Bride v Shire of Katanning
[2015] WASCA 77
•21 APRIL 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BRIDE -v- SHIRE OF KATANNING [2015] WASCA 77
CORAM: NEWNES JA
MURPHY JA
HEARD: 5 MARCH 2015
DELIVERED : 21 APRIL 2015
FILE NO/S: CACV 136 of 2014
BETWEEN: EDWARD JAMES BRIDE
Appellant
AND
SHIRE OF KATANNING
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :CHANEY J
Citation :SHIRE OF KATANNING -v- BRIDE [No 4] [2014] WASC 343
File No :CIV 2994 of 2009
Catchwords:
Appeal against dismissal of application to amend defence and counterclaim - Appeal against dismissal of counterclaim - Whether any of the grounds of appeal has a reasonable prospect of succeeding - Whether the appellant failed to comply with pt 5 r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA) - Whether the appeal should be dismissed
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), pt 5 r 32, r 43(2)(g)(i)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr P Wittkuhn
Solicitors:
Appellant: In person
Respondent: McLeods Barristers & Solicitors
Case(s) referred to in judgment(s):
Bride v Shire of Katanning [2008] WASC 131
Bride v Shire of Katanning [2013] WASCA 154
Shire of Katanning v Bride [No 2] [2011] WASC 248
Shire of Katanning v Bride [No 4] [2014] WASC 343
REASONS OF THE COURT:
Overview
These reasons essentially deal with the question of whether the appellant's appeal should be dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding.
The appeal arises out of a decision of the primary judge (Chaney J) in proceedings in which the respondent (the Shire) had sued the appellant (Mr Bride) for unpaid rates on certain land in Katanning (lot 29). The primary judge had dismissed the appellant's application to amend his defence and counterclaim, and to join third parties - a bank and a firm of solicitors - to the proceedings. The primary judge also dismissed his counterclaim in the proceedings.
As explained in detail below, the appellant has been a party to a great deal of litigation over many years. His application to amend his defence and counterclaim arose after he had failed, including on appeal, to resist the Shire's claims for rates, and judgment had been entered in favour of the Shire. The proposed claim against the bank and the solicitors arose against the background that in connection with earlier litigation concerning rates and lot 29, certain orders had been made, in 2004, under the Vexatious Proceedings Restriction Act 2002 (WA) prohibiting the institution of proceedings against the bank and the solicitors.
For the reasons which follow, none of the grounds of appeal from the primary judge's decision has any reasonable prospect of succeeding and the appeal should be dismissed.
The registrar's notice to attend
This matter was listed for hearing on 5 March 2015 pursuant to a registrar's notice 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) (the Court of Appeal Rules), on the basis that none of the grounds of appeal has a reasonable prospect of succeeding, or alternatively pursuant to r 43(2)(g)(ii) for failure to comply with r 32.
Part 5 r 32 of the Court of Appeal Rules provides, relevantly, amongst other things, that the grounds in the appellants' case must not merely allege that the primary court erred in fact or in law; and that the appellant's written submissions must be expressed so as to convey the substance of each ground clearly and as succinctly as possible.
Background
The following background at [8] ‑ [14] below is taken from the unchallenged findings in the primary judge's reasons.[1]
[1] Shire of Katanning v Bride [No 4] [2014] WASC 343 [3] ‑ [24].
In 1994, the Shire of Katanning commenced proceedings in the local court against Mr Bride for unpaid rates on lot 29. Mr Bride lodged a counterclaim. The Shire discontinued its proceedings, but Mr Bride continued with the counterclaim. In December 1995, the magistrate struck out Mr Bride's counterclaim. In September 1996, Mr Bride appealed against the decision to strike out his counterclaim, but the appeal was dismissed.
In November 2004, the Shire commenced proceedings, again in the local court, against Mr Bride claiming unpaid rates in respect of lot 29. Mr Bride's defence was struck out and judgment was entered against him, in favour of the Shire, for $12,858.28. Mr Bride appealed to the District Court (O'Brien DCJ). The appeal was dismissed. Mr Bride then sought leave to appeal that decision. On 4 July 2008, Martin CJ granted him leave to appeal. Following the grant of leave, the decisions of O'Brien DCJ and the magistrate were set aside and the matter returned to the Magistrates Court for determination. Mr Bride then filed a defence and counterclaim in the Magistrates Court. In the counterclaim he claimed, amongst other things, damages of $2.4 million.
