Hunter v RSPCA
[2006] WASC 215
•26 SEPTEMBER 2006
| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS |
| CITATION | : | HUNTER -v- RSPCA [2006] WASC 215 |
| CORAM | : HASLUCK J | ||
| HEARD | : 15 SEPTEMBER 2006 | ||
| DELIVERED | : 26 SEPTEMBER 2006 | ||
| FILE NO/S |
| ||
| BETWEEN | : LINDSAY HUNTER |
Applicant
AND
RSPCA
Respondent
Catchwords:
Vexatious proceedings - Application by declared vexatious litigant for leave to institute proceedings - Nature of proposed proceedings - Proposed application to vary bail condition concerning not contacting prosecution witnesses - Proposed application for ex parte interlocutory injunction against RSPCA - Argumentative and unsubstantiated allegations of fraud, deceit, cruelty, fabrication of evidence, non-disclosure and extortion - Application for leave refused - Turns on own facts
Legislation:
Animal Welfare Act 2002 (WA), s 42, s 44, s 72
Bail Act 1982 (WA), s 14, Sch 1, Pt C, s 1(a)
Vexatious Proceedings Restriction Act 1930 (WA), s 3
Vexatious Proceedings Restriction Act 2002 (WA), s 6(6), s 6(7)
[2006] WASC 215
Result:
Application for leave to apply to vary bail condition and application for leave to file ex parte interlocutory injunction refused
Category: B
Representation:
Counsel:
| Applicant | : | In person |
| Respondent | : | Mr D J Pratt |
Solicitors:
| Applicant | : | In person |
| Respondent | : | Jackson McDonald |
Case(s) referred to in judgment(s):
American Cyanamid Co v Ethicon Ltd [1975] AC 396
Attorney-General v Hunter [2002] WASC 189
Bates v Lord Hailsham of St Marylebone (1972) 1 WLR 1373
Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148
Graham v Campbell (1878) 7 Ch D 490
Hunter v Commissioner of Police [2003] WASC 10
Re The Attorney General of Western Australia the Hon Mr Jim McGinty or his
delegate; Ex parte Hunter [2003] WASC 149
Case(s) also cited:
Mallard (2005) 157 A Crim R 121
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HASLUCK J:
Introduction
1 The applicant, Lindsay Hunter, has applied for leave to institute
proceedings pursuant to provisions of the Vexatious Proceedings Restriction Act 2002 (WA). The applicant relies upon a supportive affidavit sworn by himself on 15 August 2006 to which is exhibited an unsworn affidavit by himself concerning the proposed notice of motion for variation of bail. The contents of the unsworn affidavit are said to be true and correct.
2 An application for leave to proceed is clearly necessary. On
2 August 2002 I made an order in accordance with s 3 of the Vexatious Proceedings Restriction Act 1930 (WA) that no legal proceeding should be instituted by the applicant in the Supreme Court, or in any inferior court, unless the applicant first obtained the leave of the Supreme Court after satisfying it that the proposed proceeding would not be an abuse of the process of the Court in which it was intended to be instituted and that there was prima facie ground for such proceeding. My reasons for decision are set out in Attorney-General v Hunter [2002] WASC 189. Notice of the order in question was published in the Government Gazette on 16 August 2002.
In the course of my reasons I made these observations at [108]:
"108
The evidentiary materials establish that since 1991 the respondent has made 27 applications for violence restraining orders, brought 48 private prosecutions, commenced three civil actions and lodged 33 single Judge appeals and one Full Court appeal. The great majority of these proceedings have been commenced since 1998. Save for one application for a violence restraining order in which the person against whom the order was sought consented to the application, and for a number of unresolved private prosecutions, every other matter instituted by the respondent has either been dismissed, struck out or not pursued by the respondent. The frequency and repetitive nature of these proceedings clearly demonstrates a habitual and persistent pattern of instituting proceedings by the respondent."
