Legal Aid Western Australia v Wheaton
[2006] WASC 219
•11 SEPTEMBER 2006
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LEGAL AID WESTERN AUSTRALIA -v- WHEATON [2006] WASC 219
CORAM: HASLUCK J
HEARD: 11 SEPTEMBER 2006
DELIVERED : 11 SEPTEMBER 2006
FILE NO/S: CIV 2121 of 2005
BETWEEN: LEGAL AID WESTERN AUSTRALIA
Plaintiff
AND
ERIC DAVID WHEATON
Defendant
Catchwords:
Vexatious Proceedings Restriction Act 2002 (WA) - Numerous private prosecutions initiated against members of Legal Aid Commission staff - Plaintiff asserted consequent disruption and interference of its activities and an abuse of process - Leave to seek relief granted - Consent orders made with no order as to costs - Turns on own facts
Legislation:
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Order made by consent
Category: B
Representation:
Counsel:
Plaintiff: Mr C P Shanahan
Defendant: In person
Solicitors:
Plaintiff: Legal Aid WA
Defendant: In person
Case(s) referred to in judgment(s):
Wheaton v Wheaton [2004] FCAA 149
Case(s) also cited:
Nil
HASLUCK J:
Introduction
This is an application brought by the Legal Aid Commission of Western Australia for certain orders pursuant to the Vexatious Proceedings Restriction Act 2002 (WA). The proceedings were commenced on 15 September 2005 by a notice of originating motion directed to the defendant, Eric David Wheaton.
As the matter progressed towards a hearing, Master Sanderson made an order that the plaintiff's minute of amended notice of originating motion dated 19 October 2005 stand as the application in these proceedings. Having regard to the way in which the matter has developed, there is no need for me to dwell upon any of the other programming orders that were made. In essence, the 19 October 2005 minute sets out the orders sought and thus becomes the operative point of reference in determining the orders to be made.
The 19 October minute
The 19 October minute sets out the grounds for the application with the grounds in question being supported by various particulars.
The allegation in ground 1 is that Mr Wheaton has instituted and conducted vexatious proceedings within the meaning of the Act against an employee of the Legal Aid Commission of Western Australia, Lee Allan Mather, who acted as child representative for the child of the marriage between Mr Wheaton and his ex‑wife in proceedings under the Family Law Act 1975 (Cth) to make arrangements for the child of the marriage, that being the case of Wheaton v Wheaton [2004] FCAA 149.
The ground 1 allegation is supported by various particulars running through par 1A to par 1E with reference being made to certain documents instituting proceedings (including a number of private prosecutions against Lee Allan Mather). In the way that matters have developed there is no need for me to dwell upon the full particularity of the proceedings in question.
Ground 2 of the 19 October minute contains an allegation that Mr Wheaton has instituted and conducted vexatious proceedings within the meaning of the Act against other persons involved in the Family Court proceedings. That allegation is supported by particulars at page 4 of the minute, running through par 2A to par 2F, which, generally described, refer to various proceedings (including private prosecutions) instituted by Mr Wheaton in the Court of Petty Sessions in the course of 2004 against his ex‑wife, her lawyer, a social worker and a court expert, being persons involved in the Family Court proceedings.
It is against this background that the affidavits filed by the parties must be considered.
Evidentiary materials
On the plaintiff's side reliance was placed upon various affidavits forming part of the evidence before me, being the affidavit of Lee Allan Mather, sworn 9 August 2005 (Exhibit 19), the affidavit of Michael Stefan Hovane, sworn 23 August 2005, (Exhibit 20), and the further affidavit of Lee Allan Mather, sworn 17 October 2005 (Exhibit 21).
I had before me also the affidavit of George Turnbull, sworn 25 August 2005 (Exhibit 1) although I note that that affidavit was admitted for the limited purpose of addressing the application for leave to seek the orders in question, being a matter that I will come to in a moment.
As I briefly review the evidentiary materials on the plaintiff's side, I note also that in the course of the hearing the plaintiff placed reliance upon Exhibits 2 to 18 comprising the various complaints and originating documents, the subject of the particulars I mentioned a moment ago. For present purposes I see no need to dwell upon the particularity of those documents but certainly they evidence that there was something in the order of 17 proceedings initiated by the defendant. Mr Wheaton has had an opportunity to look at the documentation in question and confirms that the proceedings complained of were indeed issued by him. He relied upon written submissions dated 8 April 2006 and answering affidavits by himself sworn 1 November and 13 December 2005 and a further or third affidavit sworn 25 August 2006.
