Bride v Shire of Katanning [No 2]

[2017] WASCA 96

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   BRIDE -v- SHIRE OF KATANNING [No 2] [2017] WASCA 96

CORAM:   MURPHY JA

MITCHELL JA

HEARD:   ON THE PAPERS

DELIVERED          :   19 MAY 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:

Costs - Application to vary or set aside costs order - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Appellant               :     No appearance (on the papers)

Second Appellant          :     No appearance (on the papers)

Third Appellant             :     No appearance (on the papers)

Respondent:     No appearance (on the papers)

Solicitors:

First Appellant               :     In person

Second Appellant          :     In person

Third Appellant             :     In person

Respondent:     DLA Piper Australia

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

Nil

1. REASONS OF THE COURT: This appeal was dismissed, pursuant to reasons for judgment delivered on 31 March 2017, on the basis that none of the grounds of appeal had a reasonable prospect of succeeding. The appeal had been against a decision of Tottle J who ordered, pursuant to s 4 of the Vexatious Proceedings Restriction Act 2002 (WA), 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, or alleging fraud or unlawful conduct by the respondent in certain legal proceedings.

2. Although the appellants were informed of the date and time of the delivery of reasons for judgment on 31 March 2017, they did not attend court on that day.  The respondent, who did attend, sought an order for costs. 

3. The court made an order for costs in accordance with the usual order that costs should follow the event, but, as the appellants were absent, gave liberty to the appellants to apply to vary or set aside the costs order within seven days, any such application to be accompanied by written submissions in support.  The court also ordered that any such application would be dealt with on the papers.  

4. On 26 April 2017, the appellants applied to be granted leave to set aside the costs order '[o]ut of [t]ime', and sought orders that there be no costs for the hearing on 31 March 2017.  The application was supported by an affidavit of the first appellant dated 24 April 2017, which included submissions in support.

5. The basis for the application, according to the first appellant's affidavit, is that on 15 June 2013, a 'Common Law Grand Jury' was convened at the Returned & Services League hall at Werribee in Victoria, and that the decisions of a 'Grand Jury' effectively override the decisions of this court, and that this court is 'unable to make lawful orders in relation to costs'.

6. The application is, prima facie, frivolous and vexatious, but it is unnecessary to reach any final view on that because, putting the most charitable complexion on it, it is utterly misconceived.  Nothing in the material filed by the appellant provides any arguable basis for varying or setting aside the costs order made on 31 March 2017.

7. The application falls within the scope of the order that any application to set aside the costs order would be dealt with on the papers.

8. Having considered the papers, the application is dismissed.