Ferguson v J N Allen and Co Pty Ltd
[2017] WADC 112
•29 SEPTEMBER 2017
FERGUSON -v- J N ALLEN & CO PTY LTD [2017] WADC 112
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 112 | |
| Case No: | APP:23/2017 | 16 AUGUST 2017 | |
| Coram: | TROY DCJ | 29/09/17 | |
| PERTH | |||
| 23 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Leave granted to bring an application for orders under the Vexatious Proceedings Restriction Act against the appellant Order made under Vexatious Proceedings Restrictions Act | ||
| PDF Version |
| Parties: | ERIC JOHN FERGUSON J N ALLEN & CO PTY LTD |
Catchwords: | Appeal Power to reopen final orders Vexatious Proceedings Restriction Act 2002 (WA) |
Legislation: | Bankruptcy Act 1966 Magistrates Court (Civil Proceedings) Act 2004 (WA) Magistrates Court Act 2004 (WA) Vexatious Proceedings Restriction Act 2002 (WA) |
Case References: | Allesch v Maunz (2000) 203 CLR 172 Attorney General for Western Australia v Lashansky [No 2] 2015 WASC 417 Bailey v Marinoff (1971) 125 CLR 529 Brocklehurst v Wolinski [2015] WADC 36 Butler v Bennett [2007] WADC 107 DJL v The Central Authority (2000) 201 CLR 226 D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 Jones v Darkan Hotel [2014] WASCA 133 McCardle v McCardle [2017] WADC 27 Michael Mischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146 Tey v Michael Mischin MLC, Attorney General for Western Australia [No 2] [2015] WASCA 243 Walton v Gardiner (1993) 177 CLR 378 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
J N ALLEN & CO PTY LTD
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE BOON
File No : GCLM 13271 of 2010
Catchwords:
Appeal - Power to reopen final orders - Vexatious Proceedings Restriction Act 2002 (WA)
Legislation:
Bankruptcy Act 1966
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Appeal dismissed
Leave granted to bring an application for orders under the Vexatious Proceedings Restriction Act against the appellant
Order made under Vexatious Proceedings Restrictions Act
Representation:
Counsel:
Appellant : In person
Respondent : Mr P A Walker
Solicitors:
Appellant : Not applicable
Respondent : Carmody Lawyers
Case(s) referred to in judgment(s):
Allesch v Maunz (2000) 203 CLR 172
Attorney General for Western Australia v Lashansky [No 2] 2015 WASC 417
Bailey v Marinoff (1971) 125 CLR 529
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
DJL v The Central Authority (2000) 201 CLR 226
D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1
Jones v Darkan Hotel [2014] WASCA 133
McCardle v McCardle [2017] WADC 27
Michael Mischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146
Tey v Michael Mischin MLC, Attorney General for Western Australia [No 2] [2015] WASCA 243
Walton v Gardiner (1993) 177 CLR 378
- TROY DCJ:
Introduction
1 This matter came before me for hearing on 16 August 2017. On that occasion I dismissed Mr Ferguson's appeal and indicated I would provide written reasons for so doing. I reserved my decision on the respondent's application in an appeal for orders to be made under the Vexatious Proceedings Restriction Act 2002 (WA) (VPRA).
2 I had intended to publish my reasons on 25 August 2017. Shortly before the hearing of 25 August 2017 commenced, however, the court received a communication from Mr Ferguson to the effect that he was to undergo a medical procedure on 29 August 2017. He had received medical advice that he should avoid any potentially stressful situations. Accordingly Mr Ferguson did not appear in person at the hearing of 25 August 2017 and indeed indicated that he was not prepared to appear by audio link.
3 During the hearing of 25 August 2017 I indicated to counsel who appeared for the respondent my decision on the respondent's application. I discussed with counsel certain aspects that arose from that decision. I indicated that I would formally publish my reasons and hand down my judgment on 29 September 2017, allowing time for Mr Ferguson to recover from the procedure. I further indicated that I would ensure that Mr Ferguson was provided with the transcript of the hearing of 25 August 2017, so as to permit him to respond to matters arising from my decision on 29 September 2017.
4 All other references to hearing in this judgment relate to the hearing of 16 August 2017.
5 During the course of the hearing I received District Court file App 12/2011 and gave the parties the opportunity to inspect the file. Having reserved my decision I then obtained and considered District Court file App 83 of 2011. I gave the parties the opportunity to inspect that file prior to handing down my decision.
6 On 17 December 2010 his Honour Magistrate Bromfield ordered that Mr Ferguson pay the respondent JN Allen & Co Pty Ltd (JNA) the sum of $20,079.91. Mr Ferguson appealed against that decision, but a deputy registrar of the District Court dismissed his appeal on 2 August 2011.
