Krysiak v Public Transport Authority [No 3]
[2019] WASC 163
•15 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KRYSIAK -v- PUBLIC TRANSPORT AUTHORITY [No 3] [2019] WASC 163
CORAM: SMITH J
HEARD: 14 MAY 2019 ON THE PAPERS
DELIVERED : 15 MAY 2019
FILE NO/S: GDA 5 of 2016
BETWEEN: EUGENIA KRYSIAK
Appellant
AND
PUBLIC TRANSPORT AUTHORITY
Respondent
FILE NO/S: CIV 1822 of 2019
MATTER: In the matter of application for a suspension order under the Civil Judgments Enforcement Act 2004 (WA)
EX PARTE
EUGENIA KRYSIAK
Applicant
ON APPEAL FROM:
Jurisdiction : STATE ADMINISTRATIVE TRIBUNAL
Coram: SENIOR MEMBER McNAB
File Number : EOA 34 of 2015
Catchwords:
Practice and procedure - Abuse of process - Leave to file - Order 67 r 5 - Application for suspension order of means inquiry - No special circumstances
Legislation:
Bills of Exchange Act 1909 (Cth)
Civil Judgments Enforcement Act 2004 (WA), s 15(1), s 15(3), s 30(5)
Rules of the Supreme Court 1971 (WA), O 67 r 5
Result:
Application dismissed
Representation:
GDA 5 of 2016
Counsel:
| Appellant | : | In person |
| Respondent | : | No appearance |
Solicitors:
| Appellant | : | In person |
| Respondent | : | No appearance |
CIV 1822 of 2019
Counsel:
| Applicant | : | In person |
Solicitors:
| Applicant | : | In person |
Case(s) referred to in decision(s):
In Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Re Magistrate Francine Walter; Ex parte Tull [2016] WASC 271
SMITH J:
After considering the documents filed in support of the application, orders were made on the papers on 14 May 2019 dismissing the application made in GDA 5 of 2016 and in CIV 1822 of 2019. These reasons set out my reasons why those orders were made.
The applicant filed an urgent ex parte application in CIV 1822 of 2019, on 10 May 2019, to be determined on the papers, in chambers by a judge, for orders:
1.That the court issue a suspension order on the scheduled means inquiry and that it be adjourned sine die, pursuant to sections 15 and 30(5) of the Civil Judgments Enforcement Act 2004 ('the Act').
2.That this application is to be determined urgently ex parte on the papers in chambers.
3.The leave sought to file the Notice of Motion, lodged with the Registry on 17 April 2019, to please be given.
4.That the Applicant's application in their Notice of Motion be heard by a Judge of this Court.
5.If there be found any non-fatal defect in the Notice of Motion that it be allowed to be remedied and the application then determined.
6.Costs of this Application to be awarded to the Applicant.
7.Any further or consequential orders the Court considers would be in the interests of justice.
There are two parts to the application.
Firstly, the applicant seeks leave to file a notice of motion, lodged with the Registry on 17 April 2019 in GDA 5 of 2016. The proposed notice of motion; an affidavit in support, sworn by the applicant on 21 March 2019; and supplementary affidavit sworn by Tadeusz Krysiak, on 18 April 2019, were not accepted for filing. Each of the documents bear an endorsement that they were prepared by Tadeusz Krysiak. The acting Principal Registrar directed that pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA) the proposed motion and affidavits not be accepted for filing without leave of a judge having first been obtained.
The second part of the application is that the applicant applies for orders suspending the enforcement of all or part of a judgment pursuant to s 15(1) of the Civil Judgments Enforcement Act 2004 (WA) and adjournment of a means inquiry listed before the court, on 15 May 2019, pursuant to s 30(5) of the Civil Judgments Enforcement Act.
The judgment which appears to be the subject of the application for a suspension order, and the means inquiry, is an order made by Pritchard J, on 28 April 2017, that the applicant pay the Public Transport Authority the costs of the appeal in GDA 5 of 2016, fixed at $4,125.
