Ex Parte
[2018] WASCA 144
•14 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: EX PARTE K [2018] WASCA 144
CORAM: MURPHY JA
MITCHELL JA
HEARD: 24 JULY 2018 AND ON THE PAPERS
DELIVERED : 14 AUGUST 2018
FILE NO/S: CACV 36 of 2018
BETWEEN: EX PARTE K
Appellant
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: CHANEY J
Citation: RE STATE OF WESTERN AUSTRALIA; EX PARTE K [2018] WASC 15
File Number : CIV 3172 of 2017
Catchwords:
Practice and procedure - Leave to issue writ - Issue of writ refused by registrar and judge - Whether proposed claim frivolous or abuse of process - Whether claims foredoomed to fail - Turns on own facts
Legislation:
Rules of 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):
A v New South Wales [2007] HCA 10; (2007) 230 CLR 500
Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410
Director of Public Prosecutions (SA) v B [1998] HCA 45; (1998) 194 CLR 566
Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501
REASONS OF THE COURT:
On 14 August 2018, we dismissed this appeal for the following reasons.
Procedural history
This matter was listed for hearing on 24 July 2018 before the court pursuant to a registrar's notice to attend dated 28 June 2018, for the appellant 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), on the basis that none of the grounds of appeal has a reasonable prospect of success. The appellant is in Sydney and arrangements were made, at her request, for her to attend by telephone link. She provided a telephone number for that purpose.
Shortly before the hearing on 24 July 2018, the appellant emailed and faxed submissions to the court. In her email, the appellant also indicated that she wished to adjourn the hearing. She was informed that she would need to make an oral application on 24 July 2018 to adjourn the matter. In an email shortly before the hearing, she indicated, in effect, that she would still attend the hearing by telephone.
The court convened on 24 July 2018 at the appointed time, and several unsuccessful attempts were made to contact the appellant by telephone. On that occasion, we said that we would receive her written submissions referred to above in relation to the matters the subject of the registrar's notice.
We made orders granting the appellant leave to file any further written submissions in relation to the registrar's notice to attend by 31 July 2018, and we ordered that the matters referred to in the registrar's notice to attend be dealt with on the papers. Those orders were emailed to the appellant shortly after the hearing. Later that day, the appellant telephoned the court requesting, in effect, a relisting of the hearing of the registrar's notice to attend to allow her to address the court orally.
On 25 July 2018, the registrar wrote to the appellant in response to the appellant's request for a relisting, and advised that the orders made on 24 July 2018 did not provide for any further oral hearing and that the matter would be determined on the papers.
On 25 and 26 July 2018, the appellant wrote to the court and said, in effect, that she was unable to attend the hearing on 24 July 2018 because she was unwell and had attended a medical practice that day. The appellant also attached a copy of urgent interim apprehended domestic violence orders made on 25 July 2018 by a court in Sydney against her former partner. The appellant said that it was in the interests of justice that she have an opportunity to address the court orally. On 27 July 2018, the appellant wrote again to the court and indicated the nature of the medical matter which she said had prevented her from attending the hearing on 24 July 2018. The appellant requested that the hearing be listed to allow her to address the court orally.
On 31 July 2018, the registrar wrote to the appellant enclosing orders extending time for the appellant to file any written submissions to 7 August 2018. The registrar also directed that, by 7 August 2018, the appellant file an affidavit (attaching a medical certificate) certifying the medical reasons why she did not attend the hearing on 24 July 2018. The registrar said that the court would then further consider the appellant's request to relist the matter for an oral hearing.
On 7 August 2018, the appellant faxed a 13 page document seeking to relist the matter for an oral hearing. The 13 page document attached documents from a medical practice which stated that she attended the medical practice on 24 July 2018 suffering from a 'medical illness', and also on 7 August 2018. The appellant also emailed the 13 page document to the court requesting that it be accepted for filing, and stating that she had been unable to have the document witnessed as an affidavit. The appellant said, amongst other things, that the matter the subject of the appeal is 'a somewhat complicated issue' and it 'is best' to provide to the court 'such narrative' orally.
