Hart-Roach v Denniss (No 2)
[2012] FCA 94
•16 February 2012
FEDERAL COURT OF AUSTRALIA
Hart-Roach v Denniss (No 2) [2012] FCA 94
Citation: Hart-Roach v Denniss (No 2) [2012] FCA 94 Parties: RUTH MARY HART-ROACH v BRUCE GORDON THOBURN DENNISS JOHN R MALLOCH REAL ESTATE AVON-SMITH PTY LTD AVON-SMITH FAMILY TRUST CRAIG MCINTOSH MARGARET BLAKER File number: WAD 411 of 2010 Judge: MCKERRACHER J Date of judgment: 16 February 2012 Catchwords: PRACTICE AND PROCEDURE - application for summary dismissal - no arguable cause of action identified - inadmissible supporting affidavits - no jurisdiction to review decisions of State courts under residential tenancies legislation - abuse of process - applicant commenced similar proceedings in State court Legislation: Federal Court of Australia Act 1976 (Cth) s 31A(2)
Residential Tenancies Act 1987 (WA) ss 12, 26Cases cited: Australian Associated Motor Insurers Ltd v NRMA Insurance Ltd (2002) 124 FCR 518
Hart-Roach v Magistrate J A Hawkins [2010] WASC 282
Hart-Roach v Denniss [2011] FCA 26Date of hearing: 29 November 2011 Place: Perth Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 36 Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: C McIntosh Solicitor for the Respondent: Muries Lawyers
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 411 of 2010
BETWEEN: RUTH MARY HART-ROACH
ApplicantAND: BRUCE GORDON THOBURN DENNISS
JOHN R MALLOCH REAL ESTATE
AVON-SMITH PTY LTD
AVON-SMITH FAMILY TRUST
CRAIG MCINTOSH
MARGARET BLAKER
Respondents
JUDGE:
MCKERRACHER J
DATE OF ORDER:
16 FEBRUARY 2012
WHERE MADE:
PERTH
THE COURT ORDERS THAT:
1.The respondents’ motion for summary dismissal be granted.
2.The applicant’s application be dismissed.
3.The applicant do pay the costs of the respondents, to be taxed if not agreed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
WAD 411 of 2010
BETWEEN: RUTH MARY HART-ROACH
ApplicantAND: BRUCE GORDON THOBURN DENNISS
JOHN R MALLOCH REAL ESTATE
AVON-SMITH PTY LTD
AVON-SMITH FAMILY TRUST
CRAIG MCINTOSH
MARGARET BLAKER
Respondents
JUDGE:
MCKERRACHER J
DATE:
16 FEBRUARY 2012
PLACE:
PERTH
REASONS FOR JUDGMENT
THE MOTION
The respondents move for summary dismissal of this application on the basis that the proceeding is frivolous, vexatious or an abuse of process. Alternatively, they seek dismissal as it has no prospect of success (pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth)).
In my view the motion must succeed. The application must be dismissed for several reasons. First, it is an abuse of process to pursue this proceeding while other proceedings advancing the same contentions in State courts remain on foot. Secondly, there is no power or jurisdiction in this Court to review the decisions in the State courts of which the applicant complains. Thirdly, there is no arguable cause of action even if there was jurisdiction. Fourthly, even if there were, it would have no reasonable prospect of success within the meaning of s 31A(2) of the Federal Court of Australia Act 1976 (Cth). Finally, if there is an arguable cause of action, it should be pursued, if it can be, in an appropriate State court where the applicant is seeking to raise the same alleged breaches of State legislation.
BACKGROUND AND PROCEDURAL HISTORY
On 24 December last year, the applicant moved for an urgent injunction to restrain the respondents from interfering with or disposing of her goods formerly held in a unit occupied by her in Nedlands, Western Australia (the Premises). The relief sought was then said to be based under the Trade Practices Act 1974 (Cth) as it then was (Trade Practices Act) and, in particular, on the unconscionable conduct provisions of that Act. After hearing the applicant’s outline of the nature of her complaint and her case, I informed her that my original impression was that the Court may lack jurisdiction as the complaints appeared in reality to be based on State legislation. On further consideration however, it seemed there may be a possibility (only) of jurisdiction under what was then the Trade Practices Act provisions. That was to say nothing whatsoever about the merits of the matter. There was an acceptance only that the matter may be capable of being heard in this Court. That theoretical possibility appears to have given the applicant something of a false hope.
