Jones v The Barossa Council

[2014] SASC 2

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

JONES v THE BAROSSA COUNCIL & ANOR

[2014] SASC 2

Reasons for Decision of The Honourable Justice Nicholson

14 January 2014

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS

Referral from Registrar for direction pursuant to Rule 53 of the Supreme Court Civil Rules 2006 (SA) that he reject and refuse the filing of a proposed notice of appeal to the Full Court by an unsuccessful appellant to a single judge of this Court – whether the document, on its face, is an abuse of process. 

Held:  Proposed notice of appeal an abuse of process; Registrar directed to reject it for filing.

Limitation of Actions Act 1936 s48; Supreme Court Rules 2006 (SA) Rule 53, referred to.
Westwill Pty Ltd & Ors v Norman Waterhouse Pty Ltd & Anor [2009] SASC 391; Westwill Pty Ltd v Norman Waterhouse & Ors unreported District Court of South Australia, Judge Soulio (30 April 2008); Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev [2011] SASC 127; Staats v United States of America (1992) 66 ALJR 793; Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99; Re Davison (1997) 147 ALR 259; Manolakis v District Registrar (SA) (2008) 170 FCR 426; Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89; Eastman v Higgins (2007) 210 FLR 464; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193; Ramsey v Skyring (1999) 164 ALR 378, considered.

JONES v THE BAROSSA COUNCIL & ANOR
[2014] SASC 2

Civil

NICHOLSON J.       

Introduction

1. William Paul Jones has sought to file a notice of appeal to the Full Court.  He wishes to appeal against the summary dismissal, by a judge of this Court, of an appeal by Mr Jones and a number of other persons and entities against a judgment in the District Court.[1]  The extensive history of the matter is set out in paragraphs [2] to [15] of the judgment of Sulan J[2] which is unnecessary to repeat here.

   [1]    Westwill Pty Ltd & Ors v Norman Waterhouse Pty Ltd & Anor [2009] SASC 391 (Sulan J) on appeal from Westwill Pty Ltd v Norman Waterhouse & Ors, unreported District Court of South Australia, Judge Soulio (30 April 2008).

   [2] [2009] SASC 391.

2. The proposed appeal from the judgment of Sulan J is some four years out of time. However, it would appear that the appellant may wish to rely on putative new material facts in order to ground an application for an extension of time within which to appeal. Although, even that is not clear because in the notice of appeal under the heading “Extension of time” the appellant refers to section 48(3) of the Limitation of Actions Act 1936 and it may be that the appellant is more concerned about his purported cause of action, itself, being out of time. 

3. Pursuant to Rule 53 of the Supreme Court Rules 2006 (SA) the Registrar has referred to me the notice of appeal that Mr Jones wishes to file. Rule 6SCR 53 provides for a power to reject documents submitted for filing and the Registrar has asked whether or not I am prepared to direct Mr Jones’ proposed notice of appeal be rejected on the basis that it is, inter alia, an abuse of the processes of the Court.

4. The relevant principles have been helpfully summarised by Gray J in a recent decision of this court.[3]  I, with respect, adopt that summary of principles as sufficient for present purposes.

   [3]    Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev [2011] SASC 127 (Gray J).

   Rule 53 provides for power to reject documents submitted for filing.  The rule relevantly provides: 

   (1)     A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.

   (2)     If it appears to the Registrar that a document submitted for filing is an abuse of the    process of the Court, the Registrar must refer the matter to a Judge or Master.

   (3)     If the Judge or Master so directs, the Registrar will reject the document.

   (4)     If it appears to the Court that a document that is an abuse of the process of the         Court has been filed in the Court, the Court may direct that it be struck from the   file.

   The purpose of rule 53 is to ensure that the resources of the court are not exhausted by pointless and misconceived litigation and that in the interests of justice, defendants are not put to expense and stress in such cases.[4]  The rule has been held to apply to documents that are incoherent such that parties could not know the case being made against them.[5]  Under a Federal Court rule in comparable terms, the actual rejection of the document by the Registrar is not subject to judicial review.[6]  The direction made under rule 53(4), is an administrative act not subject to appeal.[7]

   Rule 53(1) as extracted, provides that a document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.  The terms “scandalous, frivolous or vexatious” in this context are to be given a wide meaning.[8]  If the Registrar forms the opinion that the document is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master. 