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I went on to make these further observations:
"110 I am satisfied also that in the exercise of its discretion the Court should grant a restrictive order. Such an order does not extinguish or remove the respondent's entitlement as a citizen to litigate and to seek redress at law for his grievances. A restrictive order simply controls the manner in which the right is exercised. 111 The respondent has repeatedly sought violence restraining orders and brought private prosecutions against a large number of people without any reasonable foundation. The concern and distress, and potential for damage to reputation and professional embarrassment, which those people would be likely to experience as a result of the institution of the proceedings is self evident. Further, only a few of the proceedings have been brought against government officials with access to publicly funded legal assistance. The cost to those persons of securing legal representation is a factor counting towards the grant of an order under s 3 of the Act. 112 Further, the respondent continues to institute such proceedings, and has continued to indicate his intention to institute further proceedings on plainly vexatious grounds. For these reasons I am persuaded that in the exercise of the discretion under s 3 of the VPR Act 1930 it is appropriate that a restrictive order be granted."
5 I note in passing that the 1930 Act was later repealed by the
Vexatious Proceedings Restriction Act 2002 which came into operation on 28 September 2002. I will look at the provisions of the 2002 Act in due course.
Background to the present application
6 The applicant's originating summons for leave to institute
proceedings dated 14 August 2006 came before Blaxell J of the Supreme Court on 31 August 2006. The applicant appeared in person on that occasion and in the course of discussion confirmed that the originating summons comprised an application for leave to commence two sets of proceedings being, first, an application to vary bail in respect of certain proceedings in the Magistrates Court whereby the applicant is charged with offences pursuant to provisions of the Animal Welfare Act 2002
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(WA) namely, five charges of cruelty to animals and two charges of obstructing an inspector; second, an application for an interlocutory injunction against the RSPCA, as a party said to be responsible for the prosecutions the subject of the first application.
7 The orders sought by the applicant in respect of the proposed
proceedings are set out in the applicant's originating summons in these
terms:
"1. There be an order that leave be granted to institute proceedings in this matter for bail or variation of bail pursuant to the Vexatious Proceedings Restriction Act 2002. 2. There also be leave to file a Chambers Summons for an ex parte interlocutory injunction on the basis of animal welfare and prevention of cruelty and to prevent disposal of property in dispute."
During the course of the hearing before Blaxell J on 31 August 2006 his Honour noted that before leave could be granted an order for service had to be made pursuant to provisions of s 6(6) of the 2002 Act. Such an order would ensure that a copy of the application and accompanying affidavit was served on the Attorney-General and party against whom the proceedings were to be instituted so that those parties would be afforded an opportunity to oppose the application for leave. Accordingly, his Honour adjourned the hearing for a period of 14 days so that service of the papers could be effected.
9 When the matter came on for hearing before me in due course on
15 September 2006 I noted that the RSPCA (being the body named as respondent in the originating summons and a party likely to be affected by the proposed proceedings) was represented by counsel. There was no appearance for or on behalf of the Attorney-General for the State of Western Australia. However, I was reliably informed that the papers had been served and that the Attorney-General did not wish to appear or be heard. This information was conveyed to the Court by the officer at the Crown Solicitors Office responsible for obtaining the original restrictive order and I was therefore persuaded to proceed upon the basis that the Attorney-General would simply abide the outcome of any ruling made by the Court.
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Evidentiary issues
10 At the hearing before me counsel for the RSPCA sought to adduce in
evidence the affidavit of Robin Edward Moore, a prosecuting inspector employed by the RSPCA, which was sworn on 15 September 2006. The applicant objected to this affidavit being admitted into evidence on the grounds that its late delivery did not comply with the rules and he had not been afforded a sufficient opportunity to consider the contents of the affidavit.
11 I allowed the applicant a short opportunity to review the contents of
the affidavit before any ruling was made on the question of admissibility. As appears from the reasons I gave at the hearing, I was of the view eventually that the affidavit should be received as evidence, having regard especially to the fact that much of the Moore affidavit was limited to establishing the chronology of the relevant procedural events.