It was by no means clear that injunctive relief would be appropriate but I indicated to the applicant that I would adjourn to see whether it was possible for contact to be made with the relevant leasing agents to ascertain whether they would give an assurance that no steps to deal with the applicant’s property would be taken for a short period of time. This, in turn, would enable the opportunity for the respondents to present their side of the story. The applicant approved of this course.
As noted in Hart-Roach v Denniss [2011] FCA 26 (at [5]) a Deputy District Registrar contacted Mr John R Malloch on behalf of the respondents. The Deputy District Registrar was informed that in fact the respondents had already given an extension of time under the relevant State legislation to the applicant to recover her property and indeed that extension of time ran for a period of 60 days from the date of the notice, which was the 17 December 2010. The notice had been posted to the address that had been previously used by the applicant but was apparently not received. The form described by Mr Malloch was faxed to the Registry of the Court and a copy was produced to the applicant.
As the opportunity afforded by the respondents was greater than the opportunity the applicant had sought in any event, it was unnecessary to require any further undertaking or to make any injunctive orders. Accordingly the ex parte application for injunctive relief was dismissed.
Within a short time, a judge of this Court ordered that the matter be listed for a settlement conference before a Deputy District Registrar on 13 January 2011. That conference was not fruitful.
There were subsequent orders made for the matter to be listed for directions on 5 April 2011 at 10.30 am. On that occasion, I ordered that the applicant file and serve either a statement of claim or a further affidavit stating what issue, if any, raised in earlier affidavits had been resolved and stipulating all other matters remaining in issue between the parties.
The respondents had already, by that time, foreshadowed making an application for dismissal of the proceedings. Such an application was filed on 6 May 2011. It was supported by an affidavit of the first-named respondent (Mr Denniss).
Several attempts were made to find other solutions to the applicant’s concerns. A referral to pro bono counsel to advise the applicant did not meet with success. I have considered the possibility of appointing amicus curiae but in a case which is seemingly hopeless, to do so does not seem appropriate. While the applicant undoubtedly feels genuinely aggrieved, the position of the respondents and the public interest in use of the Court’s services are also factors to be considered. Persons against whom well-founded complaints at law cannot be sustained should not be required to endure, at length, serious but misplaced accusations and complaints. The Court should not be a vehicle for that practice.
Ultimately it was necessary in the absence of any other resolution to list the summary judgment application. The applicant has, subsequent to filing those submissions, filed various documents such as a notice of motion to issue subpoenas to the respondents which motion was adjourned pending consideration of the dismissal motion. The applicant has also filed further affidavits which contain material which is highly inadmissible and contain no material which could possibly support any cause of action in this Court.
THE APPARENT NATURE OF THIS CLAIM
The applicant’s claim is difficult to follow, to say the least. The application and supporting affidavit suggests that the claim was brought under the provisions of the former Trade Practices Act. However, the Form 5 application then goes on to speak of ‘legal complications devolving on the suicide of the applicant’s husband’ and the absence of financial assets she has suffered as a consequence. The applicant proceeds to recount a series of most unfortunate events, first, in London and then subsequently in various courts in Western Australia arising from legal action she has taken against the ‘putative Owner’ of the unit she rented at 76 Broadway, Nedlands, Western Australia.
The applicant says that her case ‘devolves on misfeasance, deception and unconscionable conduct by the Respondents in relation to the applicant’s occupation of the residential rental unit’. She says that that conduct was brought about as a result of litigation commenced in March 2010 under the Residential Tenancies Act 1987 (WA) for rent arrears allegedly owed by her. That resulted in legal proceedings in various State courts over the next nine months. There was reference then to one of the respondents being complicit with the witnessing of a ‘fraudulent’ enduring power of attorney document, ‘triggering five years of litigation in the Supreme Court of Western Australia’ and an allegation that the respondents attempted to cause her to be detained under the Mental Health Act 1986 (WA). Much of this material is conveyed in a narrative form.
Shortly put, and doing the best one can, it seems that the applicant’s complaint is that the alleged breaches of State legislation for which the she contends and has contended in various State courts is conduct that is unconscionable, giving rise to some additional relief under the former Trade Practices Act in this Court.