On Mr Bride's application in 2009, the Magistrates Court proceedings were transferred to the Supreme Court. These proceedings, in the Supreme Court, became CIV 2994 of 2009. Mr Bride filed versions of a counterclaim, including a minute filed (with leave) on 30 September 2009, which were treated as being filed in CIV 2994 of 2009.
The action was managed by Martin CJ in the CMC list. Martin CJ ordered that the counterclaim be deferred pending determination of the Shire's claim. Mr Bride acknowledged that should the Shire succeed in its claim for rates, then the counterclaim would fall away. Martin CJ said:
Then it just seems to me that the most sensible thing is to try the claim for the rates and leave the counterclaim over, because if the Shire succeeds then the counterclaim is history. If the Shire does not succeed, then we can worry about the counterclaim.
In 2010, the Shire commenced further proceedings in the Supreme Court for unpaid rates, presumably in respect of rates levied and unpaid after the commencement of the Magistrates Court action. These proceedings were designated CIV 2853 of 2010. Mr Bride also filed a counterclaim in CIV 2853 of 2010. Martin CJ struck out three paragraphs of the counterclaim, but without prejudice to Mr Bride's ability to raise the same issues in CIV 2994 of 2009 (in the event that Mr Bride succeeded in resisting the Shire's claims for unpaid rates).
In the result, there were two actions in the Supreme Court by the Shire for unpaid rates - CIV 2994 of 2009 and CIV 2853 of 2010. The Shire's claim in CIV 2994 of 2009 was effectively incorporated in the claim for the total outstanding amount of rates claimed in CIV 2853 of 2010. The two actions went to trial before Allanson J. Allanson J found in favour of the Shire.[2] Although the judgment for the total money sum of all rates claimed was pronounced in CIV 2853 of 2010, judgment was also entered for the Shire in CIV 2994 of 2009.
[2] Shire of Katanning v Bride [No 2] [2011] WASC 248.
Mr Bride appealed. Mr Bride's appeal was dismissed. The Court of Appeal also found that Mr Bride was liable to the Shire for the unpaid rates claimed by the Shire, albeit on a different basis to Allanson J.[3]
[3] Bride v Shire of Katanning [2013] WASCA 154.
Accordingly, the Shire's claims for unpaid rates in CIV 2994 of 2009 and CIV 2853 of 2010 in respect of lot 29 had been finally determined in favour of the Shire.
Nevertheless, in the primary court, Mr Bride subsequently sought leave to file an 'amended defence and counterclaim' in the Shire's action in CIV 2994 of 2009. It is to be recalled that in its then current form (filed 30 September 2009) as Mr Bride had, in effect, acknowledged, and as Martin CJ had recorded, the counterclaim was dependent upon him successfully resisting the Shire's claim for unpaid rates. He had failed in that regard both before Allanson J and in the Court of Appeal.
The broader context and vexatious proceedings orders
As noted above, Martin CJ granted Mr Bride leave to appeal against the decision of O'Brien DCJ on 4 July 2008, when the Shire's claim and Mr Bride's counterclaim were in proceedings in the Magistrates Court. His Honour in delivering reasons in respect of that application[4] adverted to the wider context of the litigation and made the following observations:
[4] Bride v Shire of Katanning [2008] WASC 131.
Mr Bride and his wife have been parties to a large number of proceedings in the courts of this State, which have varying degrees of connection and association with a dispute between Mr and Mrs Bride and Australian Bank Ltd and its successor, Commonwealth Bank of Australia, and receivers and managers which Australian Bank Ltd appointed in respect of land and a business owned by a trust with which Mr and Mrs Bride were associated. As a result of those proceedings, on the application of the Commonwealth Bank of Australia, on 17 August 2004, EM Heenan J made a number of orders pursuant to the Vexatious Proceedings Restriction Act 2002 (see generally Commonwealth Bank of Australia v Bride [2004] WASC 177). Those orders included orders staying various proceedings which were then on foot in the Supreme Court and the District Court.
Mr and Mrs Bride were also prohibited from:
'instituting any action, proceeding, appeal or other application in any court in Western Australia against:
(a)the [Commonwealth Bank of Australia]
(b)Australian Bank Limited (ABL)
(c)the partners and employees of Peat Marwick Mitchell, KMG Hungerfords, KPMG and their successors in title
(d)all subsequent purchasers of
(1) …
…
(3)portion of Kojonup Location 255 and Lot 1 on diagram 9860 being the whole of the land in certificate of title volume 1322 folio 461 (Winery Land)
…
(e)the legal, financial and real estate advisers and/or agents of any of the abovenamed parties.'
The prohibition upon the commencement of proceedings was limited to certain subjects specified in the order.