7 Mr Ferguson did not seek leave to appeal from the dismissal of his appeal on 2 August 2011. The last date for any appeal to be lodged was 23 August 2011.
8 More than five years later, on 13 October 2016, Mr Ferguson made an application in the Magistrates Court of Western Australia for leave of the court to reopen the proceedings that had seemingly concluded in 2010. The basis for Mr Ferguson's application was said to be the discovery of new evidence.
9 On 10 February 2017 her Honour Magistrate Boon dismissed Mr Ferguson's application. Mr Ferguson appealed against that dismissal by notice of appeal dated 17 February 2017. Mr Ferguson asserts that the magistrate erred in law in not allowing him to reopen the case, and that, implicitly, it was within the magistrate's powers to so order.
10 The appellate powers of the District Court are only exercisable if Mr Ferguson succeeds in demonstrating that Magistrate Boon's decision was the result of some legal, factual or discretionary error.
11 The appeal is by way of a 'reconsideration of the evidence' that was before the Magistrates Court: District Court Rules 2005 (WA) (DCR) r 50(1). This is to be undertaken by way of a rehearing: Brocklehurst v Wolinski [2015] WADC 36 [14]; Butler v Bennett [2007] WADC 107 [6] – [10].
12 As a rehearing, the appellate powers of the District Court are only exercisable if Mr Ferguson demonstrates that the decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error: Allesch v Maunz (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow & Hayne JJ). The onus is on Mr Ferguson to demonstrate this error: Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court).
13 In pursuing this appeal Mr Ferguson also made applications seeking leave to issue a subpoena to produce certain documents and for a Craig Walter Skippen to be present via video link for questioning.
14 Finally the respondent filed an application in this appeal for orders against Mr Ferguson under the VPRA.
Chronology
15 The relevant chronology is as follows.
16 On 28 April 2009 the respondent commenced proceedings PER/GCLM/6650/2009 (the 2009 Proceedings)against Ferguson Consolidated Holdings Pty Ltd (FCH) in the Magistrates Court of Western Australia. The proceedings related to a business debt said to be owed by FCH to the respondent.
17 On 8 January 2010 the Magistrates Court made orders by consent to give effect to a settlement of the 2009 Proceedings, including orders that FCH pay the respondent the sum of $20,000 in full and final settlement of its claim by way of monthly instalments. Further, that Mr Ferguson (one of FCH's directors) provide a guarantee in favour of the respondent for payment of the settlement sum.
18 Ferguson Consolidated Holdings Pty Ltd paid approximately $1,350 under the 2009 judgment before payments ceased. As a consequence, on 6 September 2010 the respondent commenced Magistrates Court proceeding PER/GCLM/13271/2010 (the 2010 Proceedings) against Mr Ferguson to enforce the personal guarantee.
19 On 17 December 2010 his Honour Magistrate Bromfield granted the respondent's claim for summary judgment and ordered that Mr Ferguson pay the respondent the sum of $20,079.91.
20 On 7 February 2011 Mr Ferguson lodged a notice of appeal APP 12 of 2011 (2011 Appeal)with the District Court against Magistrate Bromfield's judgment. On 2 August 2011 Mr Ferguson's appeal was dismissed.
21 On 14 September 2011 the respondent filed a summons in the 2010 Proceedings to hold a means inquiry into Mr Ferguson's capability to satisfy the 2010 judgment.
22 On 21 September 2011 Mr Ferguson caused FCH to file an application in the 2009 Proceedings to set aside the 2009 consent judgment (2011 FCH Application). This application was dismissed in the Magistrates Court on 16 April 2012.
23 On 10 November 2011 Mr Ferguson filed an application in the 2010 Proceedings to have enforcement proceedings against him personally under the 2010 judgment suspended (2011 Ferguson Application).
24 On 18 November 2011 the means inquiry proceeded before a registrar in the Magistrates Court. The registrar found that Mr Ferguson had no means to pay the judgment debt and dismissed the respondent's summons. The registrar declined to hear the 2011 Ferguson application because he was of the view that no such application was before him.
25 On 21 November 2011Mr Ferguson filed a notice of appeal in the District Court (App 83/2011), seeking to appeal the refusal to hear the 2011 Ferguson application(Second 2011 Appeal).
26 On 21 February 2012 a sequestration order was made in the Federal Magistrates Court of Australia, Perth Registry against the estate of Mr Ferguson.
27 As a result of that order, on 3 August 2012 those acting for the respondent wrote to the Insolvency Trustee Service Australia to give formal notice under s 60(3) of the Bankruptcy Act 1966 requiring them to make an election to either prosecute or discontinue the action against the respondent.
