Ettridge v WorkCover Corporation
[2014] SASC 153
•16 October 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
ETTRIDGE v WORKCOVER CORPORATION
[2014] SASC 153
Reasons for Decision of The Honourable Justice Nicholson
16 October 2014
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
Referral from Registrar for direction pursuant to r 53 of the Supreme Court Civil Rules 2006 (SA) that he reject and refuse the filing of a proposed notice of appeal to the Full Court - whether the document, on its face, is an abuse of process.
Held: Proposed notice of appeal an abuse of process; Registrar to reject it for filing.
Workers Compensation and Rehabilitation Act 1986 s86A; Supreme Court Civil Rules 2006 (SA) r53, referred to.
Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev [2011] SASC 127; Staats v United States of America (1992) 66 ALJR 793; Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99; Re Davison (1997) 147 ALR 259; Manolakis v District Registrar (SA) (2008) 170 FCR 426; Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89; Eastman v Higgins (2007) 210 FLR 464; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193; Ramsey v Skyring (1999) 164 ALR 378, considered.
ETTRIDGE v WORKCOVER CORPORATION
[2014] SASC 153Civil
NICHOLSON J.
Introduction
John Paul Ettridge has sought to file a notice of appeal to the Full Court which lists WorkCover Corporation as respondent. Mr Ettridge is seeking to appeal against a judgment of the Full Bench of the Workers Compensation Tribunal (SA) delivered on 22 September 2014.[1]
[1] Ettridge v WorkCover Corporation (Gemini Electric Motor Company Pty Ltd) [2014] SAWCT 38 (Gilchrist DP, Lieschke DP and Ardlie Aux DP).
Such an appeal lies to the Full Court of the Supreme Court only on a question of law and cannot be commenced except with the permission of a Judge of this Court.[2] However, the Registrar has referred to me the proposed notice of appeal for a determination whether the document should be rejected for filing, in any event, pursuant to the power conferred under r53 of the Supreme Court Civil Rules 2006 (SA).
[2] Workers Compensation and Rehabilitation Act 1986, s86A.
Rule 53 provides for a power to reject documents submitted for filing and the Registrar has asked whether I am prepared to direct that Mr Ettridge’s proposed notice of appeal be rejected on the basis that it is, inter alia, an abuse of the processes of the Court.
The principles relevant to r53 have been helpfully summarised by Gray J in a recent decision of this court.[3] I, with respect, adopt that summary of principles as sufficient for present purposes.
[3] Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev [2011] SASC 127 (Gray J).
Rule 53 provides for power to reject documents submitted for filing. The rule relevantly provides:
(1) A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.
(2) If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
(3) If the Judge or Master so directs, the Registrar will reject the document.
(4) If it appears to the Court that a document that is an abuse of the process of the Court has been filed in the Court, the Court may direct that it be struck from the file.
The purpose of rule 53 is to ensure that the resources of the court are not exhausted by pointless and misconceived litigation and that in the interests of justice, defendants are not put to expense and stress in such cases.[4] The rule has been held to apply to documents that are incoherent such that parties could not know the case being made against them.[5] Under a Federal Court rule in comparable terms, the actual rejection of the document by the Registrar is not subject to judicial review.[6] The direction made under rule 53(4), is an administrative act not subject to appeal.[7]
Rule 53(1) as extracted, provides that a document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious. The terms “scandalous, frivolous or vexatious” in this context are to be given a wide meaning.[8] If the Registrar forms the opinion that the document is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
In Eastman v Higgins,[9] Lander J considered the correct approach to be taken by the Judge or Master in respect of a rule not materially different from rule 53. In that case, Lander J observed that the question raised in the rule itself must be addressed, that is: does the document appear, on its face, to be an abuse of the process of the Court?[10]
I considered rule 53 in Westwill Pty Ltd & Ors v Byrt & Ors,[11] where I concluded:[12]
Rule 53 is, in part, a reflection of the need for courts to protect their resources, while dealing with cases justly. This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.[13] While a court is occupied dealing with matters devoid of merit, meritorious claims are left wanting access to the courts.[14] On the other hand, a fundamental rule of law is that all persons have access to courts.[15] Regardless, general interests of justice and the public interest combine, to require that there be procedures for ensuring that a court can prevent the institution of frivolous or vexatious proceedings, in the sense that those proceedings cannot succeed.[16] It is however a power which should be exercised with care.
[4] Staats v United States of America (1992) 66 ALJR 793; see further my [Gray J’s] treatment of this rule in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.
[5] Re Davison (1997) 147 ALR 259.
[6] Manolakis v District Registrar (SA) (2008) 170 FCR 426.
[7] Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89, [32]-[33].
[8] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [5].
[9] Eastman v Higgins (2007) 210 FLR 464.
[10] As set out by me in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [7].
[11] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.
[12] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [13].
[13] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88, 93 considered in Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [31].
[14] Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [32].
[15] See Ramsey v Skyring (1999) 164 ALR 378.
[16] Staats v United States of America (1992) 66 ALJR 793 where Deane J was considering a Rule in the High Court Rules comparable [in] terms to rule 53.
The terms of the proposed notice of appeal
The proposed notice of appeal consists of 10 typed pages not including the cover sheet. It purports to set out, under headings, the Judgement and Orders complained of, 13 Orders sought on appeal and six grounds of appeal with numerous subgrounds or propositions. It comprises a narrative discussion of complaints and assertions. It is convoluted, lacks clarity and is very difficult to follow. Parts of it are incomprehensible. I agree with the view reached by the Registrar (as the basis for his referral to me under r53) that the document is argumentative, quotes evidence, contains commentary and complains about other decisions of the Tribunal that are not the subject of the proposed appeal.
That is not to say that there are no questions of law adverted to in the document that might appropriately be the subject of an appeal. There may be. However, any such questions are inextricably interwoven with a very substantial amount of irrelevant and embarrassing material. In short, the proposed notice of appeal is not in the form and does not contain appropriate detail sufficient to allow a respondent to the appeal to appreciate the case it would be required to meet, including why the judgment of the Full Bench can be said to be in error and should be set aside.
For these reasons, the proposed notice of appeal, on its face, contains matter that is frivolous or vexatious and, if filed, would be an abuse of the processes of the Court. I direct the Registrar to reject the document. It also follows that I would and do refuse permission to file the notice of appeal. I direct that a copy of these reasons be sent to Mr Ettridge.
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