12 I am obliged to mention also that in the course of discussion about
evidentiary matters at the hearing I received in evidence as part of the applicant's case (marked Exhibit A) a bail undertaking signed by the applicant pursuant to an order made in the Midland Magistrates Court in respect of the subject prosecution. This document was admitted by consent and established as an agreed fact that, in strict analysis, the only condition to be observed during bail by the applicant was "Not to contact any prosecution witnesses except through a lawyer". I will return to the scope and effect of this bail condition in due course and to some related discussion bearing upon the preparation of the applicant's defence to the subject charges.
It will now be useful to look at the relevant events bearing upon the present application and at the evidence relied upon by the parties.
The relevant events
14 It appears from the Moore affidavit that on 18 May 2006 inspectors
from the RSPCA seized four dogs belonging to or under the control of the applicant pursuant to s 42 of the Animal Welfare Act. Section 42 of that Act provides that an inspector may seize an animal if he reasonably suspects that an offence under Pt 3 of the Act is being, or has been, committed in respect of the animal or under a warrant issued pursuant to s 60 of the Act. By s 42(2) an inspector who seizes an animal is to ensure that it is properly treated and cared for (including the provision of veterinary care if that is appropriate) until it is dealt with under other provisions of the Act.
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15 Further, it was said that on or about 24 May 2006, RSPCA inspectors
seized 39 dogs belonging to or under the control of the applicant and an unlicensed blue Toyota Hiace van belonging to the applicant pursuant to s 42 and s 43 of the Animal Welfare Act. Section 43 of that Act makes provision for seizure of any property that the inspector reasonably suspects is being, or has been, used to commit an offence under the Act or which may afford evidence of the commission of an offence. The thing seized is to be kept in safe custody and maintained in the condition it was in when it was seized.
16 It is said in the Moore affidavit that on 30 May 2006 the RSPCA
took possession of a further seven puppies from Mundaring Shire rangers.
17 The Moore affidavit went on to assert that on 2 June 2006 the
applicant filed an application in the Magistrates Court of Western Australia, Perth for leave to initiate proceedings pursuant to s 44(6) of the Animal Welfare Act for the return of his dogs and for other claims. The application included an application for leave to proceed pursuant to the Vexatious Proceedings Restriction Act.
18 In essence, the reason given for the application was that the RSPCA
had unlawfully and illegally obtained a warrant and seized 30 plus guide and disability dogs and about 10 puppies belonging to the applicant (with four more being taken without warrant). Further certain property of the applicant had been taken being a campervan and medical, toiletry, intellectual property, food, software, bedding, computers and parts and accessories.
19 In a supporting affidavit sworn 2 June 2006 the applicant asserted
that the matter was urgent and needed expediting because his physical and mental health was inextricably linked to his close association with his dogs who were his de facto family. He said that both the health and welfare of his dogs and himself was deteriorating on a daily basis "… and such personal and animal welfare damage has occurred in 2004 in very similar circumstances". There was said to be no valid reason why the dogs could not be immediately returned to him.
The applicant placed reliance also upon a letter dated 23 May 2006 written by himself to the Crime and Corruption Commission in which he made allegations of fraud against the Attorney-General and State Solicitor and certain legal practitioners. Reference was made also to "serious criminal acts of perjury" by these persons.
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21 According to the Moore affidavit, on 12 June 2006 in the Magistrates
Court of Western Australia, Perth, it was ordered that the applicant's application for leave to institute proceedings against certain named parties, including the RPSCA, was to be dismissed.
22 By prosecution notice dated 12 June 2006, proceedings were initiated
by Mr Moore against the applicant, being the charges arising under the
Animal Welfare Act mentioned in earlier discussion.23 It seems that on 16 June 2006, orders were made in the Magistrates
Court, Perth, that the applicant have leave to commence proceedings pursuant to s 44(6) of the Animal Welfare Act for the return of his dogs provided that such proceedings were commenced in the Magistrates Court, Midland, and were heard concurrently with the subject charges brought against the applicant. For ease of reference the subject charges are referred to collectively in the Moore affidavit as the "prosecution".
24 On or about 21 June 2006, Mr Moore received certain advice from
the Department of Local Government and Regional Development as a consequence of which he believed that the applicant had lodged an objection against the seizure of his dogs and vehicle with the Minister pursuant to s 72 of the Animal Welfare Act.