The Shire of Katanning (the Shire), which is the respondent to these proceedings, commenced proceedings in the local court claiming from Mr Bride outstanding rates and charges in respect of the winery land. In those proceedings, the winery land is described by reference to its current title particulars, which are to the effect that it is Lot 29 on diagram 62969, being the whole of the land comprised in certificate of title volume 1682 folio 357. However, it is common ground that this land is the same as the
land described as the winery land in the order of EM Heenan J to which I have referred.
In his defence to the Shire's claim for rates and charges, Mr Bride denied that he was ever in possession of the winery land, and asserted that at all material times, the mortgagee of the land, being Australian Bank Ltd and/or its successor, the Commonwealth Bank of Australia, were in control of or in possession of the land [2] ‑ [5].
Mr Bride's application to the primary judge to file an amended defence and counterclaim
Mr Bride applied for leave to amend his defence and counterclaim in CIV 2994 of 2009 in terms of a minute filed 20 May 2014. He also applied for leave to join the Commonwealth Bank of Australia (Commonwealth Bank) and the Commonwealth Bank's solicitors, Herbert Smith Freehills (Freehills), as third parties to the action.
Mr Bride's minute of amended defence and counterclaim
Mr Bride's minute of 'amended defence and counterclaim' filed on 20 May 2014 had, in effect, three components:
(a)allegations purportedly with respect to the Shire;
(b)allegations purportedly with respect to the Commonwealth Bank;[5] and
(c)allegations purportedly with respect to Freehills.
[5] The Commonwealth Bank was found to be the successor of the Australian Bank. It is unnecessary to distinguish between the two for the purposes of these reasons, and the word 'bank' is used from time to time to refer to either or both as the context requires.
The substance of Mr Bride's proposed counterclaim appears to be that the Shire pursued him for the payment of rates in respect of lot 29 for the period from 1987 to October 2005 when it knew that the Commonwealth Bank was mortgagee in possession throughout that period and that it was the Commonwealth Bank, not Mr Bride, who was liable for the rates. The Shire is alleged to have done so pursuant to a fraudulent conspiracy between the Shire and its solicitors, and the Commonwealth Bank and its solicitors, to pretend that the Commonwealth Bank were not mortgagees in possession over that period (par 30). Mr Bride seeks to rely upon the judgment of the Court of Appeal in Bride v Shire of Katanning [2013] WASCA 154 ('2013 Appeal Judgment') to establish that the Commonwealth Bank were mortgagees in possession from 1987 to October 2005.
The plea against the Shire
The purported pleas against the Shire were set out in paragraphs 1 ‑ 47 of the minute, although as the primary judge observed, paragraphs 3 ‑ 27 do not appear to relate to any claim against the Shire (save that par 27 is picked up again in par 31). Paragraphs 5 ‑ 15 cover alleged events going back to 1978, including the acquisition of lot 29, the mortgage of the land, the appointment of receivers, and matters relating to Mr Bride's bankruptcy in the 1980s. Paragraphs 16 ‑ 21 also deal with alleged events concerning Mr Bride's bankruptcy, including allegations that a certain trustee in bankruptcy distributed a 'false and fraudulent List of Unsecured Creditors'. Paragraphs 23 ‑ 26 include allegations in relation to events in 1987, and in relation to various proceedings between various parties in 1996, 2002 and 2004. Paragraph 27 pleads, inter alia, that the Court of Appeal in the 2013 Appeal Judgment [6] had found, in effect, that the Australian Bank had been a mortgagee in possession of lot 29 from 1987 through until 2005, and that a certain solicitor had sworn a false affidavit in 1994.
[6] Bride v Shire of Katanning [2013] WASCA 154.
Paragraphs 28 ‑ 46 involve a miscellany of matters, a number of which make no complaint against the Shire (paragraphs 28, 31, 32 and 33). Some paragraphs assert, in effect, that persons other than the Shire acted fraudulently or dishonestly, and/or that the Shire itself received fraudulent advice (paragraphs 32, 33, 38 and 41). Other paragraphs make bald allegations of fraud and dishonesty by the Shire where the particulars provide no reasonable grounds for the allegations made (paragraphs 35, 36, 39, 41 and 42). Another plea alleges that the Shire trespassed on lot 29 in September 2007 (par 43). The other pleas allege, in effect, that the Shire made false claims for unpaid rates (paragraphs 44 ‑ 46).
