Davey v Quigley - [2018] WASC 107

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   DAVEY -v- QUIGLEY [2018] WASC 107
CORAM:   MARTIN CJ
HEARD:   28 MARCH 2018
DELIVERED          :   28 MARCH 2018
FILE NO/S:   CIV 1167 of 2018
BETWEEN:   JOHN WALTER DAVEY
First Plaintiff

CHRISTOPHER MARK CREWE
Second Plaintiff

IAN BRUCE BELL
Third Plaintiff

AND

JOHN ROBERT QUIGLEY
First Defendant

LARISSA STRK
Second Defendant

SANDRA MARY BOYLE
Third Defendant

WESTPAC BANKING CORPORATION
Fourth Defendant

COMMONWEALTH BANK OF AUSTRALIA
Fifth Defendant

Catchwords:

Application for judicial review - Decisions made by judicial officers of Supreme Court - Actions of Supreme Court registry staff - Failure of Attorney General to act in relation to steps taken by judicial officers and registry staff - Application has no reasonable prospect of succeeding

Legislation:

Civil Judgments Enforcement Act 2004 (WA)
Commonwealth Constitution
Criminal Code Compilation Act 1913 (WA)
Rules of the Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

First Plaintiff	:	In Person
Second Plaintiff	:	In Person
Third Plaintiff	:	In Person
First Defendant	:	Mr AJ Sefton
Second Defendant	:	Mr AJ Sefton
Third Defendant	:	Mr AJ Sefton
Fourth Defendant	:	Mr J Garas
Fifth Defendant	:	Mr BC Smith

Solicitors:

First Plaintiff	:	In Person
Second Plaintiff	:	In Person
Third Plaintiff	:	In Person
First Defendant	:	State Solicitor's Office
Second Defendant	:	State Solicitor's Office
Third Defendant	:	State Solicitor's Office
Fourth Defendant	:	Minter Ellison
Fifth Defendant	:	Dentons Australia

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

Craig v South Australia (1995) 184 CLR 163
Ninan v Judge Newnes and Judge Murphy [2015] WASC 98
Re Hall; Ex parte Chin (No 2) [2011] WASC 155

Re Justice Kenneth Martin; Ex parte Chin [2010] WASC 212

MARTIN CJ:

(This judgment was delivered extemporaneously on 28 March 2018 and has been edited from the transcript.)