28 On 4 September 2012 Deputy Registrar Hewitt struck out the Second 2011 appeal. On 12 October 2012 Mr Ferguson commenced an appeal (2012 Appeal) from those orders.
29 In the notice of appeal Mr Ferguson asked for final orders that the appeal should proceed to trial and stated that the appeal was based on the fact that a solicitor coerced Mr Ferguson into guaranteeing the alleged debt.
30 On 19 February 2013 a Ravi-Inder Kaura on behalf of the official trustee in bankruptcy wrote to Mr Ferguson advising him that he did not have the legal capacity to commence and/or continue the 2012 Appeal, and the right of action to pursue such claim remained vested in the official trustee. Mr Ferguson was further advised that having been placed on notice in August 2012, the official trustee did not believe that pursuing the action would benefit creditors of his estate, did not make an election and the action had been deemed to have been abandoned.
31 Despite that notification Mr Ferguson proceeded with his appeal.
32 On 26 February 2013 her Honour Schoombee DCJ dismissed the 2012 Appeal. I will return to her Honour's reasons later. Mr Ferguson took no further action in respect of the 2010 judgment until October 2016.
33 On 20 March 2014, however, Mr Ferguson caused FCH to file an application in the 2009 Proceedings to set aside the judgment in the 2009 Proceedings (2014 Application). This application was dismissed in the Magistrates Court on 16 June 2014.
34 On 28 March 2015 Mr Ferguson was discharged from bankruptcy.
35 On 13 October 2016 Mr Ferguson applied to the Magistrates Court to reopen the 2010 Proceedings (2016 Application). On 10 February 2017 her Honour Magistrate Boon dismissed that application.
36 On 17 February 2017 Mr Ferguson commenced this appeal (App 23/17).
37 On 22 May 2017 Mr Ferguson filed an application in this appeal, seeking leave to issue a subpoena to produce documents (2017 Subpoena Application).
38 On 8 June 2017 the respondent filed its application in this appeal for orders against Mr Ferguson under the VPRA.
39 On 13 June 2017 the court made orders dismissing the 2017 Subpoena Application and listing the respondent's application under the VPRA and the appeal itself for hearing on 16 August 2017.
40 On 4 August 2017 Mr Ferguson filed an application in this appeal, supported by a further affidavit (sworn the same date), seeking leave to issue a subpoena and for a Craig Walter Skippen to be present via video link for questioning.
41 On 8 August 2017 the court adjourned the application to the hearing of the appeal.
42 At the hearing I provided to the parties a document setting out this chronology. Mr Ferguson did not dispute the correctness of that chronology.
Was a final order made in the 2010 proceedings?
43 There is no doubt that judgment was entered against Mr Ferguson in proceeding 13271/2010, at the hearing of 17 December 2010 in the sum of $20,079.91.
44 Mr Ferguson appealed against that decision, but Deputy Registrar Hewitt dismissed his appeal on 2 August 2011. The deputy registrar heard from Mr Ferguson in person and from counsel for the respondent. Mr Ferguson never sought leave to appeal from that decision.
45 The judgment of 17 December 2010 therefore stands as a final order.
The fundamental issue
46 The fundamental issue is whether the magistrate had the power to do what Mr Ferguson asked of her. If the magistrate did not have such power then the order dismissing the application, far from being erroneous, was inevitable.
47 Mr Ferguson appears before me in person, as he did in the court below and as it seems he has throughout this long litigation. There is no doubt that Mr Ferguson is consumed with resentment that the respondent succeeded in its litigation against him in late 2010. He has expressed that resentment in countless oral and written submissions since December 2010.
48 Mr Ferguson did not seem to appreciate that for his appeal to succeed it is necessary for him to explain how it was open to a court in 2016 to reopen his 2010 case when he had not pursued his rights on appeal after 2 August 2011.
The Magistrates Court as a statutory court
49 As I have noted, Mr Ferguson applied to a magistrate to reopen a case decided against him by another magistrate some six years earlier. The Magistrates Court is a statutory court as opposed to a court with an inherent jurisdiction. The Magistrates Court Act 2004 (WA) is described as an act to establish the Magistrates Court of Western Australia and for related purposes.
50 Section 4 provides that a court called the Magistrates Court of Western Australia is established and the court is a court of record.
51 Similarly the Magistrates Court (Civil Proceedings) Act2004 (WA) is described as an act relating to the civil jurisdiction of, and civil proceedings in, the Magistrates Court. Section 5 provides that the Magistrates Court's civil jurisdiction is set out in this Act.
52 In DJL v The Central Authority (2000) 201 CLR 226 the High Court considered the status of the Family Court. Their Honours Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ noted (at [25]) that the Family Court is not a common law court as were the three common law courts at Westminster. Accordingly, it was unable to draw upon the well of undefined powers which were available to those courts as part of their inherent jurisdiction. The Family Court is a statutory court, being a federal court created by the Parliament within the meaning of s 71 of the Constitution.
