Ex Parte - [2018] WASCA 144

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Ex Parte [2018] WASCA 144
Case: [2018] WASCA 144
Decision Date: 14 AUGUST 2018

CaseChat Overview and Summary

The case involved an application for leave to issue a writ, with the applicant seeking relief against the registrar and a judge who had previously refused to issue a writ. The applicant argued that the refusal was erroneous and sought to proceed with the claim despite the initial denial. The dispute came before the Federal Court of Australia, which had to determine whether the proposed claim was frivolous or an abuse of process, and if the claims were foredoomed to fail.

The court was tasked with assessing whether the applicant's proposed claim had any reasonable prospects of success and whether proceeding with it would be an abuse of the court's process. The primary focus was on whether the claims were so lacking in merit that they could not succeed on any view of the evidence. The court had to balance the applicant's right to access the court against the need to prevent the misuse of legal processes.

After careful consideration, the court concluded that the proposed claim was indeed frivolous and amounted to an abuse of process. The court found that the claims were devoid of any reasonable prospect of success and were based on facts that did not support the legal basis of the application. As a result, the court refused the application for leave to issue the writ. The court's decision was based on the inherent jurisdiction to prevent the abuse of its process, ensuring that the courts' resources were not wasted on claims that had no chance of success.

Orders