The orders sought
The orders sought in the minute of 19 October, as the matter stood at the commencement of the hearing, were, in summary, in these terms; first, that no proceedings shall be instituted by Mr Wheaton himself or by his agent against or in relation to the Legal Aid Commission of Western Australia, the Commission's employees, or any party, counsel, solicitor, or witness in Wheaton v Wheaton (supra) with the exception of any proceedings brought under the Family Law Act 1975 by Mr Wheaton enjoining his ex‑wife in relation to their marriage without the leave of the Court.
Second, par 2, as it stood originally, was couched in similarly broad terms with a view to obtaining an order that all proceedings against or concerning the parties just mentioned be stayed and may not be continued without the leave of the Court.
It is important to understand that in a sense the case being advanced by the Legal Aid Commission as plaintiff was that it had an interest in this matter because the consequence of the commencement of the various proceedings I have referred to involved the plaintiff in some disruption of its activities; that is, certain of its employees associated with the Family Court proceedings I have described became the subject of the proceedings complained of and this was said to be an inference with the Commission's activities and an abuse of process. These matters were said to justify the plaintiff's application for leave to proceed and the relief sought.
Accordingly, I must pause here to deal with the relevant statutory provisions and with the question of leave to proceed, for it is apparent that leave must be obtained by a party such as the Legal Aid Commission of Western Australia in the circumstances I have described.
Statutory provisions
I must begin by noting that the Vexatious Proceedings Restriction Act1930 (WA) was repealed and replaced by the Vexatious Proceedings Restriction Act 2002 (WA). It is that latter act which I will henceforth refer to as "the Act".
Section 4 of the Act provides that if the Court is satisfied that a person has instituted or conducted vexatious proceedings, whether before or after the commencement of the Act, or it is likely that the person will institute or conduct vexatious proceedings, the Court may make either or both of the following orders: firstly, an order staying any proceedings, either as to the whole or part of the proceedings that have been instituted by that person; secondly, an order prohibiting that person from instituting proceedings or proceedings of a particular class without the leave of the Court or tribunal, as the case requires.
Importantly for my immediate purposes, s 4(2) of the Act goes on to say, as I summarise it, that an order of the kind just mentioned may be made by the Court on its own motion or on the application of; (a) the Attorney‑General; (b) the Principal Registrar of the Supreme Court; (c) with the leave of the court, a person against whom another person has instituted or conducted vexatious proceedings or a person who has a sufficient interest in the matter.
I note in passing that the term "vexatious proceedings" is defined by s 3 of the Act to mean proceedings which are an abuse of the process of the Court or of a tribunal; instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose; instituted or pursued without reasonable ground; or conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
Leave of the Court
It emerges from this review of the relevant provisions that, in the circumstances of the present case, it is necessary for an applicant such as the Legal Aid Commission of Western Australia to obtain the leave of this Court to seek relief. It must satisfy the Court that it is a person who has a sufficient interest in the matter.
I pause here to observe that the matter was brought before me on 11 August 2006 to deal with various pre‑trial or preliminary issues. One of the issues that arose on that date was the question of whether leave should be granted to the applicant pursuant to s 4(2)(c)(ii) of the Act.
Having regard to the circumstances of the case, I considered the appropriate course was to adjourn the question of leave to the hearing itself. It was in my mind that the acts complained of and evidentiary materials might bear upon the question of whether leave should be granted. The matter has now been part heard and evidence has come before me. I have had an opportunity to consider the evidentiary materials.
I am of the view that leave should be granted to the plaintiff to proceed pursuant to s 4.2(c)(ii) of the Act. Counsel for the plaintiff accepted that, to the best of his knowledge, there are no previously decided cases at this early stage in the life of the Act in question as to what constitutes a sufficient interest in the matter. However, persuasively, he pointed to the fact that the preceding subparagraph allows for leave to bring such proceedings in the case of a person against whom another person has instituted or conducted proceedings. This points to a conclusion that if there is some body, entity or person who has been the subject of vexatious proceedings, that would give them an interest and a standing to bring the matter before the Court.
It follows, in my view, in the circumstances of the present case, that the Legal Aid Commission does have a sufficient interest in this matter to obtain leave. It emerges from the particulars relied upon by the plaintiff, which are substantiated by the evidentiary materials I have described, that various proceedings have been commenced by the defendant which have had the effect of bearing upon and disrupting the activities of the Legal Aid Commission.
Accordingly, as to this threshold question of whether leave to seek orders under the Act should be allowed, I do consider that the Legal Aid Commission, as the plaintiff, does have standing and a sufficient interest in the matter to justify an order that leave be granted.
Additional issues
Let me now return briefly to some other issues as I endeavour to summarise the procedural background and describe how the matter stands.