Procedural events
25 It appears from the Moore affidavit that the prosecution has been the
subject of appearances in the Magistrates Court, Midland, on 22 June, 25 July and 8 August 2006. The applicant was also briefly taken into custody for an alleged non-compliance with certain orders. Thus, at the hearing on 22 June 2006, orders were made to the effect that the applicant be released on a bail undertaking to return to the Court on 25 July 2006. The applicant was not to contact any witness involved in the prosecution other than through a lawyer. It seems that the Magistrate also gave a direction that the applicant was permitted to have a veterinarian nominated by him examine the subject dogs by prior arrangement with Mr Moore as the responsible RSPCA prosecuting inspector. I understand that the RSPCA will abide by that direction. This will allow for the dogs to be examined by a veterinarian nominated by the applicant by prior arrangement so that he may prepare his defence in respect of the prosecution.
26 The Moore affidavit went on to say that at the Midland Magistrates
Court on 25 July 2006 the applicant was served with "disclosure documents" by Mr Moore, apart from a report by Associate Professor
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P Irwin of Murdoch University. The disclosure documents included a DVD and CD copy of materials.
27 On 1 August 2006 the RSPCA filed an application pursuant to
s 44(8) of the Animal Welfare Act in the Magistrates Court, Midland,
seeking orders for the forfeiture of the applicant's van.28 According to Mr Moore, at a hearing in relation to the prosecution in
the Magistrates Court, Midland, on 8 August 2006 the RSPCA was directed to serve a further copy of the DVD and CD provided with the disclosure documents to the applicant. Mr Moore provided a further copy of the DVD and CD to the applicant at the Magistrates Court, Midland, on 11 September 2006.
29 On 14 August 2006 the applicant initiated these proceedings under
the Vexatious Proceedings Restriction Act. It is said that he then served certain letters of demand on the RSPCA. The letters in question are exhibited to the Moore affidavit as Annexure REM6 and are dated respectively 18 August and 10 August 2006 (although the latter was possibly created and sent on 19 August 2006).
30 The 18 August letter is described as a "final demand". In that letter
the applicant alleges that the RSPCA has failed to reply or comply with at least three previous requests for lost income in respect of the period 24 May 2006 until 18 August 2006 being a period of 86 days. The final demand and account is said to be for $215,000 due and payable within 7 days by close of business Friday, 25 August 2006. Recovery action by debt collectors is threatened and it is said also that the RSPCA is liable to the applicant for $2500 for each day after 18 August 2006. It is said that injury, loss and damages and loss of future profits, cloning costs and rehabilitation costs will be recovered in the Federal Court for deceptive and misleading conduct and fraud and for the current damage to the applicant's new breed of golden kelpies including DNA (genetic) damage, biological damage and psychological damage. The letter concludes by saying that "Application has been made to the Supreme Court for the RSPCA to be unincorporated".
31 The letter dated 10 August 2006 is again characterised as a "final
demand". The applicant notes that the RSPCA has refused to reply or comply with three previous requests for the payment of $75,000 being for the admitted deaths of three of the applicant's dogs (value $25,000 each) whilst in the RSPCA's care. Recovery action by debt collectors is threatened. It is said also that "In addition to the $75,000 liability for the
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deaths of three of my dogs you will be liable for damages in excess of $1,000,000 for loss of future profits from these dogs genes and breeding and cloning".
32 The Moore affidavit contains a passage to the effect at par 16 that the
claims made in the letters of demand are denied. The affidavit went on to say that on 28 August 2005 the applicant filed a Form 6 application in a prosecution in the Magistrates Court, Midland ("the Hunter application").
33 I will not traverse the full particularity of the Hunter application. An
order was sought that Magistrate Roberts stand down and/or disqualify himself from hearing any issues to do with the applicant on the grounds of real or perceived bias and with reference being made to "the ridiculous bail condition" and "another ridiculous bail condition" not to allow the applicant to speak to witnesses who have clearly fabricated evidence. It was said that all of this violated the applicant's constitutional right to a fair hearing of all the issues and violated his right to obtain full information in order to defend himself, having been refused legal aid. The subject bail condition was said to be clearly an attempt or has the effect of enabling the RSPCA to fabricate evidence and to conceal or not disclose facts and documents and veterinary records and evidence and to coach the witnesses to falsify testimony and documents and fabricate evidence.