The appellant did not comply with the registrar's orders of 31 July 2018.
On 8 August 2018, the registrar wrote to the appellant noting that the appellant had not complied with the orders dated 31 July 2018, and informed the appellant that the court had refused the appellant's request to relist the matter for an oral hearing, and that the matter would be decided on the papers. Also, on 8 August 2018, the appellant emailed the court enclosing a schedule of dates she attended at a medical practice in 2018.
The court has received other correspondence from the appellant since then, in which she indicated, amongst other things, that she would put the 13 page document into an affidavit on 9 August 2018. The appellant has not, however, filed and served any further written submissions, or sworn an affidavit deposing to the matters referred to in [8] above.
In all the circumstances, we considered it appropriate to proceed to determine this matter on the papers, as we had directed on 24 July 2018.
The appeal and its background
The appeal is against the primary judge's refusal to grant the appellant leave to file or issue a writ of summons against the State of Western Australia. A registrar of the court refused to file or issue the writ on the basis that it appeared to be a frivolous or vexatious proceeding. The appellant therefore required the leave of the judge, under O 67 r 5(1) of the Rules of the Supreme Court 1971 (WA). On 18 January 2018, the primary judge dismissed the appellant's application for leave to file the writ, for written reasons which his Honour published.[1]
[1] Re State of Western Australia; Ex Parte K [2018] WASC 15 (primary decision).
The primary judge's decision
As was noted by the primary judge, the writ identifies three proposed causes of action:
(a)'Malicious prosecution', in that the State, represented by the Western Australian Police, charged the appellant with an unspecified complaint, and has continued with the prosecution in circumstances where there is no reasonable basis for the charges, where the appellant no longer has legal representation, and where the prosecution has made and continued to make the appellant unwell.[2]
(b)'Breach of duty of care', arising by reason of the appellant supplying the police with medical reports as to the effect of the prosecution on the appellant’s mental health, which duty was breached by certain conduct including proceeding with the charge notwithstanding that she has provided evidence that the continuation of the charge is making her unwell.[3] and
(c)'Defamation of character', in that the appellant is of good character, the State’s allegations in the prosecution are false and bear a number of defamatory imputations and the State has refused to retract the claims.[4]
[2] Primary decision [3] - [4].
[3] Primary decision [5] - [6].
[4] Primary decision [7].
The primary judge noted that the remedy of damages sought in the writ would have no impact on the continuation of the charge against the appellant in the Magistrates Court.[5]
[5] Primary decision [8], [10].
The primary judge assumed for the purposes of the application that the appellant did not satisfy the definition of a 'person under disability' for the purposes of O 70 r 2.[6]
[6] Primary decision [14]
The primary judge found that none of the proposed causes of action were arguable and refused leave for the following reasons:
(a)The pleaded cause of action for malicious prosecution has no prospects of success, because:
(i)proceedings against the appellant had not been terminated in favour of the appellant (which is the second element of the offence);[7]
(ii)the matters pleaded as demonstrating malice are no more than factors that might be said to be relevant to the exercise of discretion to continue the prosecution rather than demonstrating some ulterior purpose for maintaining the prosecution;[8] and
(iii)the State is liable for tortious wrongdoing by police provided the wrongdoing is without malice, so the State is not the correct defendant to a complaint of malicious prosecution by police.[9]
(b)It is not arguable that where a prosecuting authority is aware that the continuation of a prosecution is causing stress and distress to, and even adversely affecting the mental health of, the subject of the prosecution, the prosecuting authority owes a duty of care in tort to avoid that harm by discontinuing the prosecution.[10]
(c)The claim of defamation in the writ, being against the State, is foredoomed to fail.[11] In the course of oral submissions, the appellant suggested that her principal complaint in relation to defamation concerned assertions made by the complainant rather than the police. That person is not nominated as a defendant. So far as the police are concerned, any defamatory imputations arising from the fact of a prosecution being instituted and allegations being made in the context of the hearing of that prosecution are subject to absolute privilege.[12]
[7] Primary decision [16].