Integral to the pleas of fraud and dishonesty, as confirmed by the appellant at the hearing of this matter on 5 March 2015, was the claim that in the 2013 Appeal Judgment[7] this court found as a fact that the Australian Bank had been a mortgagee in possession of lot 29 from 1987 until 2005.
[7] Bride v Shire of Katanning [2013] WASCA 154.
The pleas against the Shire in this part of the minute culminated in the plea in par 47:
In the premises from about January 1987 until about October 2005 the Shire and their solicitors have:
A.Falsely pursued the Plaintiff for rates and charges said to be owed by the Plaintiff on Lot 29 when they were in receipt of documents that showed the Bank was at the relevant time a Mortgagee in Possession of Lot 29.
B.Conspired with the bank and the bank's solicitors to obstruct, prevent, pervert and defeat the course of justice and the Defendant's efforts to;-
Have the bank deliver to the various Courts the 'Deed of Appointment' of DJ Young and C Fear as 'Agents' of the bank, mortgagee in possession of the land.
C.The Shire and their solicitors have with wilful intent to deceive the Court and to obstruct the Plaintiff have blocked and opposed all the Plaintiff's efforts and attempts to have a judicial ruling on the subject of mortgagee in possession of Lot 29 [sic].
Following par 47, Mr Bride claimed against the Shire:
1.General damages of $2.4 million.
2.The conduct of the Shire has caused the Plaintiff, the Brides as Trustees of the Trust and beneficiaries of the Trust to:
(a)To suffer loss and damage;
(b)Stress, trauma and anguish;
(c)Extreme embarrassment.
3.Aggravated damages by reason of the contumelious conduct of the Shire and of the Shire's solicitors.
4.Further or alternately, damages for fraudulent misrepresentation.
5.Special damages to be assessed, a full schedule of the Special Damages will be provided.
6.Interest on the amount found to be due to the plaintiff, at such rate and for such period as the Court thinks fit pursuant to the equitable jurisdiction of the Court [sic].
The plea against the Commonwealth Bank
In relation to the purported claim against the Commonwealth Bank, the essence of the proposed claim appears to be that the bank 'with intent to mislead the Shire and the Courts falsely and fraudulently pretended that they were never mortgagees in possession of lot 29' (par 4, page 19). Again, it is a central aspect of the claim (par 2, page 18) that in the 2013 Appeal Judgment, the Court of Appeal had found that at all material times between January 1987 up to October 2005, the bank was the mortgagee in possession of lot 29.
Mr Bride claimed against the Commonwealth Bank:
1.General damages to be assessed.
2.Aggravated damages to be assessed.
3.Further and alternately, damages for fraudulent misrepresentation.
4.Special damages to be assessed, a full schedule of the Special Damages will be provided.
5.Interest on the amount found to be due to the Plaintiff, at such rate and for such period as the Court thinks fit pursuant to the equitable jurisdiction of the Court.
6.The return of the Certificate of Title to Lot 29, free of encumbrances.
7.Full particulars of the loss and damage will be provided prior to the Trial [sic].
The plea against Freehills
In relation to the claim against Freehills, again a central plank in the allegations was the allegation to the effect that in the 2013 Appeal Judgment, the Court of Appeal had found that the bank was in possession of lot 29 from 1987 until 2005 (par 4, page 26).
The claim against Freehills was in the following terms:
1.General damages to be assessed.
2.Aggravated damages to be assessed.
3.Further and alternately, damages for fraudulent Misrepresentation.
4.Special Damages to be assessed, a full schedule of the Special Damages will be provided.
5.Interest on the amount found to be due to the Plaintiff, at such rate and for such period as the Court thinks fit pursuant to the equitable jurisdiction of the Court.
The plaintiff further claims;-
10.At all material times to this action [certain legal practitioners] were employed by the proposed Third Defendant as solicitors.
11.At all material times to this action the said [lawyers] were obliged to uphold the standards of 'professional conduct', including the duty to the court to arrive at a proper determination of the matters before the Court. They were under a duty not to mislead the Court including the duty not to provide and rely upon perjured evidence as set out in the paragraphs above sic].
Preliminary observations on Mr Bride's proposed amended counterclaim in the minute of 20 May 2014
Before turning to the primary judge's decision, it is appropriate to record at this point that Mr Bride's proposed counterclaim revealed a fundamental misconception of the court's reasons in the 2013 Appeal Judgment.