34 Disclosure was sought as to the location of the dogs and puppies in
issue and the records concerning their care. Various orders were sought concerning disclosure of evidentiary materials and of particulars bearing upon the prosecution. Orders were sought for inspection of the dogs and puppies in question. Further orders were sought which were directed to the regularity of the procedures underlying the prosecution including full disclosure of "the forged letter" said to have been created by a certain person on or about 25 June 2006.
35 It is said in the Moore affidavit that on 11 September 2006, there was
a further hearing in relation to the prosecution and a hearing in relation to the Hunter application at the Midland Magistrates Court. To the best of the deponent's knowledge and understanding, the Magistrate declined to make any of the orders sought by the applicant in the Hunter application.
36 On 12 September 2006, Mr Moore was informed by the Midland
Magistrates Court that the hearing of the prosecution would be transferred to the Perth Magistrates Court with a further hearing to take place in the Midland Magistrates Court on 20 September 2006. I was informed by the applicant at the hearing before me that this latter hearing was simply in
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the nature of a mention date with a likelihood that it would be many months before the prosecution proceeded to a final hearing. Counsel for the RSPCA was not fully instructed as to this aspect of the matter and could not add to what I had been told.
The applicant's affidavit
37 The applicant's supporting affidavit sworn 15 August 2006 and
related materials bear upon the matters mentioned earlier and contain
various allegations, many of which are conspicuously argumentative.38 The applicant confirms that he is seeking leave with a view to
varying "… oppressive bail conditions that pervert and obstruct justice and deny me procedural fairness, natural justice and due process". In par 6 of the affidavit he refers to applications for leave previously made and goes on to assert that one of the important matters in issue is the requirement that there be full and complete disclosure of all material facts by the prosecution which has so far not been done. It is said that "There is a clear attempt to obtain a prosecution by fraud and by preventing me from speaking to people so that I may defend myself against such fraud and concealment and non-disclosure and fabrication of evidence …".
39 The applicant asserts in his unsworn affidavit (annexed to the sworn
affidavit) that he is seeking the removal of the bail conditions that prevent him contacting any witnesses except through a lawyer, especially as the applicant is unrepresented and unable to afford legal representation or to get legal aid. He wishes the bail conditions to be varied to allow unrestricted access to his campervan and related property and to his dogs and puppies. He also wishes to obtain unrestricted access to all witnesses and all relevant documents, videos and photos.
40 In a further unsworn affidavit (the contents of which are said to be
correct in his sworn affidavit) it is asserted that the subject dogs and puppies are a valuable new breed of golden kelpies bred and trained for guide and disability work and to create a new breed specifically for such work. They are said to be worth at least $25,000 each as trained and with some being worth in excess of $1 million for breeding. The dogs are needed to establish a global network for the breeding and training and other of his golden kelpie guide and disability dogs.
41 It is said by the applicant that the subject dogs and puppies, as to
their temperaments and genes, are being seriously damaged because incarceration leads to kennel madness. It is asserted that the dogs are presently being deprived of proper nurturing and stimulation. The
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affidavit contains further allegations of fraud and concealment by certain officers and employees. Reference is made also to the applicant's arrest as a consequence of an alleged non-compliance with obligations of disclosure imposed upon the applicant by Magistrate Roberts. It is said that this arrest and period in custody for some two hours gave rise to the bail condition now complained of that the applicant not contact any witnesses except through a lawyer.
42 It is said that the applicant will not get a fair hearing if he is unable to
speak to persons and vets who have made allegations against him or other persons in the RSPCA or outsiders that have his dogs. Reference is made to a refusal by Magistrate Roberts to vary an allegedly oppressive and unnecessary bail condition.
