisdiction to hear the matters contained in the registrar's notice to attend or the appeal, essentially for the reasons set out in grounds 1 ‑ 4 of the grounds of appeal. He submitted that the appeal raised constitutional issues relating to the jurisdiction and powers of the Supreme Court that could only be determined by the High Court, to which the appeal (including the registrar's notice to attend) should be referred. We refused to refer the appeal to the High Court and proceeded to deal with the matters in the registrar's notice to attend. We said we would provide our reasons for doing so. Those reasons are the same as our reasons for dismissing grounds 1 ‑ 4 of the grounds of appeal.

Grounds 1 ‑ 4

These grounds seek to rehash arguments that have time and again been rejected: see, for instance, Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231; Glew v Shire of Greenough [2006] WASCA 260; Glew v Shire of Greenough [2007] HCATrans 520; O'Connell v The State of Western Australia [2012] WASCA 96; Hedley v Spivey [2012] WASCA 116. For the reasons set out in (among others) those earlier decisions, these grounds are entirely without merit.

Ground 5

No written submissions were provided in support of this ground. It is incomprehensible and meaningless.

The other grounds of appeal

These grounds seek to challenge the findings of the primary judge in [13](i), (ii), (iv), (v), (vi), (vii), (xi), (xii), (xiv), (xvii), (xviii), [47], [49], [50], [51], [52], [53], and [60] of his Honour's reasons for decision. None of the grounds have any merit.
First, the challenges to [13](i), (ii), (iv), (v),(vi), (vii), (xi), (xii) and (xiv) of the reasons are not capable of impugning his Honour's conclusion that the appellants had or would institute vexatious proceedings. Even if it were found that the primary judge was in error as alleged (of which we are not, however, persuaded) that could not alter the outcome.
Second, the challenge to the finding in [13](xvii) is a collateral attack on the earlier decision of Chaney J that the appellant's application for review of the decision of the taxing registrar was an abuse of process. The appellants seek to contend that Chaney J was wrong to so find. There was, however, no appeal from that decision and it cannot now be impugned by a collateral attack.
Third, the challenge to the finding in 13(xviii) is incomprehensible.
Fourth, in relation to [47], [49], [50], [51], [52], [53] and [60] of his Honour's reasons, the appellants seek to attack findings made as to the merits of Mr Bride's proposed proceedings against the respondent. The grounds are, like the other grounds, not in a proper form and it is difficult to make sense of them. However, as we understand them, the appellants contend, in substance, that the primary judge erred in finding that the proposed proceedings were untenable.
It is necessary then to turn to the substance of the proposed proceedings. Mr Bride contended before the primary judge that, on 18 September 2008, he entered into an oral agreement with the respondent (represented by its solicitor) that (a) the respondent would not pursue him for the rates on Lot 29 for the period up to 2005; (b) he would pay the rates from 2005 onwards; and (c) that his counterclaim would be remitted to the Magistrates Court. The following day, 19 September 2008, consent orders were made in the appeal proceedings then on foot, as described in […] above, in the following terms:
1.The appeal be allowed.
2.The order of Her Honour Judge O'Brien dated 6 July 2007 be set aside and in lieu thereof the following orders be made:
(a)The judgment entered in the Magistrate's Court in action 19525 of 2004 on 8 December 2005 be set aside.
(b)The order of Magistrate Pontifex in Magistrate's Court action 19525 of 2004, including the costs order, made on 8 November 2005 be set aside.
(c)The matter be remitted to the Magistrate's Court.
3.There be no order as to the costs of this appeal and the District Court appeal.
The proceedings Mr Bride proposed to bring against the respondent were based upon the following propositions:
a)the consent orders made on 19 September 2008 constituted a settlement of the respondent's claim for rates for the period up to 2005 and, as a consequence of either the consent orders or the consent orders in combination with the settlement agreement made on 18 September 2008, the respondent's claim for rates up to 2005 was settled in 2008 and the respondent was estopped from contending that the Bank was not a mortgagee in possession; and
b)the respondent's solicitors were guilty of professional misconduct in the course of conducting the Shire's claim before Allanson J by advancing the argument that the Bank was not a mortgagee in possession.
In concluding that such proceedings were untenable, the primary judge noted that:
1.On the evidence, at the time the alleged agreement was made Mr Bride had not lodged a counterclaim in the Magistrates Court and he did so not earlier than 23 December 2008, so that if, as he alleged, the respondent's claims against him had been settled on 19 September 2008, there was nothing to be remitted to the Magistrates Court.
2.When the matter was remitted to the Magistrates Court, Mr Bride did not allege in his defence that the respondent's claim for the rates up to 2005 had been settled and he did not raise such a defence in the trial of the respondent's claim for the rates before Allanson J or on the appeal from that decision.
3.In Mr Bride's statement of claim in the 2015 Supreme Court action, the agreement was described as relating only to the settlement of the appeal and the remittal of the matter to the Magistrates Court.
4.In an affidavit sworn by Mr Bride on 22 December 2015, there was no reference to the alleged agreement.
5.The first reference to it by Mr Bride as a defence to the respondent's claim was in an affidavit sworn on 5 January 2016.
6.Mr Bride's contention that the consent orders provided the basis of an estoppel was misconceived as the setting aside of the orders in the District Court and the Magistrates Court did not mean that the Bank had been held to be a mortgagee in possession but only that Mr Bride was permitted to raise that assertion in his defence to the respondent's claim, and moreover it was established by the subsequent decision of this court that Mr Bride was liable for the rates up to 2005 even if the Bank was a mortgagee in possession.
7.There was no basis for the appellant's allegation that respondent's solicitors were guilty of professional misconduct. The misconduct was alleged to lie in maintaining in the proceedings before Allanson J that the Bank was not a mortgagee in possession (a) when the respondent was estopped from doing so, and (b) when the solicitors had evidence that the Bank was a mortgagee in possession. In the first place, there was no estoppel and secondly, the evidence in question was not obviously contrary to the respondent's contention. In fact, on that evidence Allanson J had found that the Bank was not a mortgagee in possession. And while this court had reached a different view on that point, it had found that that did not alter Mr Bride's liability for the rates.