There was no finding to the effect that the Australian Bank was in possession of lot 29 throughout the period between 1987 and October 2005. Rather, the court found in the 2013 Appeal Judgment, relevantly, that:
(a)the Australian Bank was in possession of lot 29, at the latest, by 13 September 1989;[8]
(b)by 2005, at the latest, the Australian Bank was no longer in possession of lot 29;[9] and
(c)from 2005 Mr Bride was either in possession of lot 29 as the holder of an estate in freehold in possession, or was entitled to possession when no one else was in possession.[10]
[8] Bride v Shire of Katanning [2013] WASCA 154 [23], [134], [139].
[9] Bride v Shire of Katanning [2013] WASCA 154 [23], [134], [139).
[10] Bride v Shire of Katanning [2013] WASCA 154 [24] ‑ [25], [67], [140] ‑ [142].
Accordingly, there was no finding that the Australian Bank was in possession of lot 29 throughout the period between 1989 and 2005, let alone throughout the period 1987 ‑ 2005, as asserted by Mr Bride.
Moreover, the fact that the bank had been in possession at some time was irrelevant to the disposition of the 2013 Appeal Judgment. Mr Bride's possession or entitlement to possession of lot 29 when no one else was in possession from 2005, made him liable for the rates in respect of lot 29.
Further, it is to be noted that Mr Bride pleaded that for the first seven years of the period in respect of which he complained (1987 ‑ December 1994), the Shire's belief (insofar as that might be relevant) that the Australian Bank was not in possession, was a plausible belief.
As to the next 11 years of the period in respect of which Mr Bride complained (December 1994 ‑ October 2005), the Court of Appeal in the 2013 Appeal Judgment did not find that he was not in possession throughout that period. Nor did it find that the bank was in possession throughout that period. All that had been found, relevantly, in the 2013 Appeal Judgment, with respect to possession by Mr Bride, was that by 2005 (and not just by October 2005) he was either in possession, or entitled to possession when no one else (including the bank) was in possession.
Further, even if it had been found (and it had not) that the Australian Bank was in possession between December 1994 and 2005, a finding to that effect could not in itself support a plea of fraud or dishonesty against the Shire or anyone else.
The primary judge's decision not to grant leave to Mr Bride to file the minute of amended defence and counterclaim
In relation to the leave to amend the defence, his Honour said:
Mr Bride seeks to amend his defence. The Shire's action for rates (to which the defence relates) has been finally determined. There is no basis to reopen that claim on the basis of an amended defence. The application to amend the defence is misconceived and must be dismissed [26].
In relation to Mr Bride's claim against the Shire, and the claim that the Court of Appeal had found that the Australian Bank was in possession of lot 29 at all times up to October 2005, his Honour said:
It should be noted at this point that the Court of Appeal did not find that the Australian Bank or Commonwealth Bank was in possession of Lot 29 at all times up until October 2005. What the Court found was that, by 2005 at the latest, the Australian Bank was no longer in possession of Lot 29 for the purposes of the LG Act.
Edelman J considered that that conclusion was amply demonstrated by the trial Judge's findings of fact being:
1.that there was no evidence of any activity by the Australian Bank in relation to the land after 1989;
2.that in the 1994 proceedings between the Shire and Mr Bride, the Commonwealth Bank and Australian Bank had both denied that they had taken possession; and
3.that in the years since 1994, the Australian Bank and the Commonwealth Bank had maintained the position that they were not and had not been in possession.
It was not necessary for the Court of Appeal to determine precisely when the Australian Bank or Commonwealth Bank ceased to be in possession because Mr Bride was liable for rates because he was certainly the owner by 2005, so that he became liable for unpaid rates as at that date, regardless of who had been the owner of Lot 29 up until that date.
Mr Bride's contentions in his 20 May minute seem to rest heavily on the proposition that the Court of Appeal found the Australian Bank or Commonwealth Bank to have been in possession up until October 2005, so that any contention by the Shire prior to that time that Mr Bride was the owner for the purposes of the LG Act was 'untenable'. That proposition does not follow from the Court of Appeal's decision [32] ‑ [35].
Having reviewed the contents of Mr Bride's minute of defence and counterclaim (described by the primary judge as the '20 May minute'), his Honour concluded:
No facts are pleaded in the 20 May minute which amount to the pursuit of Mr Bride by the Shire for unpaid rates up until November 2004. The action commenced by the Shire in November 2004 was ultimately successful. It cannot be said that that action was commenced without a proper foundation or was in any way an abuse of process. No arguable cause of action is disclosed against the Shire. Furthermore, the pleading against the Shire in the 20 May minute involves numerous allegations against various persons and organisations much of which does not appear material to any claim against the Shire. It is very difficult to follow and is embarrassing in the sense that it does not clearly identify the case the Shire is required to meet. Mr Bride's application for leave to amend the defence and counterclaim in terms of the 20 May minute should be refused [41].