53 Their Honours held that a court exercising jurisdiction or powers conferred by statute (in DJL the Family Court, in this case the Magistrates Court of Western Australia) has powers expressly or by implication conferred by the legislation which governs it. It also has in addition such powers as are incidental and necessary to the exercise of the jurisdiction or the powers so conferred. Such incidental and necessary powers should not be characterised as, 'inherent jurisdiction'.
54 Even in a court of inherent jurisdiction, Bailey v Marinoff (1971) 125 CLR 529 establishes that an inherent power to correct an order after it is perfected by being drawn up as a record of the court is very limited. In such a case the proceeding, apart from any statutory power to the contrary, is at an end in that court and is in substance beyond its recall.
Did the magistrate have the power to reopen Mr Ferguson's 2010 case?
55 I return to the fundamental issue which is to be considered in the context that final orders were made against Mr Ferguson in late 2010 by a statutory court, that his appeal was dismissed and that Mr Ferguson did not pursue any further appeal.
56 Mr Ferguson's grounds of appeal simply stated that the magistrate, 'did not take into account of my affidavits'.
57 In his supporting affidavit dated 17 February 2017 Mr Ferguson did not articulate the necessary legal, factual or discretionary error; rather he went immediately to what he asserts is the core issue in the case, namely that his actions in standing as a guarantor were brought about by coercion and misrepresentation.
58 In his submissions dated 2 August 2017 Mr Ferguson did not refer to his attempt to appeal the 17 December 2010 judgment. Nor did he make any attempt to articulate how it was open to the magistrate to reopen his 2010 case.
59 In essence, Mr Ferguson argues that in dismissing his application, the magistrate did not take into account his argument that the material contained within his various affidavits established that he was in some way inveigled into guaranteeing a debt that did not actually exist.
60 Since filing the application on 13 October 2016, Mr Ferguson has sworn a number of affidavits namely an affidavit received on 27 October 2016, a general form of affidavit dated 3 January 2017, the affidavit of 17 February 2017 and further affidavits of 22 May, 13 July and 4 August 2017. Mr Ferguson also filed submissions dated 2 August 2017.
61 The recurrent theme in all of this material is an argument that the court in December 2010 should not have ordered judgment against him and, it follows, Mr Ferguson's 2011 appeal should have been allowed. Mr Ferguson made the same point in oral submissions before me.
62 Mr Ferguson has repeatedly identified matters that he says exposes the weakness in the respondent's 2010 claim. By way of example, in his written submissions filed on 2 August 2017 Mr Ferguson argued that the magistrate refused to reopen the case because it had been going on too long. Mr Ferguson argued that he still believed that the court may still have made a judgment with the overwhelming evidence he had provided. He argued that he guaranteed a debt that did not exist in his favour as, 'the judgment ended on the same day and that they may have erred under a duty of care under common law'.
Express and implied powers of the Magistrates Court
63 Section 16 of the Magistrates Court (Civil Proceedings) Act is headed, 'Court's powers to control and manage cases'. By s 16(1) the Act provides that the court may do all or any of the following (20 specified actions) for the purposes of controlling and managing cases and trials. No power to reopen cases, whether or not new or fresh evidence is revealed, is conferred on the court by this subsection or under any other section of this act or indeed by any other statute.
64 In no sense was the magistrate being asked to correct a judgment that contained an accidental slip or admission or immaterial arithmetic error or immaterial mistake in the description of any person, thing or matter. Section 23 of the Magistrates Court Act which is headed, 'Correction of Accidental Errors' is thus not engaged.
65 As the respondent correctly submits, there is no express conferral of power on the Magistrates Court to set aside, vary or recall its own final orders or judgments after entry. Nor is there any such power derived from necessary implication from the statutory structure. The existence of a right of appeal to the District Court, coupled with the supervisory jurisdiction of the Supreme Court, provides any necessary avenue for final orders of the Magistrates Court to be varied or set aside where there is a proper basis for doing so. The jurisdiction of the Supreme Court can be enlivened on statutory review and separately for jurisdictional error at common law.
66 As Gleeson CJ, Gummow, Hayne and Heydon JJ observed in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 [34], a central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry, their Honours citing DJL v Central Authority.
67 Their Honours continued at [35] with the observation that the principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system. But even there, the importance of finality pervades the law.
68 Further, I note that one of the basis for a superior court to exercise its inherent jurisdiction to stay its proceedings on grounds of abuse of process is if their continuance would be unjustifiably vexatious and oppressive, for the reason that it is sought to litigate anew a case which has already been disposed of by earlier proceedings: Walton v Gardiner (1993) 177 CLR 378, 392 – 393 (Mason CJ, Deane & Dawson JJ).