RESPONDENT’S SUBMISSIONS IN SUPPORT OF THE MOTION
Mr Dennis’ affidavit confirms that the applicant was a tenant at the Premises. The other respondents’ connections with the applicant are also described. Mr Malloch and Avon-Smith Pty Ltd trade as John Malloch Real Estate agent which manages the property. Mr Paul Avon-Smith is a director of Avon-Smith Pty Ltd and corporate trustee of the Avon-Smith Family Trust. Mr Craig McIntosh is the barrister who acts on instructions from the respondents’ solicitors, Muries Lawyers and M/s Margaret Blaker was an elderly neighbour of the applicant.
Mr Denniss explained that since about September 2009, the applicant was a periodic tenant in the property and liable to pay rent of $300 per week. She paid rent until approximately January 2010. An eviction order was made by Magistrate Hawkins on 17 September 2010 on the basis of outstanding rent which was then due.
The applicant brought an ex parte application for a stay of that order before Martin J in the Supreme Court of Western Australia. No orders were made. The matter came, next, before McKechnie J in that Court and on 13 October 2010 his Honour dismissed the applicant’s application for a review of the Magistrate’s order.
In Hart-Roach v Magistrate J A Hawkins [2010] WASC 282, McKechnie J recorded (at [3]-[9]) that:
3 Proceedings in various forms have been ongoing since January 2010. The applicant has filed two voluminous affidavits of 16 September 2010 and 12 October 2010 outlining the proceedings, but it is only necessary to focus on the proceedings that led to the eviction order.
4 On 9 June 2010 the owner of the premises issued a notice under the Residential Tenancies Act, s 64, requiring the applicant to vacate the unit no later than 11 August 2010. On 12 August 2010 the owner issued proceedings numbered 12178/10 for termination of the periodic tenancy and an order for possession.
5 Hearings under the Residential Tenancies Act must be expeditious. The magistrate heard the matter on 26 August and then on 3, 8 and 17 September 2010. Proceedings were adjourned on each occasion at the request of the applicant until the hearing on 17 September 2010.
6 The applicant did not attend court on 17 September 2010. The magistrate made an eviction order in her absence. On 24 September 2010 the magistrate made a suspension order under the Civil Judgments Enforcement Act 2004 (WA) until today.
7 The applicant was aware of the hearing on 17 September 2010. Instead of attending the hearing, she chose to attend the Supreme Court and file papers in connection with this application. She also had a medical certificate dated 15 September 2010 which reads:
"To whom it may concern: This is to certify the above person is medically unfit to appear in Court on the 17 of September."
8 No explanation was given why she was unfit. This certificate was not made available to the Magistrate before the hearing on 17 September 2010. …
On 18 October 2010, the applicant sought a stay pending appeal. The stay application was refused.
On 19 October 2010, the applicant sought an injunction, such application was also dismissed by Allanson J. On the following day, she was evicted from the property. She appealed the decision of McKechnie J to the Court of Appeal but that appeal was discontinued in February 2011.
In the meantime, the applicant issued proceedings on 21 July 2010 in the District Court of Western Australia against Messrs Denniss, Malloch and Avon-Smith Pty Ltd for claims resting on the same legal basis as those sought to be advanced in this proceeding. Specifically, that claim (which I am informed by Mr McIntosh has still not been discontinued) seeks:
1.Damages for breach of section 10 of Fair Trading Act 1987 (WA), further or alternatively section 52 of the Trade Practices Act 1974 (Cth) in relation to:
aThe First Defendant by his agent the Second Defendant further or alternatively the Third Defendant;
bFurther or alternatively the Second Defendant;
cFurther or alternatively the Third Defendant by his partner the Second Defendant.
in about September 2008 purporting to change the conditions of the lease agreement between the Plaintiff and the Defendant over Unit 4, 76 Broadway Nedlands WA 6008 to, amongst other things, retrospectively make it a fixed term lease as opposed to a periodic tenancy and to retrospectively alter the conditions pertaining to rent increases.
2.Compensation pursuant to section 15(2) of the Residential Tenancies Act 1987 (WA) for loss and damage caused by the breach of the lease agreement between the Plaintiff and the First Defendant noted in paragraph 1.