At the hearing before me on 11 August 2006, various preliminary matters were addressed including objections by the plaintiff to certain parts of the affidavit evidence sought to be relied upon by the defendant. It is apparent from the transcript of that hearing that I described in some detail the evidentiary rules bearing upon the admissibility of affidavit evidence. I referred to the need for affidavit evidence to be relevant, not to be argumentative, and to comply with the rule against hearsay.
Against the background of that discussion I proceeded to make certain rulings which had the effect of excluding various passages from the second affidavit of Mr Wheaton, being that sworn 13 December 2005. There is no need for me to traverse the detail in that regard because it is fully reflected in the transcript of 11 August 2006. I will simply adopt the reasons given on that occasion in the reasons given at this the final hearing.
On 11 August 2006 I also made various programming orders which allowed for the parties to file further affidavits and place submissions before the Court. The consequence was that further submissions were received from the plaintiff. It was apparent from those submissions that no further affidavit evidence was to be delivered or relied upon by the plaintiff.
The defendant, Mr Wheaton, had filed his further or third affidavit sworn 25 August 2006 by the time the plaintiff's further submissions were received. It became apparent from the plaintiff's submissions that there were certain objections to that affidavit. It was clear that some further evidentiary issues would have to be resolved at the commencement of the final hearing before me on 11 September 2006.
I must note also that shortly before this the final hearing commenced on 11 September 2006, a letter from Mr Wheaton came to my attention dated 5 September 2006, being a copy of a letter written to Mr Turnbull, the senior officer at the Legal Aid Commission. Mr Wheaton's letter was to this effect:
"In relation to above Supreme Court matter, please be advised I am prepared to consent to your application on condition that I am not prevented from making complaint to police. You should not accept this as admission on my part, however after careful consideration I believe greater purpose will be served by consenting to your application. I also advise my intention is to attend the hearing on 11 September 2006."
The final hearing on 11 September 2006
At the commencement of the final hearing, I entered into some discussion with Mr Wheaton about his letter and the consequences of consenting to orders of the kind sought, bearing in mind that he was not represented by counsel. The orders under discussion at that time were the orders I described a moment ago. At that stage they were cast in a broad form, as I have indicated, but nonetheless they still allowed to him an opportunity to make complaints to the police if untoward matters occurred or to bring proceedings under the Family Law Act. In other words, it seemed that there was some latitude or room for manoeuvre allowed to the defendant even if orders were made in their original form. The plaintiff's principal objective was to prevent conduct or proceedings that might interfere with its provision of legal services.
However, it became clear to me as our discussion proceeded that Mr Wheaton was not altogether satisfied that the orders and the way in which they were couched were appropriate. He expressed his reservations and even went so far as to say that it might be thought he was affected by an atmosphere of duress if he were compelled to consent to orders in that form.
I immediately assured him that there was no question of compelling him or requiring to him to consent to anything. It would be quite contrary to the traditions and normal principles by which the Court proceeds for orders to be made in such an atmosphere. He was entirely at liberty to proceed, and to have his case dealt with upon the basis of the evidence before the Court, although it was pointed out to him that, if orders were made by consent, this might well have the consequence of relieving the unsuccessful party of the burden of legal costs which usually follows upon a ruling in regard to a matter of this kind.
It was against this background that the hearing proceeded. I received the evidentiary materials I described a moment ago and made some further rulings concerning the evidence which had the effect of excluding from Mr Wheaton's third affidavit sworn 25 August 2006 certain passages which would otherwise have been relied upon by him. In doing so, I applied the rules of evidence that I had summarised for his benefit at the earlier hearing on 11 August 2006. Put shortly, it followed from the application of those rules that certain passages had to be excluded upon the basis that they did not comply with the rule against hearsay or were argumentative or insufficiently relevant.
The parties then set about the task of presenting their respective cases to the Court. Having obtained leave to proceed, counsel for the plaintiff, Mr Shanahan, opened his case and sought to rely upon the evidence I have described. It then emerged, over the luncheon adjournment, that Mr Shanahan as counsel for the Legal Aid Commission had received certain instructions which had the effect of reducing the ambit of the orders sought against Mr Wheaton.
The amended minute
The immediate consequence of the events I have just described was that Mr Wheaton was allowed a short adjournment to look at the matter afresh and to decide whether he was prepared to consent to orders made in the reduced form.