The primary judge found that Mr Bride's claim that there was an agreement settling the respondent's claim for the rates was implausible and that the proposed claims by the appellants were untenable and not based on reasonable grounds [59].
It is unnecessary to traverse the particular grounds upon which the appellants rely in seeking to impugn that finding. They are, as we have said, difficult to understand and in some cases simply incomprehensible. Suffice it to say that not only was his Honour's finding one that was reasonably open; it was the only one that was reasonably open. None of these grounds of appeal have any reasonable prospect of success.
The final ground of appeal is that the primary judge erred in making the orders against Mrs Bride, as Mrs Bride had not been involved in litigation since 2002. That ground again has no reasonable prospect of success. It is not the case that Mrs Bride has not been involved in litigation since 2002. As the primary judge observed, Mrs Bride was a plaintiff in the District Court action that in 2004 was found by EM Heenan J to be an abuse of process, and she had signed a 'counterclaim' in the proceedings below containing the claim that Mr Bride sought to bring against the respondent. We would add that Mrs Bride was also a party to the application to issue subpoenas before the primary judge and the appeal from his Honour's decision, an appeal that was dismissed on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. In the circumstances, it was clearly open to the primary judge to infer ([70]) that it is likely Mrs Bride would institute vexatious proceedings against the respondent, its solicitors or representatives.

Conclusion

None of the grounds of appeal has a reasonable prospect of succeeding and the appeal should therefore be dismissed.
It follows that the appellants' application of dated 7 February 2017 must also be dismissed. We should add that the application was in any event misconceived and had no prospect of success.