This is an application for judicial review. It will be necessary to refer in more detail to the application in due course.
The second and third defendants have indicated, appropriately, that they will abide by the decision of the court and take no active part in the proceedings. The defendants who are actively participating in these proceedings - the first, fourth and fifth defendants, who I will describe collectively as 'the defendants' - submit that the court should exercise the power conferred by O 56 r 5(2)(j) of the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court), to refuse the application on the basis that it has no reasonable prospect of succeeding.
The defendants advance two basic contentions in support of that proposition. The first is that the application was brought outside the limitation period of six months specified in O 56 r 1 of the Rules of the Supreme Court, and no application has been made for an extension of time. Secondly, the defendants contend that, as a matter of substance and irrespective of any limitation issues, the application has no reasonable prospect of succeeding. It is preferable to deal with the second contention first because, if that contention is made good, limitation issues are irrelevant and no application to extend time could save these proceedings.
It is now necessary to consider the application in some detail. The application was filed on 2 February 2018. The parties are Mr Davey as the first plaintiff, Mr Crewe as the second plaintiff, and Mr Bell as the third plaintiff. The first defendant is the Attorney General of Western Australia, the Honourable John Quigley MLA; the second defendant is the Principal Registrar of the Supreme Court, Principal Registrar Strk; the third defendant is Registrar Boyle, who is also a registrar of the Supreme Court; the fourth defendant is Westpac Banking Corporation; and the fifth defendant is the Commonwealth Bank of Australia.
I should observe that the Principal Registrar is sued in that capacity, although it seems that the complaint against her relates entirely to powers that she was exercising during her service as acting master and to a decision which she made in that capacity.
It is now necessary to identify the decisions that are sought to be reviewed by these proceedings.
The first decision is a decision of the Attorney General, which is said to be a decision not to perform his 'integral duties as an officer of the Crown' and to 'permit widespread unlawful practices in the Supreme Court and its registry of refusals to file proper documents'. In other words, the allegation is that the Attorney General has failed to intervene in practices that are alleged to have occurred in the registry of this court.
It is further alleged that the Attorney General failed to act on information regarding contempt of the rule of law, widespread judicial impropriety by multiple Supreme Court justices, and the commission of criminal offences contrary to s 173 of the Criminal Code by administrative officers of the Supreme Court. The thrust of these allegations is an alleged failure by the Attorney General to act in relation to steps taken by both judicial officers and staff of this court in relation to the performance of their functions.
The second decision challenged is said to be a 'summary dismissal order' made against Mr Davey by the Principal Registrar on 4 October 2016. As I have noted, it is clear that anything that was done by the Principal Registrar on that occasion was done by her in her capacity as an acting master of the court.
The third decision sought to be reviewed consists of directions given to administrative staff. It is not clear who is said to have given these directions, but they are said to be directions to refuse Mr Davey's writs of certiorari and mandamus dated 20 October 2016 (the October 2016 documents). Mr Davey was a party to proceedings between himself and Westpac Banking Corporation in relation to a mortgage over land (the Davey mortgage proceedings). The third decision concerns documents which were produced to the registry of the court in connection with the Davey mortgage proceedings.
The fourth decision sought to be reviewed is an order of Registrar Boyle directing registry staff to refuse Mr Crewe's motion to 'set aside for irregularity' dated 24 April 2017. The document to which reference is made was a document produced to the registry of the court in connection with proceedings between Mr Crewe and the Commonwealth Bank of Australia relating to a mortgage over land owned by Mr Crewe (the Crewe mortgage proceedings).
The fifth decision sought to be reviewed consists of certain actions of registry staff, which are said to have a number of components. Firstly, the fifth decision is said to involve actions of registry staff, including the Principal Registrar and Registrar Boyle, in refusing to accept valid documents in proper form. This is presumably a reference to the documents that were lodged in October 2016 and April 2017, as no other documents are identified in the application. Secondly, the fifth decision is said to involve refusing to involve a registrar in those matters when requested. This cannot be a complaint directed against the Principal Registrar or Registrar Boyle, so it must be an allegation with respect to registry staff. The third component is the assertion that registry staff sought to have Mr Davey, Mr Crewe, Mr Bell and another person severely intimidated and threatened by security guards in an endeavour to get them removed from the court registry, when there was no reason or excuse for so doing.
The application refers to a number of interlocutory orders that might be sought, although no application has been pressed in relation to any interlocutory orders. The substantive relief identified in the application is as follows:
(a)A writ of certiorari quashing the orders made in each of the Davey and Crewe mortgage proceedings.
(b)A writ of mandamus directing the court to receive the document that was lodged in October 2016 in connection with the Davey mortgage proceedings.