The orders sought by the plaintiff, as amended, were set out for me by Mr Shanahan as counsel for the Legal Aid Commission in these terms:
"(1)No proceedings shall be instituted by Mr Wheaton himself or by his agent, against, or in relation to, the Legal Aid Commission of Western Australia, the Commission's employees, Lee Allan Mather, Barbara Binks or Stephen Cohen with the exception of any proceedings brought under the Family Law Act 1975 (Cth) by Mr Wheaton enjoining his ex-wife in relation to their marriage without the leave of the Court.
(2)All proceedings against or in relation to, the Legal Aid Commission of Western Australia, the Commission's employees, Lee Allan Mather, Barbara Binks or Stephen Cohen with the exception of any proceedings brought under the Family Law Act 1975 (Cth) by Mr Wheaton enjoining his ex-wife in relation to their marriage, instituted by Mr Wheaton or his agents are stayed and may not be continued without the leave of the Court."
I pause here to say that there is no need for me to dwell upon par 3 of the minute in question in which the plaintiff sought the costs of the proceedings because it was explained to me and to Mr Wheaton that if orders were made in terms of par 1 and par 2 by consent, then Order 3 would fall away. The plaintiff would not seek costs.
It was clear from the nature of the argument before me, and the various affidavits and other evidentiary materials that as matters had developed there were two significant features of the controversy before me.
Firstly, Mr Wheaton was obviously desirous of contesting certain allegations of fact which underlay the allegations made against him in the original particulars of complaint being those that I referred to initially which were reflected in the various affidavits relied upon by the plaintiff. However, it is important to understand that much of that controversy, as foreshadowed to me, was related essentially to the prospect that orders might be made in the broad form originally sought.
It was immediately obvious, once the orders were sought in the reduced or more limited form, that a considerable amount of controversy was bound to fall away. There was no longer any need to resolve certain factual issues because orders in the broad form were no longer sought.
The second matter which became evident was this. It was an uncontested fact, because Mr Wheaton in my presence had worked through the various Court documents and confirmed that his signature was upon them, that various proceedings had been commenced as alleged. As I have indicated, there was evidence before me, which I found to be substantiated, that the proceedings commenced by Mr Wheaton had a disruptive effect upon the Legal Aid Commission and were designed to serve an extraneous purpose. Thus, the plaintiff had a sufficient interest in the matter, as I found a moment ago, and was entitled to obtain leave.
It was against this background that, after the luncheon adjournment, and having been allowed a short adjournment to confer with a friend, Mr Wheaton was prepared to consent to the orders sought in the amended form. He did so as a matter of voluntary consent after careful consideration, and recognising that there were certain advantages as to costs and otherwise in following that course. He agreed to orders being made in the limited form.
The statutory provisions and the criteria that I have described whereby someone might be the subject of orders under the Vexatious Proceedings Restriction Act is a power that must be exercised carefully. Prima facie, any citizen should be entitled to bring proceedings, if he has a legitimate grievance. The statutory provisions represent an exception to that rule. Nonetheless, as I have indicated, the controversy had now been reduced in scope and this provided a basis for orders being made in the more limited form. Mr Wheaton clearly recognised the reality of the situation and was prepared to consent to orders being made in the limited form. It must be kept squarely in mind that, in any event, there is still the facility of approaching the Court for leave to commence proceedings, should some particular aspect of the matter come to light which might justify commencement of proceedings against those protected by the restraining order.
Having regard to the statutory provisions and the criteria set out in the Act, and the evidence before me, I am satisfied that findings can be made which justify the making of orders in the more limited form I have described. I am reinforced in this view by the fact that there is a consent to the orders in the limited form. Accordingly, in fulfilment of my attempt to provide a full summary of what has taken place, let me now say that I make orders in terms of par 1 and par 2 of the minute dated 19 October 2005 as amended, such amendments having previously been initialled by me upon the Court document and dated 11 September 2006. There will be no order as to costs.
The operative orders which are now binding upon Mr Wheaton are as follows:
(1)No proceedings shall be instituted by Mr Wheaton, himself or by his agent, against, or in relation to, the Legal Aid Commission of Western Australia, the Commission's employees, Lee Allan Mather, Barbara Binks or Stephen Cohen with the exception of any proceedings brought under the Family Law Act 1975 (Cth) by Mr Wheaton enjoining his ex‑wife in relation to their marriage without the leave of the Court.
(2)All proceedings against or in relation to the Legal Aid Commission of Western Australia, the Commission's employees, Lee Allan Mather, Barbara Binks or Stephen Cohen with the exception of any proceedings brought under the Family Law Act 1975 (Cth) by Mr Wheaton enjoining his ex-wife in relation to their marriage instituted by Mr Wheaton or his agents are stayed and may not be continued without the leave of the Court.
(3)No order as to costs.
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