Conclusion on appeal
69 It is a pointless exercise to try to sift through the material provided in various forms by Mr Ferguson in an endeavour to ascertain whether there is any merit to his claim that there was no debt. Mr Ferguson had the opportunity in December 2010 to raise the arguments that he has repeatedly pressed in the succeeding six or seven years. That court found against him. Mr Ferguson had the opportunity to appeal against that decision. He did so and again the court found against him. Mr Ferguson then had the opportunity to seek leave to appeal but he did not do so.
70 Having exhausted his rights of appeal Mr Ferguson was bound by Magistrate Bromfield's decision of 17 December 2010. Repeatedly bringing to the courts' attention material designed to demonstrate that the original decision was flawed and should be revisited cannot alter that reality.
71 Mr Ferguson has simply not grappled with the fact that there is an onus on him to articulate some legal, factual or discretionary error. Mr Ferguson has failed to demonstrate any such error on the part of the magistrate. Her Honour was of the view that she had no power to accede to Mr Ferguson's application. For the reasons that I have set out her Honour was plainly correct to so conclude.
72 Given my finding that her Honour had no power to reopen the case, any additional evidence obtained on subpoena or by questioning Mr Skippen could never have assisted Mr Ferguson to demonstrate that the Magistrates Court had a power which it always lacked.
73 Accordingly leave to issue a subpoena to produce documents and for a witness to appear by video link to give evidence is refused. The appeal is dismissed.
The respondent's application under the VPRA
74 By application dated 8 June 2017 supported by an affidavit of the same date sworn by John Norman Allen, the respondent asserts that Mr Ferguson has instituted or conducted eight applications or appeals without reasonable ground. Accordingly, the respondent submits that s 4 of the VPRA is engaged and that further I should exercise my discretion to make the orders that are sought.
75 Mr Ferguson's position in response, somewhat unsurprisingly, is that his appeal (and by implication the other applications and appeals relied upon) is not vexatious and that he has been the victim of acts of unconscionable conduct and fraudulent misrepresentation.
The VPRA
76 Section 3 of the VPRA provides as follows:
proceedings includes —
(a) any cause, matter, action, suit, proceeding, trial, or inquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal;
(b) any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and
(c) an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal;
vexatious proceedings means proceedings —
(a) which are an abuse of the process of a court or a tribunal;
(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;
(c) instituted or pursued without reasonable ground; or
(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
77 The respondent relies on the type set out in s 3(c) - proceedings instituted or pursued without reasonable ground.
78 Section 4 relevantly provides:
Restriction of vexatious proceedings
(1) If a Court is satisfied that -
(a) a person has instituted or conducted vexatious proceedings; or
(b) it is likely that the person will institute or conduct vexatious proceedings, the Court may make either or both of the following orders -
(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;
(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).
(2) An order under subsection (1) may be made by the Court on its own motion or on the application of -
(c) with the leave of the Court -
(i) a person against whom another person has instituted or conducted vexatious proceedings;
(a) staying any proceedings that have been instituted by a person, either as to the whole or part of the proceedings; or
(b) prohibiting a person from instituting proceedings, or proceedings of a particular class,
without hearing that person or giving that person an opportunity of being heard.
The basis for the respondent's application
79 The respondent, as a person against whom the appellant has conducted proceedings, has standing to bring the application, though it requires the leave of the court: VPRA s 4(2)(c)(i). An application may be made within an existing proceeding. The term 'proceedings' is defined in VPRA s 3 to include an appeal.
80 Mr Ferguson has been heard on this issue having responded by his affidavit sworn on 13 July 2017 and in oral submissions.
81 I accept that a proper construction of s 4 of the VPRA justifies the conclusion urged on me by the respondent, namely that it is sufficiently wide to embrace a person, like Mr Ferguson, who controls a company and then causes that company in a practical sense to institute or conduct vexatious proceedings.
82 I am satisfied that it is open to me in considering the respondent's application to consider applications that Mr Ferguson caused FCH to make.
83 In Attorney General for Western Australia v Lashansky [No 2] 2015 WASC 417 Allanson J held at [30] that consideration of whether proceedings were instituted or pursued without reasonable grounds may include claims with unintelligible pleadings, misconceived or hopeless appeals, appeals which lack any legal basis, and applications or proceedings which have absolutely no prospect of success.
84 His Honour also noted, at [31], that whether earlier proceedings were an abuse of process or instituted without reasonable cause may be apparent on a reading of the reasons and orders of the court.
Was the 2011 FCH Application instituted or conducted without reasonable ground?