(c)A writ of mandamus effectively directing the court to receive the document which was lodged with the court in April 2017 in connection with the Crewe mortgage proceedings.
(d)A writ of mandamus issued to the Attorney General to formally and expeditiously report to parliament and cause to be published in Hansard various matters identified in the order sought.
(e)An order that it is recommended to the Attorney General that a 'cost certificate' be issued to the plaintiffs without delay to enable professional legal representation. This 'cost certificate' is presumably relief in the form of a direction to the Attorney General to provide legal representation for these plaintiffs.
(f)Finally, there is a claim for costs, even though the plaintiffs are not legally represented and therefore have no entitlement to costs.
The grounds of the application are set out in the application. It is unnecessary to detail them at this time. There is also a reference in the application to the reasons why it is asserted that the application is brought within the limitation period, notwithstanding the fact that it appears on its face to be outside the limitation period.
A number of documents are attached to the application. These documents include the October 2016 documents which were produced to the registry of the court in connection with the Davey mortgage proceedings. There are also documents dated February 2016 attached to the application, which appear to be documents connected with the Davey mortgage proceedings. The first of these documents is a defence and counterclaim in those proceedings, and the second and third of these documents are both copies of a document describing itself as a counterclaim in those proceedings. All of these documents bear the date of 9 February 2016.
Also attached to the application is the document that was tendered to the court registry in April 2017 in connection with the Crewe mortgage proceedings, and a document purporting to be an affidavit, but which is unsworn, also relating to the Crewe mortgage proceedings.
It should be noted that no interest of Mr Bell has been identified in the proceedings other than the reference to him as being one of the persons in the registry at a time when action was taken which was said to be intimidating. There is no relief sought in the proceedings which is relevant to Mr Bell's interests.
A number of affidavits have been filed in support of the proceedings, and one in opposition to them. I will refer to such part of those affidavits as appears to me to be material to the proceedings and the issues which I have to resolve.
The first affidavit is an affidavit of Mr Bell sworn on 2 February 2018. In that affidavit, Mr Bell asserts that he was one of the persons present at the time documents were filed, and that he personally approached the Attorney General on several occasions in order to invite him to take action.
I observe that merely being present does not give Mr Bell a substantive interest in the receipt or otherwise of the documents sought to be filed on behalf of Mr Davey or Mr Crewe. Nor does Mr Bell appear to have any interest above that of the general public in relation to the actions of the Attorney General. The highest any claim of an interest which could be made on his behalf is that he was one of the persons who is said to have been intimidated by actions of court staff on one of the occasions on which documents were produced to the registry of the court.
There are a number of annexures to Mr Bell's affidavit. The first annexure is an affidavit of Mr Davey sworn on 21 March 2016 in the Davey mortgage proceedings, concerning issues that are related to the substantive merits of those proceedings. The second annexure is a copy of the document that was lodged in April 2017 in connection with the Crewe mortgage proceedings, bearing a manuscript endorsement which appears to be written by Registrar Boyle in the following terms:
Not to be accepted by Registry. This is rejected - it is in itself irregular and misconceived. Wrong process.
This endorsement is signed by the Registrar and dated 24 April 2017. The third annexure is a letter from Mr Crewe to the Attorney General, and a response from the Attorney General's Chief of Staff to Mr Crewe. The fourth annexure to the affidavit of Mr Bell is a document apparently sent to the Attorney General requesting that he take action in relation to various matters.
In chronological order, the next affidavit filed and received is the affidavit of Shane Edward Calalesina, who is a solicitor employed by the legal firm representing the Commonwealth Bank of Australia in these proceedings. Mr Calalesina deposes that on 29 September 2015 judgment was entered against Mr Crewe in the Crewe mortgage proceedings. He further deposes that on 3 May 2017 the sheriff was due to enforce that judgment by taking possession of a property in Maddington the subject of the judgment. Mr Crewe had been given notice to that effect on or about 19 April 2017.
Mr Calalesina deposes that, on 24 April 2017, Mr Crewe made an application to the court by lodging a Form 7 under the Civil Judgments Enforcement Act 2004 (WA), seeking a stay of enforcement of the judgment. That application was listed for hearing on 1 May 2017 and was heard by Registrar Dixon. Mr Crewe appeared by telephone, and Mr Bell was apparently present in the courtroom.
An affidavit was tendered at that hearing on behalf of the Commonwealth Bank of Australia, to the effect that the repossession of the property had been cancelled at the request of the bank on the grounds that Mr Crewe had demonstrated that the property was on the market for sale and that Mr Crewe would be given three months within which to sell the property. On that basis, Mr Crewe's application was dismissed.