   In Eastman v Higgins,[9] Lander J considered the correct approach to be taken by the Judge or Master in respect of a rule not materially different from rule 53.  In that case, Lander J observed that the question raised in the rule itself must be addressed, that is: does the document appear, on its face, to be an abuse of the process of the Court?[10]

   I considered rule 53 in Westwill Pty Ltd & Ors v Byrt & Ors,[11] where I concluded:[12]

   Rule 53 is, in part, a reflection of the need for courts to protect their resources, while dealing with cases justly.  This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.[13]  While a court is occupied dealing with matters devoid of merit, meritorious claims are left wanting access to the courts.[14]  On the other hand, a fundamental rule of law is that all persons have access to courts.[15]  Regardless, general interests of justice and the public interest combine, to require that there be procedures for ensuring that a court can prevent the institution of frivolous or vexatious proceedings, in the sense that those proceedings cannot succeed.[16]  It is however a power which should be exercised with care.

   [4]    Staats v United States of America (1992) 66 ALJR 793; see further my [Gray J’s] treatment of this rule in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.

   [5]    Re Davison (1997) 147 ALR 259.

   [6]    Manolakis v District Registrar (SA) (2008) 170 FCR 426.

   [7]    Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89, [32]-[33].

   [8]    Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [5].

   [9]    Eastman v Higgins (2007) 210 FLR 464.

   [10]   As set out by me in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [7].

   [11]   Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.

   [12]   Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [13].

   [13]   Bhamjee v Forsdick (No 2) [2004] 1 WLR 88, 93 considered in Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [31].

   [14]   Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [32].

   [15]   See Ramsey v Skyring (1999) 164 ALR 378.

   [16]   Staats v United States of America (1992) 66 ALJR 793 where Deane J was considering a Rule in the High Court Rules comparable [in] terms to rule 53.

   The terms of the proposed notice of appeal

5. The proposed notice of appeal consists of 25 pages not including the cover sheet.  It commences with 32 paragraphs of narrative discussion of complaints concerning conduct by the defendants, the State Government, a Local Government body and other entities.  The narrative purports to set out a lengthy history of real property dealings objected to by the proposed appellant together with related conduct by various public bodies and together with discussion and criticism of various previous court decisions in which the appellant was a party.  The discussion is convoluted, lacks any clarity and is extremely difficult to follow.  Material of this nature is completely inappropriate to be included as part of a notice of appeal.

6. There follows 11 paragraphs containing purported grounds for permission to appeal.  None of the grounds appear to relate directly to the judgment of Sulan J.  There follows four paragraphs containing purported new material facts.  The notice of appeal continues with five paragraphs under the heading “Remedy” and seven paragraphs under the heading “The appellant requests the following orders”. 

7. The burden of the document, when read as a whole and to the extent that it can be understood, appears to be a re-agitation of matters finally dealt with in earlier court judgments going back, it would appear, as far as 1989.  The relief sought, insofar as it can be comprehended, is more appropriate to a proposed first instance determination rather than an appeal from Sulan J’s judgment.  The document is fairly and properly to be described as incoherent and lacking sense.  It offers no relevant detail sufficient to allow the proposed respondents to appreciate the case they would be required to meet, that is, why the judgment of Sulan J sought to be appealed from is said to be in error and should be set aside.  The proposed notice of appeal does not identify a relevant ground of appeal.  The document does not set out findings or aspects of the reasoning in either the trial judgment or the judgment of Sulan J, summarily dismissing the appeal from that trial judgment, which are said to involve error.  Nor does it identify the basis of any asserted error.  Any appeal based on a notice of appeal in the form of the present would be doomed to fail.

8. There is a further difficulty with the proposed notice of appeal.  It purports to be solely in the name of William Paul Jones as appellant.  However, the relevant parties to the judgment appealed from, comprised a number of corporate entities and a number of individual members of Mr Jones’ family including Mr Jones himself.  For this reason alone, the proposed appeal would not be properly constituted. 

9. In the circumstances, the proposed notice of appeal on its face, if filed, contains matter that is frivolous or vexatious and would be an abuse of the processes of the Court.  I direct the Registrar to reject the document.  I direct that a copy of these reasons be sent to Mr Jones.