85 It is convenient to consider the seventh proceeding relied upon by the respondent (pars 64 and 65 of the respondent's written submissions) first. On 21 September 2011 Mr Ferguson caused FCH to file the 2011 FCH Application in the 2009 Proceedings to set aside the 2009 consent judgment. This application was dismissed on 16 April 2012.
86 I note that this application was filed four weeks after the time limit for Mr Ferguson to appeal from the decision of Deputy Registrar Hewitt had expired. I note that Mr Ferguson was present when his appeal was dismissed. Rather than pursuing that matter on appeal, as was open to him, Mr Ferguson instead caused FCH to apply to the court to set aside the earlier consent judgment.
87 I am satisfied that for the reasons I have given in dismissing Mr Ferguson's appeal, the Magistrates Court had no jurisdiction to set aside the 2009 judgment after it had been perfected.
88 I conclude that the 2011 FCH Application was instituted or conducted without reasonable grounds.
Were the two appeals arising out of the decision of 18 November 2011 instituted or conducted without reasonable ground?
89 I then consider the first and second proceedings relied upon by the respondent (pars 56 - 59 of the respondent's written submissions). On 18 November 2011 the registrar declined to hear the 2011 Ferguson application.
90 The respondent relies upon the unsuccessful appeal from the registrar's decision of 18 November 2011. Mr Ferguson lodged this appeal (App 83 of 2011) by appeal notice dated 21 November 2011. It was described in the hearing as the second 2011 Appeal.
91 It is convenient to consider that appeal together with the 2012 Appeal.
92 The respondent submits that each appeal was instituted or conducted without reasonable ground. The first reason is that three months after lodging the second 2011 Appeal Mr Ferguson was declared bankrupt. He nonetheless continued, and therefore conducted, that appeal, and he instituted and conducted the 2012 Appeal.
93 As the respondent pointed out in its written submissions dated 26 March 2012 the effect of the order of 21 February 2012, read with s 60(2) of the Bankruptcy Act, is that a bankrupt, as Mr Ferguson then was, has his action stayed until the trustee of his estate makes an election to prosecute or discontinue the action.
94 In dismissing the 2012 Appeal her Honour Schoombee DCJ found that in a situation where the trustee had abandoned the appeal, and Mr Ferguson was no longer entitled under s 60(2) of the Bankruptcy Act to pursue his own claim or appeal, there was no jurisdiction for the District Court to continue hearing the matter (ts 20).
95 Secondly, as was pointed out in the respondent's answer dated 12 December 2011, and as Schoombee DCJ found (ts 20), the District Court had no jurisdiction to hear either appeal. Section 29 of the Magistrates Court Act provides that a party dissatisfied with the decision of a registrar of the Magistrates Court can appeal to a magistrate.
96 Schoombee DCJ found that the appeal was so clearly hopeless it should never have been pursued (ts 22 - 23). The complete lack of any merit or prospect of success justified the unusual order of indemnity costs.
97 I note that an application at that time by chamber summons dated 15 February 2013 for Mr Ferguson to be declared a vexatious litigant was adjourned sine die.
98 I conclude that the Second 2011 Appeal and the 2012 Appeal were each instituted or conducted without reasonable grounds.
Was the 2014 FCH Application instituted or conducted without reasonable ground?
99 I then consider the eighth proceeding relied upon by the respondent (pars 66 and 67 of the respondent's written submissions). On 20 March 2014 Mr Ferguson, still of course an undischarged bankrupt, for a second time caused FCH to file an application to set aside the judgment in the 2009 Proceedings. The application was dismissed by the Magistrates Court on 16 June 2014, just as the 2011 FCH Application had been.
100 Again as I have explained, such an application lacked any merit because the Magistrates Court had no power to set aside the judgment in the 2009 Proceedings. That judgment could only be disturbed on an appeal to a higher court. No appeal was ever brought.
101 I am satisfied that the 2014 FCH Application was instituted and conducted without reasonable ground.
Was the 13 October 2016 application instituted or conducted without reasonable ground?
102 I then consider the third proceeding relied upon by the respondent (par 60 of the respondent's written submissions). As I have already explained this application lacked any merit because the magistrate had no power to reopen the 2010 case. I also note that in the body of the application Mr Ferguson sought compensation to be paid to him in the sum of $75,000 for what is said to be exacerbation of an existing heart condition. Quite how a court, or indeed the respondent, was expected to deal with that claim in the absence of any attempted formal pleading is not clear.
103 I am satisfied that the 2016 application was instituted and conducted without reasonable ground.
Was the present appeal instituted or conducted without reasonable ground?