On 2 May 2017, the solicitors then acting for the Commonwealth Bank of Australia wrote to Mr Crewe confirming that enforcement action would be deferred for three months in order to allow him to achieve a sale of the property. A copy of that letter is attached to Mr Calalesina's affidavit. On 15 August 2017, the solicitors then acting for the bank wrote to Mr Crewe stating that no evidence of a sale of the property had been provided and that enforcement of the judgment would proceed.
On or about 24 August 2017, Mr Bell contacted the solicitors acting for the Commonwealth Bank of Australia to attempt to discuss Mr Crewe's matter but, understandably, was advised that they could only discuss Mr Crewe's affairs with Mr Bell if Mr Crewe authorised Mr Bell to undertake discussions of that kind on his behalf.
In the result, on 29 August 2017, the sheriff executed a Property (Seizure and Delivery) Order and delivered possession of the property the subject of the mortgage proceedings to the bank pursuant to the judgment earlier entered.
In addition, affidavits have been filed and served on behalf of Mr Davey, including an affidavit sworn by him on 26 March 2018. In that affidavit, reference is made to documents that were lodged in October 2016 in connection with the Davey mortgage proceedings.
This affidavit contains a number of other general allegations relating to other cases, which appear to be irrelevant to these proceedings, and general allegations that might conceivably be relevant to the substantive merits of the mortgage proceedings but which do not bear directly upon these proceedings. The affidavit also includes a series of submissions with respect to the legal principles relating to summary dismissal. I have read and taken into account these principles.
In addition, an affidavit of Ian Roger Ainsworth sworn on 26 March 2018 has been tendered in evidence. In this affidavit, Mr Ainsworth deposes to events which are said to have occurred in the registry of the court in October 2016 in his presence. The affidavit also contains a number of general allegations which might or might not bear upon the merits of either the Davey mortgage proceedings or other mortgage proceedings, but which have no direct bearing upon the issues in this case.
In addition, an affidavit sworn by Mr Crewe dated 26 March 2018 has been tendered in evidence. This affidavit relates primarily to the merits of the mortgage proceedings in which he is involved. Mr Crewe states that, on 27 October 2016, he was accompanied by three men when he tried to file documents. That date clearly must be incorrect, as the documents that were purportedly filed on behalf of Mr Crewe were produced to the court registry in April 2017. This is clear from the document annexed to the affidavit of Mr Bell, which is dated 24 April 2017 and bears the manuscript endorsement of Registrar Boyle specifying the same date.
Mr Crewe deposes that he was told by a security officer that the court would only accept an application for an order made pursuant to the Civil Judgments Enforcement Act 2004 (WA). Mr Crewe deposes that the document in that form was received, as I have already mentioned, and acted upon in the sense that it was listed for hearing and, although no order was made, the bank agreed to take no further action for three months while Mr Crewe was permitted to endeavour to sell the property.
The final affidavit produced in evidence is an affidavit sworn by Francis Peter Bertola on 27 March 2018. There is nothing in that affidavit that I consider to be relevant to these proceedings. That affidavit is concerned with proceedings in which Mr Bertola was involved, and makes a number of general and, at times, scandalous allegations about a variety of people and matters that have no bearing whatsoever upon these proceedings.
It is now necessary to return to the application for the purpose of assessing whether any of the matters raised in the application have any reasonable prospect of succeeding. The most effective way of doing this is by addressing the decisions which are sought to be reviewed in the order in which they are set out in the application.
The first decision is, in effect, two decisions of the Attorney General. The first of these decisions is a decision to not intervene in relation to actions in the registry of the court including, in particular, the refusal of registry staff to file documents. The second of these decisions is the failure by the Attorney General to intervene in relation to decisions made by judicial officers and staff of the court.
The first problem which any application to review this decision faces is that there is no authority or principle of law which would suggest that the Attorney General has any duty to act with respect to actions taken or not taken by registry staff or judicial officers of the court. Quite to the contrary, it is well established and entirely consistent with long-established constitutional principle that the executive government should not interfere with the operations of the court in the discharge of the jurisdiction conferred upon it.
Accordingly, not only does the Attorney General have no duty to undertake the actions which he is said to have failed to undertake, any attempt by him to undertake these actions would be improper and inconsistent with the long-established constitutional principle to which I have referred. For Australian purposes, this principle is embodied in Chapter III of the Commonwealth Constitution, and applies to the Supreme Court of Western Australia as a court upon which Federal jurisdiction is conferred by that Constitution.
The relief sought against the Attorney General is not relief of a kind that could be granted by a court. The relief sought is a direction to the Attorney General to do things in his capacity as a member of the parliament. It would be improper and quite inappropriate for the court to make orders interfering with the relations between a member of the parliament and the parliament itself and, arguably, a contempt of the parliament. For these reasons, the application, insofar as it relates to the alleged decisions of the Attorney General, has no prospect of succeeding.