3.Compensation pursuant to section 15(2) of the Residential Tenancies Act 1987 (WA) for the Defendant’s use of a parking space between the period from about 1 August 2007 to about 29 April 2010. this parking space forming part of the lease agreement between the Plaintiff and the First Defendant noted in paragraph 1.
4.Recovery of amounts paid under a mistake of law, further or alternatively mistake of fact, pursuant to section 83 of the Residential Tenancies Act 1987 (WA) relating to the lease agreement between the Plaintiff and the First Defendant noted in paragraph 1.
5.A declaration form this Honourable Court under section 32 of the of the Residential Tenancies Act 1987 (WA) that from 16 April 2010 the rent payable by the Plaintiff under the lease agreement between the Plaintiff and the Defendant noted in paragraph 1 has been excessive and that the Defendant refund any excess paid between 16 April 2010 to the date this Honourable Court makes its declaration.
6.Any further orders as this Honourable Court thinks appropriate.
7.Interest on such compensation, further and alternatively damages, to which the Plaintiff’s may be entitled from the date on which the losses occurred to the date of judgment or payment, pursuant to section 32 of the Supreme Court Act 1935 (WA).
8.Costs
The respondents have complained since at least May and June 2011 that the endorsement of the claims in the District Court of Western Australia writ makes it clear that the claims being pursued in that court, which the applicant refuses to discontinue, are the same claims in respect of which she has issued proceedings in this Court. As a consequence of her conduct in pursuing the same matters in this Court, she has committed an abuse of the process of the Court (Australian Associated Motor Insurers Ltd v NRMA Insurance Ltd (2002) 124 FCR 518).
The respondents submit, correctly, that there is no proper complaint against M/s Blaker, the former neighbour of the applicant in any of the applicant’s affidavits, the Avon-Smith Family Trust is not a legal entity capable of being sued, the barrister, Mr McIntosh, is not capable of being sued in these proceedings and no cause of action is made out. The respondents, John R Malloch Real Estate, Avon-Smith Pty Ltd and Mr McIntosh were agents of Mr Denniss acting on behalf of Mr Denniss in carrying out the activities, ‘all of which have been endorsed by the State courts’.
The respondents also rely upon s 26 and s 12A of the Residential Tenancies Act 1987 (WA) which make it clear there is no jurisdiction in this Court referable to those matters.
To the extent that the applicant has complained of the ‘punitive’ nature of the matters before the State courts and the extent to which she is seeking a review of either State legislation or any matter that was done in a State court, this Court has no jurisdiction in relation to residential tenancy matters.
Finally, the respondents contend that all of the applicant’s claims are so inextricably tangled with matters that are not justiciable by this Court, irrelevant matters and/or unfounded and scandalous suspicions such that there is no arguable cause of action that is justiciable by the Court. Alternatively, if there were one, then such cause of action has no reasonable prospects of success in terms of s 31A(2) of the Federal Court of Australia Act 1976 (Cth).
CONSIDERATION
The summary judgment application, having been filed six months ago and supported by a brief affidavit and submissions, was opposed by the applicant but not before she sought an adjournment of the application. The grounds of the adjournment were unclear but it had been made clear by the respondents, some months before, that they were relying on their written submissions filed on 3 June 2011.
Adjournment refusal
On the day before the return date of the respondents’ application for dismissal, the applicant filed a motion for the following orders:
1.That the Hearing of the Respondents’ Submissions in Support of the Amended Motion to Have These Proceedings Summarily Dismissed be adjourned until the following matters have been dealt with by the Court.
i)Orders that documents showing the current corporate status of John Malloch Real Estate, Avon-Smith Pty Ltd. and the Avon-Smith Family Trust and evidence that these entities are currently functional under these titles;
And
All relevant documents dealing with the Registration with ASIC in February, 2011 of the corporate entity MARS Pty Ltd. which operates from the offices of the former John R. Malloch Real Estate Company, and with the same principals and employees at the time of this Registration.
ii)That Bruce Denniss produces to the Court evidence of his ongoing beneficial Ownership of Unit 4, 76 Broadway, Nedlands 6009; and all records of his “Directions” to the other Respondents in this case, both open and privileged as from 2006.
iii)An order that all the Voice recordings of each and every hearing before the Magistrates Court be brought before the Federal Court.
iv)That the applicant is granted permission to serve the writs of subpoena for which she has already applied for permission to this Court.