104 I then consider the fourth proceeding relied upon by the respondent (par 61 of the respondent's written submissions). Again as I have explained this appeal, which I have dismissed, lacked any merit because the magistrate had no power to reopen the 2010 case. Moreover the magistrate did her best to make that abundantly clear to Mr Ferguson during the course of the hearing.
105 I am satisfied that the present appeal was instituted and conducted without reasonable ground.
Were the interlocutory proceedings arising from the present appeal instituted or conducted without reasonable ground?
106 I then consider the fifth and sixth proceedings relied upon by the respondent (pars 62 and 63 of the respondent's written submissions). I am satisfied that the 2017 subpoena application and the second 2017 Subpoena Application (interlocutory proceedings under s 3 of the VPRA) were instituted or conducted without reasonable ground. The conclusion follows from my earlier findings that the magistrate had no power to reopen the case. Applications designed to obtain additional evidence could never therefore have assisted Mr Ferguson and were, I find, entirely pointless.
Conclusions on application of s 4 of the VPRA
107 A readily discernible theme has emerged over the years. At some point in time after 8 January 2010 Mr Ferguson, as a director of FCH, became disgruntled with the settlement that had resulted in the consent judgment. Some payments had been made under that settlement by instalment but then ceased. The respondent exercised its rights to take proceedings against Mr Ferguson to enforce the personal guarantee. On 17 December 2010 Magistrate Bromfield granted the respondent's claim for summary judgment because there was no arguable defence.
108 Mr Ferguson was present for that hearing, albeit without legal representation, and made representations to the magistrate. Mr Ferguson referred then as he has done on many occasions over the years to the absence of documentary proof of the alleged debt. Magistrate Bromfield noted that Mr Ferguson sought to attack the integrity of the settlement that resulted in the judgment against the company for which he had guaranteed payment (ts 6).
109 Mr Ferguson appealed the decision but his appeal was dismissed.
110 The period for any further appeal expired. Within four weeks of the expiration of the period for lodging an appeal, Mr Ferguson sought to set aside a decision that he disagreed with, without actually seeking to appeal it.
111 Mr Ferguson continued to apply to set aside the final orders of the court, either the orders of 8 January 2010 or 17 December 2010, without pursuing the correct course, which was to attempt to appeal or to appeal further from those decisions. He did so, as I have noted, in March 2014, in October 2016 and in February 2017.
112 It is instructive that the matters relied upon by Mr Ferguson in the present appeal echo the grounds of appeal dated 7 February 2011 and the supportive affidavit dated 9 February 2011. The grounds of appeal and affidavit assert that the respondent has never disclosed or proved the debt, that Mr Ferguson never authorised the respondent to use or charge to FCH, or use its ABN and that there is no debt to FCH.
113 I conclude that on the eight occasions that I have specified Mr Ferguson has instituted or conducted vexatious proceedings, enlivening the power in VPRA s 4(2)(c)(i).
114 I grant leave, pursuant to s 4(2)(c) of the VPRA, to the respondent to bring the application dated 9 June 2017.
The discretion whether to make an order pursuant to VPRA s 4
115 Having determined that the power in VPRA s 4(2)(c)(i) is enlivened, the next question for me is whether in the exercise of my discretion I should exercise that power.
116 In MichaelMischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146 Le Miere J made the following observations at [69] - [70]:
In exercising my discretion there are a number of matters which I must take into account. The right of an individual to commence proceedings to enforce or defend his rights is one of the fundamental rights in a free society. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. To limit this right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification. The effect of an order made under s 4(1) (d) of the Act does not remove the right to issue proceedings entirely. A person against whom such an order has been made still has access to the courts. However, she is required to take an additional step in the process by obtaining the permission of the court prior to any claims being issued. Nevertheless, the making of an order under s 4(1) of the Act restricts the rights of the person against whom such an order has been made and for that reason the powers conferred by that section must be exercised with caution.
The court must have regard to the purposes of the Act. The factors which are relevant to the exercise of the discretion are informed by the purpose which the order serves. There are two principal social mischiefs which vexatious litigant legislation traditionally addresses. The first is the waste of scarce and valuable judicial resources on barren and misconceived litigation to the detriment of other litigants with real cases to try. The second is the harassment of litigant's [sic] opponents by the worry and expense of vexatious litigation.
117 Ms. Tey appealed and her appeal was dismissed: Tey v Michael Mischin MLC, Attorney General for Western Australia [No 2] [2015] WASCA 243.
118 In dismissing the appeal Buss and Murphy JJA referred to those observations of Le Miere J at [3] without any qualification. I am quite satisfied that the approach articulated by his Honour in Tey is appropriate. I respectfully adopt his Honour's observations and apply them to this case.