The primary judge's decision to strike out and dismiss Mr Bride's counterclaim filed 30 September 2009
The Shire applied by summons dated 9 April 2014 to strike out Mr Bride's counterclaim in CIV 2994 of 2009, without leave to replead, and for an order that the counterclaim be dismissed. The grounds for the application, as alleged, were that the counterclaim discloses no reasonable cause of action or is scandalous and vexatious.
His Honour took the relevant counterclaim to be the minute of proposed counterclaim filed 30 September 2009.
In the minute counterclaim filed 30 September 2009, Mr Bride pleaded:
1.The defendant avers that the [Shire] and its [solicitors] … have caused [Mr Bride] to suffer economic loss and general damage for pain and suffering as a result of one or more or all of the following causes of action, namely;-
1A.a malicious pursuit of the claim by [the Shire] and it well‑knowing that [Mr Bride] was never indebted to the [Shire] in the sum alleged by the [Shire] summons or at all.
2.Further and/or alternately to paragraph 1 above [Mr Bride] avers that the [Shire] has breached its statutory duty.
3.Further and alternately to paragraphs 1 and 2 above [Mr Bride] avers that the [Shire] has conspired with other to afflict economic duress on [Mr Bride].
4.As a result of the malicious prosecution and/or breach of statutory Duty and/or Tort of economic Duress by the [Shire] [Mr Bride] has suffered loss and damage [sic].
As Chaney J observed, the substance of the counterclaim was that the Shire had wrongly pursued Mr Bride for rates when, it was alleged, 'he was never indebted to the Shire in the sum claimed against him or at all' [42].
In relation to the Shire's application to strike out Mr Bride's counterclaim of 30 September 2009, his Honour said:
Mr Bride accepts that he took possession of Lot 29 in 2005. His only basis of complaint could be that Local Court action 19525/2004 was commenced in November 2004, before he retook actual possession, and that prior to his taking possession, the Shire had no reasonable basis to commence proceedings against him. That argument is untenable in light of the history of the matter. [The Court of Appeal]'s conclusion that the Commonwealth Bank was no longer in possession by 2005 was at least in part based upon the position asserted by the bank since 1994, and the fact that there was no evidence of any activity by the bank after 1989. A number of decisions had been made in various courts in the years leading up to 2004 to the effect that the bank was not in possession of Lot 29. The Shire cannot be said to have had no basis to assert that Mr Bride, who remained at all times the registered proprietor of Lot 29, was not liable for rates in 2004.
The claim is unsustainable given the judgment entered against Mr Bride on the claim for rates, and the Court of Appeal's dismissal of the appeal against that judgment. It was precisely because the maintenance of the counterclaim was dependent upon a successful defence to the claim for rates that Martin CJ deferred consideration of the counterclaim until after trial of the primary claim. The counterclaim should, therefore, be dismissed [43] ‑ [44].
The primary judge's decision to dismiss Mr Bride's application to join the Commonwealth Bank and Freehills as parties
In regard to Mr Bride's application for joinder, his Honour said:
The dismissal of the counterclaim brings these proceedings to an end. It would be wholly inappropriate to join other parties to a counterclaim when the proceedings as between the Shire and Mr Bride have been concluded. Even if that were not the case, I would not have given leave to join additional parties to the action on the basis of 20 May minute because of the confused way in which the pleading is presented. Furthermore, there may well be limitation questions which would need to be considered, if the claims were to be allowed, given that the conduct on the part of the solicitors mostly is said to have occurred some 20 years ago, and the conduct by the banks is said to have occurred from the late 1980s through to around 2002. There is a further difficulty which confronts Mr Bride in relation to bringing claims against the Commonwealth Bank and its legal advisers, being that an order was made and published in the Government Gazette on 18 January 2005 under the Vexatious Proceedings Restriction Act 2002 (WA). That order prohibits Mr and Mrs Bride either personally or in their capacity as trustees of the Pinwernying Family Trust from instituting any proceedings against the Commonwealth Bank, the Australian Bank, Peat Marwick Mitchell, KMG Hungerford's, KPMG and their successors in title, and the legal advisers of any of those parties, in relation to the securities which underlay the events the subject of Mr Bride's proposed counterclaim. Leave under that Act would be required before the Commonwealth Bank or Freehills could be joined. The proposed joinder is thus not presently permissible in any event [45].