And the Court provides Directions as to the protocols of the Applicant issuing further writs of subpoena on Dr. Neil Beck; the MHERL Psychiatric Emergency Team; the Commissioner for Police and the Office of the Public Advocate.
v)Directions as to the protocols of bringing before the Federal Court, General Division the matters contained in the Cases CACV 130/2011 and CACV 131/2011 which are currently before the Court of Appeal of the Supreme Court.
The applicant’s motion seeking adjournment of the dismissal application was accompanied by two extensive affidavits. The first of those is better characterised as being submissions in opposition to the summary judgment application. It is difficult to glean anything in that affidavit/submissions on which the applicant could rely to assist her in her application or in the application for an adjournment.
The other is a more substantial affidavit of 153 pages attaching many documents, almost all of which go to the Magistrates Court proceedings, including transcript of an interlocutory hearing before Pullin JA in the Court of Appeal of the Supreme Court of Western Australia in relation to a proposed appeal from the judgment of McKechnie J. In the course of exchanges with his Honour, the applicant indicated that the proceeding in the Federal Court was an action essentially for damages taken by her against the people involved in the Magistrates Court case. The repeated theme offered by the applicant when describing the proceedings in this Court is that they are an action in damages against the persons who instigated and were involved in the Magistrates Court proceedings. There is no discernable basis in any of the materials which can give rise to a cause of action capable of being heard in this Court.
I was unable to ascertain what utility (in those circumstances) an adjournment of the application would afford. As against that, it is entirely inappropriate in circumstances where the applicant has done nothing to satisfy the Court as to an arguable case with reasonable prospects of success that the respondents should be required to have this misguided litigation hanging over their heads.
There is a public interest in determining the application. The resources of the Court are under substantial pressure in resolving disputes which are of a seriously arguable nature. Despite having almost a year to identify a cause of action, the applicant has been unable to do so.
The oral submissions made by the applicant in response to the respondents’ application and written submissions were as follows:
Well, the submissions don’t deal with the claims that I have made on the form 5 application, your Honour, that this case has now been before this court for almost a year, that I have made application for subpoenas and for orders to obtain the documentation and the documents from these respondents which would give a foundation to the case that I’m trying to raise. And the Magistrates Court doesn’t deal with issue of the kind of financial misfeasance of the – of these LJ Hooker lease documents which are nothing to do with this company and the manipulation of my life by these people. And so that what has gone on before this court month after month until, you know, we had a break in June while I dealt with an equivalent case where I – from where I moved to is, you know, this analysis of my mental state which, even if I was completely deranged, the issues before this court are very, very simple, your Honour.
That they are issues that these people in what should have – you know, what was a simple commercial transaction that I live there for a number of years, paid my rent, improved their property and caused no problems there whatsoever – quite the contrary – turned into a nightmare beyond comprehension which has done huge damage to me and to my status over something of which there was no cause at all. The case went to trial in the Magistrates Court at the beginning of June and was dismissed because they couldn’t provide any evidence of rent arrears at all, and this was after them trying to extort money from me for a year at a time when my life was in freefall. The purpose behind this is what happened at the time when this court intervened was that after they locked me out of the flat on 19 October and I had 30 minutes to get out of there with my bird and my clothes and almost nothing else.
They locked me away from the flat. They raised issues both with the Mental Health Law Centre and with the Mental Health Services, that I wasn’t permitted to go in there and the Magistrate had ordered that the property was theirs. Now, there’s no proof of any of that, and of course that was never ordered. How they managed to get the order that came before this court on 24 December on the grounds that everything was abandoned when they deliberately sequestrated everything, including all of my documents that they could get their hands on. That is something which should be before this court, that there was an intention from the outset for them to steal both my property and all of my intellectual assets and legal documents. That was what fuelled this because there was no other reason as the time went on behind it.
Although the applicant contends that the respondents failed in the Magistrates Court, that was not ultimately the case as the history recounted above (at [15]-[18]) and produced in her own affidavit reveals. In any event, on the abuse of process point, the action cannot continue.
It is not possible to appreciate any arguable cause of action or one that has any reasonable prospect of success.
CONCLUSION
The application will be dismissed for the reasons identified above (at [2]). The applicant is to pay the costs of the respondents, to be taxed if not agreed.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher. Associate:
Dated: 16 February 2012
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