CHIN - [2019] WASCA 116

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   CHIN [2019] WASCA 116
CORAM:   MITCHELL JA
BEECH JA
JENKINS J

HEARD:   7 AUGUST 2019
DELIVERED          :   7 AUGUST 2019
PUBLISHED           :   7 AUGUST 2019
FILE NO/S:   CACV 88 of 2018
BETWEEN:   PAUL CHUNG KIONG CHIN
Appellant

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   VAUGHAN J
File Number             :   CIV 2074 of 2018

Catchwords:

Practice and procedure - Appeal against refusal of leave to file and issue originating summons - Whether originating summons an abuse of process or frivolous or vexatious - Where evidence relied on is incapable of establishing claim of the benefit of an easement or restrictive covenant - Turns on own facts

Legislation:

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

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant

In person

Solicitors:

Appellant

In person

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

Ives [2019] WASCA 86
Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213
Walton v Gardiner (1993) 177 CLR 378

REASONS OF THE COURT:

We dismissed this appeal at the conclusion of the hearing on 7 August 2019, and indicated that we would publish reasons later. These are our reasons for dismissing the appeal.

Background and primary proceedings

The appellant appeals against the order of the primary judge dismissing his application for leave to file and issue a proposed originating summons in the General Division of this court.
The following facts, indicated by the evidence before the primary court, were assumed by the primary judge (who did not make any final and conclusive findings of fact in the absence of the intended defendants).
The appellant is the registered proprietor of a strata lot (which it is convenient to refer to as Unit 1) at a property in Malaga. Unit 1 is part of a development of units undertaken at the Malaga property in 1997 by St Marks Investment Co Pty Ltd (St Marks). On 19 December 1997, St Marks obtained planning approval for the development of a lunch bar at the Malaga property. At some time, the appellant operated a lunch bar from Unit 1, before selling the business to a third party, who on-sold the business to the intended defendants. From 2010 to 2015, the intended defendants operated a lunch bar at Unit 1 under a lease granted by the appellant.
Following the expiry of that lease, the intended defendants have, from about 14 February 2016, operated a lunch bar at the Malaga property from another strata lot in the same strata plan (which it is convenient to refer to as Unit 10). The intended defendants had purchased Unit 10 earlier in 2016, after applying for and obtaining planning approval to convert its use from 'general' to 'lunch bar'.
By the proposed originating summons, the appellant sought to claim that Unit 1 enjoyed the benefit of an easement or restrictive covenant requiring that Unit 10 not be used as a lunch bar. He sought declarations, injunctions and damages in respect of the intended defendants' breach of that easement or covenant.
A registrar refused to accept the notice of originating summons for filing on the ground that it appeared to her to be an abuse of the process of the court or a frivolous or vexatious proceeding. The registrar acted under O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (Rules).
Order 67 r 5(1) of the Rules relevantly provides that if any process which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such process without the leave of a judge first had and obtained by the party seeking to file or issue it. Rules 5(3) and (4) provide for an ex parte application for leave to be made to a judge in chambers.
The appellant made such an application by way of ex parte originating motion dated 25 June 2018, which was heard and dismissed by the primary judge on 30 August 2018. His Honour gave ex tempore reasons for his decision.
In Ives,[1] this court observed:
It is established that proceedings will constitute an abuse of process if they can clearly be seen to be foredoomed to fail.[2] Also, as Vaughan J noted in Re Rules of the Supreme Court 1971 (WA); ex parte Gates:[3]
'An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed.' (citations omitted)
[1] Ives [2019] WASCA 86 [50].
[2] Walton v Gardiner (1993) 177 CLR 378, 393.
[3] Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213 [31].
In the present case, the primary judge applied the above principles, and concluded that the proposed proceedings would be an abuse of process or a frivolous or vexatious proceeding. That was on the basis that the claim could not succeed, was doomed to fail and was plainly unsustainable.
The documents which the appellant contended gave rise to the easement or restrictive covenant were referred to in the proposed originating summons and attached to an affidavit sworn by the appellant in support of his application for leave. They related to St Marks' applications for planning approval for the unit development and the use of the land as a lunch bar. The primary judge said:
I have carefully reviewed the documents. They amount to no more than an application for development approval and associated documentation; they do not evidence any grant or reservation by the owners of Unit 10 or their predecessors in title not to use the property for the purpose of a lunch bar to the benefit of Unit 1. Nor, reading the seven documents fairly and as a whole, can it be implied from them that there is any such covenant or easement in favour of Unit 1 as is contended by the [appellant].
The primary judge also referred to documents which were apparently advanced for the purpose of showing a fraudulent breach of the easement or covenant by the intended defendants.[4] The primary judge said:
The [appellant] also makes reference to six 'constraints against the defendants' development ... The [appellant] has attached the documents to his affidavit that represent the so-called constraints. It is unnecessary to recount the six documents. While I have reviewed them, for present purposes it suffices to state that the documents comprise materials from May 2015 onwards which evidence that the intended defendants applied for and obtained a change of use in terms of planning approval for their land at Unit 10. The change was from 'industry-general' to 'lunch bar'.
Again, however, none of those six documents evidence any grant or reservation by the owners of Unit 10 or their predecessors in title not to use the property for the purpose of a lunch bar to the benefit of Unit 1. To the contrary, they suggest an intention to use Unit 10 for the purpose of a lunch bar.
[4] See par 10 of the proposed Originating Summons and par 6 of the appellant's affidavit sworn 23 June 2018.
The primary judge concluded that:
(1) There is no evidence that the intended defendants, as owners of Unit 10, or their predecessors in title covenanted not to use the property for the purpose of a lunch bar.
(2) There is no evidence that any easement was granted to the appellant to use Unit 1 as a lunch bar to the exclusion of the other lots at the Malaga property being used for that same purpose.
The primary judge noted that Le Miere J had previously refused the appellant leave to file a writ in which the current claim was also advanced. His Honour found it unnecessary to determine whether the application for leave to file the proposed originating summons, as opposed to the proposed proceedings, was an abuse of process. He ordered that the application for leave to file and issue the proposed originating summons be dismissed.