43 The applicant alleges in par 34 of this unsworn affidavit that the
RSPCA is attempting to obtain a prosecution by fraud and concealment and non-disclosure of material facts and by false and fabricated witness statements and by false and misleading vet reports induced by deceitful and knowingly false misrepresentations to the vets by a prosecution witness. It is said that the RSPCA has failed to call at least four rangers and four police officers and a health officer from Mundaring Shire who were present at the seizure on 18 and 24 May 2006, and other witnesses. It is said that the RSPCA are concealing the death of at least three of the dogs taken into custody and will not disclose the persons who were responsible for their welfare. It is said that the RSPCA owes the applicant at least $75,000 as a matter of statutory liability for the death of the applicant's dogs, plus damages for loss of future profits from breeding.
44 It is said that considering the great extent of fraud and deceit and
non-disclosure and extortion, the applicant is greatly concerned for his dogs and puppies' welfare and has no doubt that they may be deliberately cruelly treated by the RSPCA to further fabricate evidence that he did not properly care for his dogs.
45 Before leaving the applicant's affidavit, I feel obliged to observe that
the allegations made by the applicant are not corroborated by independent evidence or supported by expert opinion. They are not only extreme but also essentially argumentative assertions. They are contested by the defendant. Moreover, certain of the assertions appear to be inconsistent with the statutory obligations imposed upon the RSPCA to care for the dogs and with the other evidence before me that provision has been made in the Magistrates Court for disclosure of the prosecution case. Further directions have been given concerning access to the dogs. As to all of
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these matters, it remains open to the applicant to apply for further interlocutory orders as to disclosure or access in the Magistrates Court with a view to meeting or ameliorating the applicant's concerns about the fairness of the prosecution. In the absence of any evidence to the contrary, I must proceed from the premise that the learned Magistrate will conduct the proceedings before him in an impartial way.
Let me now turn to the provisions of the Vexatious Proceedings Restriction Act.
Statutory provisions
47 The 2002 Act contains transitional provisions. Section 12 of the Act
provides that where, before the day in which this Act comes into operation, an order has been made under s 3 of the 1930 Act that no legal proceedings shall, without the leave of the Supreme Court, be instituted by a person in the Supreme Court or in any inferior court, the provisions of the 2002 Act apply, with all necessary modifications, to and in relation to that order and that person as if an order had been made under s 4(1)(d) of the 2002 Act.
48 It follows from this that the restrictive order made pursuant to the
1930 Act whereby the applicant is not to institute proceedings without leave remains in force, and is to be treated as an order made pursuant to the 2002 Act.
49 In other words, s 4 of the 2002 Act authorises the Court to make an
order prohibiting a person from instituting proceedings without the leave of a court. Section 5 of the Act provides that proceedings are not to be instituted in contravention of an order under s 4(1)(d). By reason of the transitional provision, that section has to be read, as stating in the circumstances of the present case, that the proposed proceedings are not to be instituted by the applicant in contravention of the order made by me on 2 August 2002. Leave to proceed is required.
50 Section 6(1) of the 2002 Act provides that an application for leave to
institute proceedings is to be accompanied by an affidavit in support of the application. Section 6(3) states that the affidavit accompanying the application for leave is to list all the occasions on which the applicant has made an application for leave and to disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. By s 6(5) the Court is required to dismiss the application for leave if it considers that the affidavit does not disclose
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everything required to be disclosed, the proceedings are vexatious
proceedings, or there is no prima facie ground for the proceedings.51 I pause to note that by s 3 of the Act vexatious proceedings are
defined to mean 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 grounds; or (d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
52 Section 6(7) of the Act provides that leave is not to be granted unless
the Court is satisfied that the proceedings are not vexatious proceedings and there is a prima facie ground for the proceedings. It follows that a court will only grant leave to institute proceedings under s 6 of the 2002 Act if it is satisfied that there were prima facie grounds for the proposed proceedings, which grounds are not frivolous or vexatious and which are "arguable". Moreover, the grounds must be supported by an affidavit disclosing sufficient facts to reveal the prima facie grounds and that the proceedings are not vexatious proceedings: Hunter v Commissioner of Police [2003] WASC 10.
Let me now return to the circumstances of the present case.