Mr Bride's grounds of appeal to this court and his submissions
In his grounds of appeal to this court, Mr Bride made the following allegations which are quoted verbatim:
1.The Trial Judge erred in law, against the Rules of the Court and against his expressed opinion in refusing to allow the Appellant to amend and file the Counter Claim dated 20 May 2014.
2.The Trial Judge erred in law and against the Rules of the Court in refusing to allow [t]he [Commonwealth Bank] and [Freehills] to be joined as Second and Third Defendants to the action when:
(a)at paragraph 29 His Honour identifies the Appellant's basis of the claim against the bank and then erred in law in that he exonerated the bank without hearing the evidence by way of summary judgment;
(b)at paragraph 29 his Honour identified the proposed cause of action against the [Commonwealth Bank] … and then erred in law and against the Rules of the Court in that he exonerated the bank by way of summary judgment without hearing the evidence;
(c)at paragraph 30 the trial judge erred in fact in relation to 'two lawyers' being [named lawyers] in that the two layers falsely and fraudulently asserted 'that the Commonwealth Bank had not been in possession of the land'. The false assertions were documented, particularised and recognised by the Court of Appeal.
NOTWITHSTANDING
3.The trial judge erred in law, the Rules of The Court and established authorities in that he dismissed the Defence, amended Counter‑claim and the application to join the parties.
4.The Trial Judge at paragraph 31 erred in law and fact in acknowledging the Proposed Pleadings, pleaded and particularised, Fraud, Dishonesty:
(a)it is pleaded that from December 1994 the Shire was in possession of information demonstrating that the position of the [Commonwealth Bank] was not acting as Mortgagee in Possession of Lot 29 … was untenable;
(b)the Shire, their solicitors, … the bank and … Freehills have with intent to cause the Appellant to suffer a loss and damage conspired by knowingly, dishonestly and fraudulently pretending that the bank were not Mortgagees in possession of lot 29 from 1987 up to 2005.
5.His Honour erred in law in the [sic] he then he summarily dismissed the proposed actions against the intended parties against established law, legal authorities and the Rules of the Court without hearing the evidence.
6.The Trial Judge at paragraph 36 of the Reasons for Judgment erred in fact and in law in that at paragraph 32 of the Proposed Pleadings it is specifically pleaded that [a solicitor] committed an act of perjury and further particularised at paragraphs A to C and without hearing the evidence he summarily dismissed the action.
JOINER OF THE PARTIES
7.The Trial Judge erred in law in that the limitation questions in joining the Bank and [Freehills] do not apply.
NEW EVIDENCE
8.As from about 3 September 2014 the Appellant became aware the [solicitor] for the Shire … had interviewed [a] witness … prior to the trial before Allanson J.
9.The purpose of the interview … as explained by [the solicitor] to Registrar Dixon was to obtain a Witness Statement … prior to the Trial.
10.[The solicitor] was unsuccessful in his attempts to obtain a Witness Statement … that would have been contrary to the testimony of [the witness] at Trail [sic] and contrary to the documented evidence in the hands of the Court and in the possession of [the solicitor].
11.It follows as a matter of fact and law that the conduct and intention of [the solicitor] was grossly unprofessional and criminal in that:
(a)[the solicitor] attempted to obtain a Witness Statement … that would have been false and misleading;
(b)he conducted a three day trial before Allanson J when he knew that his argument in relation to the question of the bank being a mortgagee in Possession of Lot 29 … was flawed, untenable, false and intended to mislead the Court [sic].
In his written submissions in the appellant's case, Mr Bride said:
1.The Application to amend the Defence, the counterclaim and to join parties was made within the rules of the Court and established legal authorities.
2.His Honour recognised in the pleadings Fraud, Misleading the Court, Perjury by an Officer of the Court and then summarily dismissed the Appellant's Counter‑claim, against the Rules of the Court, established legal authorities and judicial fairness without hearing the evidence.
3.His Honour erred in Natural Justice and procedural fairness in that he took issue with the Appellant relying upon the findings of the Court of Appeal when that Court made its findings on the evidence that was before the Court [sic].
In his oral submissions to this court, Mr Bride emphasised that under O 18 r 2(3) of the Rules of the Supreme Court 1971 (WA) (RSC), a counterclaim may proceed notwithstanding that judgment is given for a plaintiff in the action.
Disposition
Ground 1 expresses a bare assertion of error. It has no reasonable prospects of success.