Order 67 r 5 of the Rules of the Supreme Court provides as follows:
5.Abuse of process etc, procedure in case of
(1)If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.
(2)In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers.
(3)In all other cases, an application or commission shall be made to a judge in chambers.
(4)Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.
This rule re‑enforces the court's inherent jurisdiction to protect itself from unwarranted wastage of time and resources and to avoid the loss that would otherwise be caused to those who are forced to defend the actions which lack any substance.[1] In Re Rules of the Supreme Court 1971 (WA); Ex parte Gates, Vaughan J observed:[2]
An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed.
[1] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312 (Toohey J); Re Magistrate Francine Walter; Ex parte Tull [2016] WASC 271 [3] (Banks-Smith J).
[2] In Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 [31].
In the proposed notice of motion, the applicant seeks the following orders:
4.That the affidavit supporting the application for substituted service, dated 28 November 2018 be struck out for incompleteness and falsity.
5.That both of the PTA Form 6 and 7 applications be struck out.
6.Declaration that the PTA and/or its agents did trespass on the Applicant's private property by entering and attempting service of a summons on at least one occasion.
7.Declaration that both Bills of exchange tendered to the Respondent have discharged and/or offset the debt and were dishonoured by the Respondent, and/or the Notice of Agreement between the State Solicitor's Office ('SSO') and the Applicant, dated 2 October 2018, has been breached by the SSO and that as a result the SSO and/or the Respondent is now liable to the Applicant for at least $4,125, which offsets the debt owed by the Applicant.
8.That the means inquiry be dismissed as the Supreme Court has no jurisdiction to conduct a means injury and/or the mean inquiry applicant ('MIA') has no standing at law to initiate a means inquiry into the Applicant in this matter now.
9.That, in the alternative to the orders above, the PTA is not entitled to apply for an order under s 19(1) of the Civil Judgments Enforcement Act 2004 ('the Act'), unless r. 10 of the Civil Judgments Enforcement Regulations 2005 ('Regulations') is applied.
In the proposed notice of motion, the applicant states that the grounds of the proposed application are:
2The PTA and/or the MIA have/has no standing at law to institute a means enquiry in the Supreme Court, because:
2.1the person seeking to enforce the judgment MIA, Nicholas Andronis, is not personally a party to the case in which the judgment was given and, contrary to section 13(1)(d) of the Act and r. 7 of the Regulations, has not obtained leave of this Court to seek enforcement under the Act;
2.2the Form 7 substituted service application contains false information of which the PTA and/or its legal counsel would and/or should be aware;
2.3the affidavit supporting the substituted service application is sworn neither by an officer of the PTA nor a lawyer and contains false information making it invalid to support the Form 7 application;
2.4the Form 6 mean enquiry application was deficiently made contrary to the Act and/or the Regulations;
2.5the applicant has satisfied the judgment by discharging her obligation to pay the amount as claimed, pursuant to the Bills of Exchange Act 1909 (Cth) ('BOEA') and either the respondent or the SSO or the Sheriff may sell the financial instrument;
2.6Estoppel has applied from the time of the first discharge of obligation to pay a debt, that being the default by the PTA on Friday, 12 October 2018.
3.The Claimant's application for a means inquiry is an abuse of process of this court, which would tend to bring the court into disrepute, because:
3.1of the points raised at Ground 1 above;
3.2the PTA, a government body, and/or the MIA, having a fiduciary duty to the public, is attempting to use its/his action to achieve a collateral purpose, that being:
3.2.1attempts to unlawfully obtain a financial advantage at the expense of the Applicant, a vulnerable citizen, by claiming twice for the same amount;
3.2.2the use of the above (2.2.1) to threaten and/or intimidate the Applicant into accepting its claim as valid and absolute, causing the Applicant to incur financial cost in defending this action as well as much emotional distress.