The second decision which is impugned consists of the orders made by the Principal Registrar in her capacity as acting master. It is necessary to refer to several provisions of the Supreme Court Act 1935 (WA) (Supreme Court Act) which bear upon her role in that regard. Section 11D(1) of the Supreme Court Act provides, relevantly, that:
While there is no person holding or acting in the office of master … and no other person is specifically appointed to act in the office of master by a commission issued under subsection (2), the person holding or for the time being acting in the office of Principal Registrar, if qualified to be appointed to the office of master, is deemed to be so appointed and all the duties and powers of a master devolve upon him [or her], but are not exercisable by him [or her] in conjunction with his [or her] duties and powers as a registrar.
Section 6(3)(f) of the Supreme Court Act provides that the court is to consist of a number of judicial officers, including any acting master holding office under an appointment made or deemed to have been made under s 11D of the Act. Relevant also is s 7(2)(h) of the Supreme Court Act, which provides that any acting master holding office under an appointment made or deemed to have been made under s 11D is a member of the general division of the court.
The master's jurisdiction - and therefore the acting master's jurisdiction - is to be found in O 60 r 1 of the Rules of the Supreme Court, which provides that the master, and therefore the acting master, has the jurisdiction which can be exercised by a judge in chambers. There is no suggestion that the jurisdiction which the acting master purported to exercise was not jurisdiction of that kind.
The second decision which is sought to be reviewed is a decision made by the acting master in her capacity as a member of the court and acting judicially. It is well established that the court does not have jurisdiction to grant prerogative relief or relief analogous to prerogative relief in judicial review proceedings brought pursuant to O 56. There are many cases to that effect. It is sufficient for me to refer, firstly, to the observations made by Heenan J in Re Justice Kenneth Martin; Ex parte Chin [2010] WASC 212. In that case, Heenan J observed that there is a principle that:
…the prerogative remedies of certiorari, prohibition and mandamus do not lie to courts of general jurisdiction against a decision of another Judge or judicial officer of the same court. Putting aside matters arising under federal jurisdiction and the constitutional writs of prohibition and mandamus, which do not arise here, the established principle is that judicial review by prerogative remedies does not lie against a State Supreme Court or against a Judge of a State Supreme Court by another Judge of the same court [9].
His Honour then referred to numerous authorities to support that proposition. That principle applies to this case, because the acting master was acting as a member of the court and discharging the jurisdiction that would otherwise be conferred upon a judge in chambers.
In Craig v South Australia (1995) 184 CLR 163, the High Court described generally certiorari as:
a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal (175).
Clearly, the acting master exercising the jurisdiction of the Supreme Court is not an inferior court or other tribunal and is not amenable to prerogative relief. Decisions to similar effect were made by Commissioner Sleight in Re Hall; Ex parte Chin (No 2) [2011] WASC 155 and by McKechnie J in Ninan v Judge Newnes and Judge Murphy [2015] WASC 98.
So, there is no jurisdiction to review by way of judicial review proceedings the order made by the acting master, and any claim in these proceedings to undertake such a review must fail.
The third decision which is attacked by these proceedings relates to the decision to refuse to file Mr Davey's application for writs of certiorari and mandamus in October 2016. It is necessary, therefore, to say a little more about those documents.
Mr Davey's application for writs of certiorari and mandamus are found in the application itself and annexed to the affidavits to which I have referred. In those documents, the decision that was sought to be reviewed was the decision made by the acting master. The application is for prerogative relief, in effect, quashing the decision made by the acting master. It is clear from the decisions to which I have just referred that the court had no jurisdiction to entertain proceedings of that kind, and that Mr Davey's application was misconceived.
As there was no possible basis upon which those proceedings could succeed, the decision to refuse to receive and issue those documents to enable proceedings to be commenced was entirely appropriate and consistent with the powers conferred by O 67 r 5, whereby documents commencing proceedings that are an abuse of the process of the court or are frivolous and vexatious may be refused. There can be no arguable basis that that power was not properly exercised in respect of proceedings which were clearly beyond the jurisdiction of the court. There is no prospect of success in relation to the claim for judicial review of the third decision identified in the application.