119 InLashansky Allanson J observed at [24] that in the exercise of discretion, whether vexatious proceedings have been instituted or conducted frequently or persistently will generally be relevant in determining whether an order should be made and in what form.
120 I accept the respondent's submissions that Mr Ferguson has plainly persisted in unreasonably refusing to accept the finality of court decisions. All of the proceedings embarked upon by Mr Ferguson since 2011 have reflected his unsuccessful defence to the claim for summary judgment on 17 December 2010. Mr Ferguson has sought to re-litigate that failed defence in eight separate applications and appeals over a period of almost six years. The respondent recovered $1,350 by agreement under the 2009 judgment but nothing under the 2010 judgment. The irrecoverable costs of the various sets of proceedings have substantially exceeded that amount.
121 I agree that unless orders under the VPRA are made, Mr Ferguson will inevitably continue to attempt to re-litigate this matter despite, in my view, no prospects of success whatsoever. That will self-evidently be burdensome and expensive to the respondent and will impose an entirely disproportionate cost and burden upon the court system.
122 The orders I propose to make will not restrict Mr Ferguson's right of access to the courts any more than is reasonably necessary to promote the objects of the VPRA and to protect the respondent from vexatious proceedings.
Orders sought
123 The further orders sought by the respondent are:
1. Pursuant to s 4(1)(d) of the VPRA, Mr Ferguson is prohibited from instituting (including by causing Ferguson Consolidated Holdings Pty Ltd ACN 009 242 326 or any other company to institute) proceedings against JNA without leave of the court.
2. Alternatively to par 3 above, pursuant to s 4(1)(d) of the VPRA Mr Ferguson is prohibited from instituting (including by causing Ferguson Consolidated Holdings Pty Ltd ACN 009 242 326 or any other company to institute) proceedings against JNA:
(a) in or as part of Magistrates Court of Western Australia proceedings GCLM 13271/2010 or GCLM 6650/2009; and
(b) otherwise in respect of Magistrates Court of Western Australia proceedings GCLM 13271/2010 or GCLM 6650/2009 (including by way of appeal from any order or judgment made as part of either proceeding).
125 Also at the hearing I expressed the view that if I was minded to make orders, I would not do so in a way that would extinguish Mr Ferguson's rights to appeal from my decisions to dismiss his appeal and, if that transpired, to grant orders under the VPRA.
126 I respectfully agree with the observations of Gething DCJ in McCardle v McCardle [2017] WADC 27 [154] that a case would need to be truly exceptional before it would be appropriate for a judge of the District Court to make an order restricting a litigant from exercising his or her right to appeal a decision to the Court of Appeal. To do so would be an inappropriate fetter on the proper oversight of the District Court by the Court of Appeal.
127 Counsel for the respondent acknowledged that proposed order 4 might be regarded as a more targeted response then proposed order 3. I agree. Given that orders of this nature necessarily encroach into the liberty of the subject it is appropriate to make the least intrusive order consistent with promoting the purposes of the Act.
Final orders
128 Accordingly having made the findings that I have set out above and applying my discretion in the manner articulated in Tey I make the following order:
1. Mr Ferguson is prohibited from instituting (including by causing Ferguson Consolidated Holdings Pty Ltd ACN 009 242 326 or any other company to institute) proceedings against the respondent, JNA:
(a) in or as part of Magistrates Court of Western Australia proceedings GCLM 13271/2010 or GCLM 6650/2009; and
(b) otherwise in respect of Magistrates Court of Western Australia proceedings GCLM 13271/2010 or GCLM 6650/2009
without the leave of the court.
129 I make it plain that in so ordering I do not intend to restrict Mr Ferguson's right to seek leave to appeal from my decision to dismiss his appeal and to make the order under the VPRA if he is so minded.
130 My intention in making the order is to preclude, without the leave of the court, Mr Ferguson circumventing the ordinary appeal process by seeking to set aside, yet again, a final order without fully pursuing his appeal rights in respect of that order.
131 The orders that I make therefore are as follows:
1. The appeal be dismissed;
2. The respondent has leave to bring the application dated 8 June 2017 for orders under the VPRA against the appellant;
3. Pursuant to s 4(1)(d) of the VPRA Mr Ferguson is prohibited from instituting (including by causing Ferguson Consolidated Holdings Pty Ltd ACN 009 242 326 or any other company to institute) proceedings against the respondent JNA:
(a) in or as part of Magistrates Court of Western Australia proceedings GCLM 13271/2010 or GCLM 6650/2009; and
(b) otherwise in respect of Magistrates Court of Western Australia proceedings GCLM 13271/2010 or GCLM 6650/2009
without the leave of the court;
4. The appellant pay the respondent's costs of the appeal, including the costs of the respondent's application dated 8 June 2017, to be taxed if not agreed.
0
13
4