Appeal to this court

The appellant now appeals against the primary judge's order on two grounds. Ground 1 is prolix, but in essence contends that the primary judge erred in law in concluding that the proposed proceedings would be frivolous or vexatious or an abuse of process by reason that the documents relied on by the appellant amount to no more than an application for development approval and associated documentation. That is, ground 1 in essence challenges the primary judge's conclusions quoted at [12] above. Ground 2 challenges the conclusions reached in the passages quoted at [13] above.
Nothing in the appellant's grounds of appeal or submissions in support of those grounds provides any basis for doubting the correctness of the primary judge's conclusion that the material on which the proposed proceedings were based did not arguably give rise to an express or implied easement or restrictive covenant. Our examination of the material on which the appellant relies confirms that the primary judge's conclusion is undoubtedly correct. That material does not provide even a remotely arguable foundation for the asserted grant of an easement or restrictive covenant. The primary judge correctly concluded that the proposed proceedings would be an abuse of process or a frivolous or vexatious proceeding, for the reasons which his Honour gave. The appeal must be dismissed for that reason.
It is, consequently, unnecessary to determine whether, as the primary judge suggested was likely, there were other grounds for refusing leave to file the proposed originating summons. Such grounds might include the deficient and abstruse manner in which the claim was set out in the proposed summons, and the potential abuse in re-litigating the application which had been determined by Le Miere J.
It should also be noted that, as the order appealed against is interlocutory in character, leave to appeal is required under s 60(1)(f) of the Supreme Court Act 1935 (WA). As leave to appeal has not been sought, the appeal is technically incompetent. Given the above conclusions, there was no point in allowing the appellant to amend his notice of appeal to seek leave to appeal.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ET
Associate to the Honourable Justice Mitchell
7 AUGUST 2019