The proposed application to vary bail
54 I understand from the evidentiary materials before me that the
applicant seeks leave to pursue an application to the Supreme Court for an order varying the bail condition previously imposed so that he will be at liberty to contact witnesses involved in the prosecution other than through a lawyer.
55 The applicant contends that such a condition is oppressive because
he cannot afford to be and in fact is not represented by a lawyer with the result that the condition is unduly prohibitive. Moreover, he submits, the condition in its present form prevents him from contacting veterinarians and others who may have information to impart about the present welfare of his dogs and puppies and which will be relevant to the preparation of his defence to the prosecution.
56 At the hearing before me I raised an issue as to whether the applicant
had to obtain leave in order to make such an application. It occurred to me that an application for bail could possibly be regarded as an incident of proceedings commenced not by the applicant but by others, and that as the
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restrictive order was aimed essentially at restricting proceedings commenced by him, leave might not be necessary. However, in the course of discussion, my attention was drawn to the definition of "proceedings" in s 3 of the 2002 Act. That term extends to any proceedings including interlocutory proceedings taken in connection with or incidental to proceedings pending before a court. Accordingly, in the end, because the question of bail is a matter incidental to the prosecution, and it is the applicant who seeks to vary the condition, I consider, having regard to the definition of "proceedings", that he must obtain leave.
57 I understand from the materials before me that he sought to vary the
condition by applying to the Magistrate for relief but relief was refused. Section 14 of the Bail Act 1982 (WA) provides that a Judge of the Supreme Court may, in accordance with the Act, revoke or vary any bail previously granted by any other judicial officer. Thus, having regard to that provision and to the provisions of the Vexatious Proceedings Restriction Act 2002, the applicant is required to seek, and does seek, leave to institute an application to the Supreme Court to vary the subject bail condition on the ground that there is a prima facie or arguable basis for asserting that the condition should be varied and the proposed application to vary bail is not a vexatious proceeding within the meaning of the 2002 Act.
58 The applicant's supporting affidavit in purported compliance with the
requirements of the 2002 Act refers to previous occasions on which he has made application for leave and to other facts material to the application. I note in passing that previous applications for leave were refused by Pullin J in Hunter v Commissioner of Police (supra) and by Heenan J in Re The Attorney General of Western Australia the Hon Mr Jim McGinty or his delegate; Ex parte Hunter [2003] WASC 149.
59 I am conscious that the applicant has a deeply held desire to ascertain
the state of health of the dogs and puppies taken from him. However, I am not satisfied in the manner required by s 6(7) of the 2002 Act that the applicant has advanced a prima facie or arguable case in favour of the proposed variation.
60 It is not uncommon in a prosecution for a condition of the kind
complained of to be imposed as a means of protecting prosecution witnesses from possible harassment and as a means of protecting the integrity of the trial process. The criteria governing the grant of bail is set out in Pt C of Sch 1 to the Bail Act. Explicit reference is made in s 1(a), as a matter bearing upon the grant of bail, or the imposition of a bail
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condition, as to whether an accused may interfere with witnesses or otherwise obstruct the course of justice, whether in relation to himself or any other person.
61 I consider that such a condition is justified in the circumstances of
the present case where there is evidence before me that the applicant harbours a very low opinion of those associated with the prosecution case and is given to making extreme and unsubstantiated allegations. Moreover, I am of the view that in circumstances where the information sought by the applicant can be allowed for by directions concerning access of the kind presently made by the Magistrate (with further directions or disclosure being made in that regard if necessary as the prosecution proceeds) the bail condition complained of cannot be regarded as a complete barrier to what the applicant wishes to achieve or be characterised as oppressive.
62 In addition, I am of the view that in the special circumstances of the
present case, if leave were to be granted, the application to vary bail will be in the nature of a vexatious proceeding in that the applicant will be seeking access to the prosecution witnesses not simply to prepare his defence to the prosecution. He clearly has in mind, as evidenced by his letters of demand and his determination to apply for an injunction against the RSPCA, to approach the prosecution witnesses with a view to underpinning his projected claim for damages and possibly to substantiate his allegations of fraud and perjury, being allegations which, in my view, are not supported by the evidence before me.