The fourth decision impugned by the application is the equivalent decision made in relation to the document lodged in April 2017. It is necessary to refer a little more to that document. That document did not purport to initiate separate judicial review proceedings, unlike the October 2016 document, but was entitled 'Motion to Set Aside for Irregularity'.
The orders sought in this document included an order that all orders previously made in the Crewe mortgage proceedings be declared void ab initio for denial of procedural fairness and, in addition, an order seeking that the sheriff desist with any enforcement action. The claim to set aside all orders previously made in the proceedings is clearly a claim of a kind that could only be brought by way of a properly instituted appeal.
There is no capacity in the court to entertain proceedings to set aside all previous orders made, other than by way of appeal. That aspect of the relief sought was doomed to fail, and, again, the power conferred upon the court by O 67 r 5 was clearly properly exercised in relation to that aspect of the April 2017 proceedings.
In relation to the discontinuance of enforcement action, as I have mentioned on a number of occasions, it was made clear to Mr Crewe at the time that an application under the Civil Judgments Enforcement Act 2004 (WA) would be received. Such an application was, in fact, received and dealt with in the manner I have described.
The actions of the staff of the court appear to have been entirely appropriate. The actions of Registrar Boyle in rejecting the document were entirely appropriate because any attempt to set aside all previous orders was misconceived, as she observed, and, instead, an application for a stay of enforcement was received and dealt with. So, for those reasons, it does not appear to me that there is any prospect whatever of any success in relation to the fourth decision impugned.
The fifth so-called decision impugned is a little more difficult to identify. As I have already observed, the fifth decision is said to consist of actions of registry staff, including the Principal Registrar and Registrar Boyle. The first allegation is that registry staff, including the Principal Registrar and Registrar Boyle, refused to accept valid documents. Because no other documents relevant to these plaintiffs are referred to in the proceedings, other than the documents that were lodged in October 2016 and April 2017, I construe the application as relating to those documents. For the reasons I have already given, any complaint with respect to the refusal of the court to accept those documents is bound to fail.
The second allegation is that there was a refusal to involve a registrar in those matters when requested. That allegation is difficult to reconcile with the proposition inherent in the ground to the effect that it is the actions of the registrars which are sought to be impugned, and, in any event, it is clear from the evidence that reference was, in fact, made to registrars at the time the documents were rejected. In any event, given my view that the documents were properly rejected, not much point would be served and no relief would be granted even if there was some procedural irregularity preceding the rejection of the documents. But there is no evidence of any procedural irregularity in any event.
The third allegation is an allegation that somebody, who has not been clearly identified, sought to have all the plaintiffs and another witness intimidated and threatened by security guards. In my view, that allegation is not an allegation of a kind that can be properly pursued through proceedings for judicial review. Judicial review proceedings are proceedings in which relief analogous to that obtainable by way of prerogative writs in the form of mandamus, prohibition or certiorari could be obtained.
Allegations to the effect that there was some form of intimidation, or perhaps threatened assault, are not allegations of a kind that could be the subject of appropriate prerogative relief. There might be other forms of relief that are available, but proceedings for judicial review are not appropriate in relation to actions of that kind, which are not properly characterised as administrative decisions. For that reason, this aspect of the application does not have any prospect whatever of succeeding.
For these reasons, it is my view that there is no prospect of any successful challenge to any of the decisions that have been identified in the application. In my view, there is no prospect that any evidence could shed any further light on or overcome the fundamental deficiencies in the proceedings which I have identified. This is therefore a case in which it is appropriate for the court to exercise the power conferred by O 56 r 5 of the Rules of the Supreme Court to refuse the application on the grounds that it has no reasonable prospect of succeeding.
There will be an order that the proceedings be dismissed. There is no reason why the usual order relating to costs should not ensue, so the order will be that the plaintiffs pay the first, fourth and fifth defendants' costs of the proceedings, to be taxed if not agreed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EA
RESEARCH ASSOCIATE TO MARTIN CJ
11 APRIL 2018