In the applicant's affidavit, sworn on 21 March 2019, the applicant annexes, as Annexure EK5, a copy of a Form 6 application or request to a court prescribed as a form under the Civil Judgments Enforcement Act (filed by the respondent on 16 October 2018) for a means inquiry of a judgment debtor to:
(a)attend and give verbal evidence; and
(b)attend and produce to the court for use in the inquiry, the judgment debtor's most recent payslips (if employed), bank statements for accounts held in the name of the judgment debtor either solely or jointly, and the judgment debtor's income tax returns for the last two financial years.
The Form 6 application clearly itemises the amount owed ($4,125) and enforcement costs ($162), totalling $4,287, and records the applicant as the State Solicitor's Office (not Mr Nicholas Andronis).
Also annexed to the applicant's affidavit, as Annexure EK3, is a Form 7 application prescribed as a form under the Civil Judgments Enforcement Act. The Form 7 was filed (by the applicant in GDA 5 of 2016) on 27 November 2018, and sought an order for service on the applicant of a means inquiry summons by ordinary post and that service of the application be dispensed with.
Also annexed to the affidavit of the applicant, as Annexure EK4, is a copy of an affidavit in support of the orders sought for substituted service, sworn by Nicholas Andronis on 28 November 2018. In Mr Andronis' affidavit he states that he is a senior managing law clerk employed in the State Solicitor's Office who acts on behalf of the Public Transport Authority in the proceedings in GDA 5 of 2016. In his affidavit, Mr Andronis attests that:[3]
(a)on 11 September 2018, a letter was posted to the applicant at her residential address requesting payment of the judgment sum, being the costs of the appeal of $4,125, be made to the State Solicitor's Office within 21 days;
(b)no payment had been received from the applicant and that, on 16 October 2018, a Form 6 application was filed in the court for a means inquiry to summons the applicant to court;
(c)the deputy sheriff had attempted service of the means inquiry summons at the applicant's address but was unable to serve the applicant; and
(d)the respondent believed the applicant was avoiding service of the means inquiry summons and sought leave of the court to obtain an order for personal service of the means inquiry summons be dispensed with and service be effected by posting the means inquiry summons by ordinary prepaid post to the applicant's residential address.
[3] Affidavit of Eugenia Krysiak, sworn 21 March 2019, Annexure EK4 page 15.
Annexed to Mr Andronis' affidavit, as Annexure NA1, is a copy of the deputy sheriff's report dated 6 November 2018. In the report, the deputy sheriff states that:
(a)he visited the applicant's residence on 26 October 2018, and on approaching the door he noticed a no trespass notice attached;
(b)he formed the belief that he was not entitled to knock on the door and left a card in the letterbox asking the applicant to contact him and then left the property;
(c)on Thursday, 1 November 2018, after receiving no reply (to the card he left in the letterbox) he again left a card in the letterbox but received no response.
On 24 December 2018, Registrar Whitbread made an order that:
(a)the Public Transport Authority have leave to serve the Form 11 means inquiry summons, together with a copy of the order (made by Registrar Whitbread) by way of substituted service on the applicant, by posting a sealed copy of the same to the applicant at her address; and
(b)personal service of the Form 11 means inquiry summons be dispensed with.
Having read the affidavit of the applicant and the affidavit of Tadeusz Krysiak, and each of the annexures to the affidavits, I am not satisfied that there is anything in the affidavit of Mr Andronis, and the Form 6 and 7 applications, that could be described as incomplete, false or in any manner irregular. Consequently, I am of the opinion that insofar as the proposed notice of motion seeks to deal with these issues it is groundless and constitutes an abuse of process.
Insofar as the applicant seeks to claim that the judgment debt has been satisfied by her pursuant to the Bills of Exchange Act 1909 (Cth) by the tender of what is said to be bills of exchange, it is clear, having examined the documents which are claimed to be bills of exchange, that these documents are meaningless and cannot be said to constitute a contractual obligation of any form or create any right to payment to the applicant of any sum whatsoever.