Grounds 2(a) and (b) merely refer to [29] of the primary judge's decision, where his Honour recounted the content of aspects of the proposed counterclaim against the Commonwealth Bank. Ground 2(c) merely refers to [30] of the primary judge's reasons in which his Honour recounted aspects of the proposed counterclaim against Freehills. Ground 2 has no reasonable prospects of succeeding in that it does not address the judge's findings to the effect that:
(a)once the counterclaim against the Shire had been dismissed, the proceedings were brought to an end and it would be wholly inappropriate to join other parties to a counterclaim when those proceedings had been concluded;
(b)leave should not be granted in any event because of the confused way in which the pleading was presented; and
(c)Mr Bride is prohibited, by an order made under the Vexatious Proceedings Restrict Act 2002 (WA), from instituting proceedings against the Commonwealth Bank or Freehills without leave, and he did not have leave [45].
Ground 3 is a bare assertion of error of law. It has no reasonable prospect of success.
Ground 4 merely refers to the primary judge's reasons at [31], where his Honour recounted parts of the content of the proposed counterclaim. It does not address Chaney J's (correct) finding that in the 2013 Appeal Judgment the Court of Appeal did not find that the bank was in possession of lot 29 throughout the period 1987 ‑ 2005. This ground has no reasonable prospect of succeeding.
Ground 5 is again a bare assertion of error of law. It has no reasonable prospect of succeeding.
Ground 6 refers to [36] of the primary judge's reasons, where his Honour said:
Paragraph 32 of the 20 May minute pleads what is said to be 'perjury' by reason of the solicitor for the banks having possession of a document but refusing to produce the document on the basis of privilege. That plea is misconceived and in any event does not relate to any claim against the Shire.
There is no arguable error in his Honour's reasoning. This ground has no reasonable prospect of succeeding.
Ground 7 has no reasonable prospect of succeeding. It alleges, in effect, that the primary judge erred in refusing joinder on the basis of limitation questions. His Honour said at [45] that, 'there may well be limitation questions which would need to be considered, if the claims were to be allowed, given that the conduct on the part of the solicitors mostly is said to have occurred some 20 years ago, and the conduct by the banks is said to have occurred from the late 1980s through to around 2002'. In other words, his Honour foreshadowed a potential limitation difficulty if leave were to be given, but his Honour did not dismiss the application on the basis that the proposed claims were statute barred. Rather, his Honour effectively dismissed the application on the basis of the other matters referred to in [45] of his reasons, summarised in [50] above.
Grounds 8 ‑ 11 allege, in effect, that the appellant became 'aware' on or about 3 September 2014 that a solicitor for the Shire had interviewed a witness prior to the proceedings before Allanson J. The hearing before his Honour was on 4 June 2014. Judgment was delivered on 26 September 2014, but there was no application to his Honour to adduce further evidence after 3 September 2014 and prior to judgment delivery on 26 September 2014. Nor is there any application to adduce additional evidence on the appeal. More fundamentally, the grounds on their face are entirely without merit and make scurrilous accusations without a proper basis. Grounds 8 ‑ 11 have no reasonable prospect of succeeding.
In relation to the submissions filed in support of the appellant's case, they plainly do not conform with pt 5 r 32 of the Court of Appeal Rules.
Mr Bride's contention that a counterclaim 'may' be proceeded with notwithstanding that judgment is given in the action (O 18 r 2(3) RSC) is not to the point. The question before the primary judge was whether this particular counterclaim should proceed. His Honour was, with respect, correct to conclude that the counterclaim filed 30 September 2009 disclosed no reasonable cause of action and should be dismissed. Similarly, Mr Bride has no arguable basis for contending that his Honour's decision to refuse leave to amend the defence and counterclaim was erroneous.
A final observation should be made. Mr Bride, at the hearing on 5 March 2015, said that there was an administrative error in the court below in that the hearing on 4 June 2014 had been listed as a 'strategic conference'. The error was corrected on the day before the hearing when the parties were informed that the matter would be listed for a special appointment to deal with the application to strike out and dismiss the counterclaim and the Shire's application for summary judgment. Mr Bride implied that he was not ready to deal with the hearing on 4 June 2014, but he did not apply for an adjournment and there was no ground of appeal to the effect that he was not given a proper opportunity to be heard. In any event it appears from the transcript before Chaney J that, prior to the hearing, both parties had provided written submissions dealing with the respective applications before the court. The hearing proceeded before Chaney J for approximately two hours.
Conclusion
The appeal should be dismissed because none of the grounds of appeal has a reasonable prospect of succeeding and, or alternatively, because the appellant has failed to comply with pt 5 r 32 of the Court of Appeal Rules.
The court will order that the appeal be and is hereby dismissed.
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