[8] Primary decision [16].
[9] Primary decision [17].
[10] Primary decision [19].
[11] Primary decision [21].
[12] Primary decision [20].
The primary judge therefore concluded that the writ was an abuse of the process of the court on the basis that the claims made in the writ were clearly foredoomed to fail.
Disposition
We now turn to consider whether any of the appellant's grounds of appeal have any prospect of success.
In considering the matter, we have had regard to all the materials that the appellant has provided to the court, including the submissions sent by facsimile and email on 24 July 2018.
The appellant relies on the following five grounds of appeal:
His Honour erred in:
a)Finding that the State, is not the correct Defendant; and
b)Finding that as a result of (a) above, my claim must fail; and
c)Finding that a Duty of care, did not exist;
d)Finding that proceedings were vexatious or frivolous; and
e)Finding that proceedings are clearly foredoomed to fail.
As to ground 1, the appellant submits that all cases against the police are taken as against the State, and that by dismissing her application to file a writ against the State on that basis, the primary judge did not afford the appellant natural justice.[13]
[13] Appellant’s case, par 2(a) and (b).
As to ground 2, the appellant submits that the primary judge's 'broad findings, regarding my claim' were 'premature … in the circumstances, without allowing me an opportunity to provide further and better particulars if needed, or, further, any further questions, from the proposed Defendant'.[14]
[14] Appellant’s case, par 2(c).
As to ground 3, the appellant submits that the primary judge 'does not have sufficient details, of my claim, to make such a finding', and 'made such a finding, prematurely, without the full facts of this situation'.[15]
[15] Appellant’s case, par 2(d).
As to grounds 4 and 5, the appellant submits that, effectively in light of the above alleged errors, the primary judge 'has erred in finding these proceedings are vexatious, frivolous, and doomed to fail, as he made an erroneous finding regarding the classification of Defendants, and, further, has dismissed my serious claim, without allowing me an opportunity to present my case'.[16]
[16] Appellant’s case, par 2(e).
In our view, the decision of the primary judge was plainly correct, for the reasons which his Honour gave. Nothing in the appellant's grounds of appeal or submissions provide any ground for doubting the correctness of the primary judge's decision. The grounds on which the primary judge found against the appellant involved matters of law. The appellant's position on the issues on which she failed would not have been improved by an additional opportunity to provide written or oral evidence or further particularisation.
It appears, from the supplementary material provided on 24 July 2018, that the appellant seeks to use civil proceedings alleging malicious prosecution as a mechanism for bringing an end to a prosecution instituted against her in the Magistrates Court. That use of the proposed proceedings is misconceived. As the primary judge recognised, a plaintiff seeking to establish a cause of action for malicious prosecution must show that the prosecution has been terminated in the plaintiff's favour.[17] This reflects the policy that an action for malicious prosecution is an available response to a failed prosecution instituted maliciously without reasonable and probable cause, rather than a means of terminating a prosecution. Further, it is established that the decision whether to institute or continue criminal proceedings is an executive decision which, save where it is necessary to ensure a fair trial or prevent an abuse of process, is not controlled by the courts.[18] Any contention as to abuse of process is appropriately directed to the court seized of the prosecution, rather than to the Supreme Court by way of civil proceeding.
[17] A v New South Wales [2007] HCA 10; (2007) 230 CLR 500 [1].
[18] Maxwell v The Queen [1996] HCA 46; (1996) 184 CLR 501, 501, 534; Director of Public Prosecutions (SA) v B [1998] HCA 45; (1998) 194 CLR 566 [21]; Ayles v The Queen [2008] HCA 6; (2008) 232 CLR 410 [36], [71].
As none of the grounds of appeal has any reasonable prospect of succeeding, we made an order on the papers that the appeal is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CL
ASSOCIATE TO THE HONOURABLE JUSTICE MURPHY14 AUGUST 2018
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