63 Put shortly, I infer that he is seeking to serve a purpose extraneous to
the prosecution and, to my mind, there is a real likelihood, having regard to what he has alleged previously, that the approaches will lead to harassment and the exploration of many collateral issues.
64 When I draw these considerations together I am of the view that the
contemplated proceedings will amount to an abuse of process and must therefore be characterised as a vexatious proceeding. For this reason also, as to the first of the two proposed applications, I consider that leave to proceed must be refused.
The proposed application for an injunction
65 In par 2 of the applicant's originating summons leave is sought to file
a chamber summons for an ex parte interlocutory injunction on the basis of animal welfare and prevention of cruelty and to prevent disposal of property in dispute.
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66 It follows from earlier discussion that before leave can be granted I
must be satisfied that the applicant has disclosed all facts material to the application, whether supporting or adverse to the application, that are known to the applicant. I must be satisfied also that the proposed proceedings are not vexatious and that there is a prima facie ground for the proceedings; that is, that the applicant has an arguable case.
My approach to these issues must necessarily be influenced by the principles governing the grant of an ex parte interlocutory injunction.
68 I will not review the relevant principles at length. In essence, the
applicant must satisfy the Court that the claim is not frivolous or vexatious, and that there is a serious question to be tried: Castlemaine Tooheys Ltd v South Australia (1986) 161 CLR 148 at 153. If there is a serious question to be tried, the Court must consider whether the balance of convenience is for or against the grant of the injunction. If common law damages would be an adequate remedy, and the respondent would be able to pay them, an injunction would not normally be granted: American Cyanamid Co v Ethicon Ltd [1975] AC 396 at 408. Where other factors are evenly balanced, it is appropriate to preserve the status quo.
An ex parte application may be sought in a case of real urgency: Bates v Lord Hailsham of St Marylebone (1972) 1 WLR 1373. However, even so, relief of that kind will usually only be granted for a short period so that both sides can be heard or be given the opportunity to be heard. An ex parte injunction should not normally be granted against a defendant who has notice of the application which he is willing and able to contest: Graham v Campbell (1878) 7 Ch D 490 at 493.
70 I noted in earlier discussion that the allegations made by the
applicant, which include allegations of fraud, concealment and perjury, are extreme. They are not substantiated by independent evidence. Moreover, that which purports to be the evidence relied upon by the applicant, consists mostly of argumentative assertions, although it is undoubtedly a fact that the dogs and puppies in question, which are obviously a matter of deep concern to him, have been removed from his possession along with other items of property.
71 When I turn to consider the balance of convenience, and issues
concerning preservation of the status quo, I must give weight to the fact that proceedings are on foot in the Magistrates Court which will allow for a review of the relevant evidence in an orderly way and an inquiry into matters the subject of the seizure and related prosecution. There is a
[2006] WASC 215
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prospect of the applicant obtaining relief in these proceedings if the charges the subject of the prosecution cannot be substantiated and the allegations made by the applicant are thought to justify relief. In these circumstances, as a matter bearing upon the exercise of the discretion to grant an injunction, it might be thought that the proposed proceedings in the Supreme Court might simply give rise to findings inconsistent with those to be made in the Magistrates Court and complicate the matter. I must keep in mind also that those presently in possession of the applicant's dogs and property are subject to certain statutory duties of care.
72 Accordingly, for all these reasons, I am not satisfied that the
applicant has sufficient grounds for the grant of an ex parte interlocutory injunction of the kind contemplated in that an arguable case has not been made out. Further, and in any event, bearing in mind the history of the matter and the nature of the allegations made by the applicant, I am of the view, having regard to the evidence before me, that the proposed application for an interlocutory injunction will essentially be serving an extraneous purpose and will be in the nature of a vexatious proceeding. Accordingly, I am not prepared to grant leave.
Summary
73 The applicant's application for leave pursuant to the Vexatious Proceedings Restriction Act 2002 in respect of his two proposed applications, namely, an application to the Supreme Court to vary the subject bail condition and his proposed application for an ex parte interlocutory injunction, will not be granted. I will hear from the parties as to whether any other orders or directions are required.
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