The documents said to create bills of exchange are annexed to the affidavit sworn by the applicant on 21 March 2019, and comprise a bundle of documents as Annexures EK6, EK7, EK8 and EK9.
Annexure EK6 is the letter from Mr Andronis from the State Solicitor's Office, dated 11 September 2018, referred to in Mr Andronis' affidavit. The letter is a demand for payment of the sum of costs in the amount of $4,125 to the State Solicitor's Office within 21 days, and giving notice that if the payment is not made then proceedings will be taken for the recovery of the amount due. The copy of letter annexed to the affidavit as EK6 has handwritten notations which are meaningless in their terms. The handwritten notations include a heading 'Bill of Exchange' and some numbers which include an amendment of the amount of $4,125 to one Australian dollar. The remainder of the documents annexed to the affidavit in Annexure EK6 are:
(a)a copy of the order made by Pritchard J, on 28 April 2017, that was extracted by the court on 28 August 2018. The copy bears some handwritten notes which appear to be intended to create an 'endorsement'. Attached to a copy of the order is a separate document which appears to create a 'receipt' for payment of a sum of one Australian dollar and what appears to be a copy of a $1 stamp;
(b)an additional copy of the letter of Mr Andronis, sent to the applicant and dated 11 September 2018, with additional meaningless handwritten notations; and
(c)a typewritten document titled 'Default and liability clause and notice' for an amount of $16,500 which is now said to be owing by the Department of the Attorney General, State Solicitor's Office. It is not clear from the document why the amount of $16,500 is said to be owing to the applicant by the State Solicitor's Office. That document and some of the other documents forming the bundle of Annexure EK6 have attached to them what appear to be five cent stamps.
Annexure EK7, in the applicant's affidavit, comprises among other unrelated documents:
(a)a letter for the attention of Mr Andronis from the applicant to the CFO of the Department of the Attorney General. The letter appears to be a notice of default in relation to a bill of exchange for $1;
(b)what is said to be a copy of what is said to be a typewritten 'Certificate of Noting' which appears to be signed by the applicant, the terms of which are meaningless;
(c)an additional copy of the letter from Mr Andronis, dated 11 September 2018, which contains additional handwritten notations, one of which is headed 'Bill of Exchange'; and
(d)an additional copy of a document which is said to be a bill of exchange for $1.
Annexure EK8 of the applicant's affidavit comprises a typewritten document which appears to be signed by the applicant, headed 'Promissory note, dishonour, destruction, mutilation, loss or surrender to maker discharges liability herein'. It purports to be a note for the sum of $4,287 that purports to be capable of being redeemed by the Public Transport Authority on demand at an address in Oxford Street, in Mount Hawthorn on 8 March 2019, between 14:00 and 14:30 hours. This document is also a document which does not appear to be a document capable of being characterised as legal tender.
Annexure EK9, is what purports to be a notice of default of the promissory note which was said to be tendered to the Public Transport Authority on 1 March 2019.
When all these documents are considered, it is clear that each one of them is meaningless. It is also clear that the court should not be burdened by an unwarranted waste of its time and resources to allow these documents to be filed in GDA 5 of 2016. The documents do not identify arguable grounds for, or evidence of, a defence to the means inquiry. In these circumstances, leave should not be granted to file the proposed notice of motion or the affidavits lodged with the Registry on 17 April 2019.
Section 15(1) of the Civil Judgments Enforcement Act provides that a person, against whom a judgment is given, may apply for an order suspending the enforcement of all or part of the judgment. Pursuant to s 15(3), the court may only make a suspension order if there special circumstances that justify doing so.
I am of the opinion that no order should be made suspending the means inquiry as it is patently clear that there are no special circumstances that would justify the court in doing so.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Research Associate/Orderly to the Honourable Justice Smith15 MAY 2019
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