Lindsay Hunter (& as Intellectual Property owner of Goldenkelpies) v RSPCA WA Inc
[2011] WASC 363
•23 DECEMBER 2011
LINDSAY HUNTER (& as Intellectual Property owner of Goldenkelpies) -v- RSPCA WA INC [2011] WASC 363
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 363 | |
| 23/12/2011 | |||
| Case No: | CIV:3214/2011 | 1 DECEMBER 2011 | |
| Coram: | EM HEENAN J | 1/12/11 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Leave to institute proceedings refused | ||
| B | |||
| PDF Version |
| Parties: | LINDSAY HUNTER (& as Intellectual Property owner of Goldenkelpies) LINDSAY HUNTER as TRUSTEE (for DOG WELFARE ASSOC) DOG WELFARE ASSOC Inc RSPCA WA INC RSPCA WA Directors (all appointed directors) JOANNA SCHIRRMAN (Chief Veterinarian RSPCA) KEITH GINBEY (& all General Inspectors of RSPCA) |
Catchwords: | Vexatious litigant Leave to institute proceedings Application for Judge to recuse No basis for applications Leave refused |
Legislation: | Vexatious Proceedings Restriction Act 2002 (WA) |
Case References: | Attorney General v Hunter [2002] WASC 189 Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 Hunter v RSPCA [2006] WASC 215 Hunter v RSPCA WA Inc [2008] WASC 153 Michael Wilson & Partners Limited v Nicholls [2011] HCA 48 Re The Attorney General of Western Australia The Hon Mr Jim McGinty Or His Delegates; Ex Parte Hunter [2003] WASC 149 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
LINDSAY HUNTER as TRUSTEE (for DOG WELFARE ASSOC)
Second Plaintiff
DOG WELFARE ASSOC Inc
Third Plaintiff
AND
RSPCA WA INC
First Defendant
RSPCA WA Directors (all appointed directors)
Second Defendant
JOANNA SCHIRRMAN (Chief Veterinarian RSPCA)
Third Defendant
KEITH GINBEY (& all General Inspectors of RSPCA)
Fourth Defendant
Catchwords:
Vexatious litigant - Leave to institute proceedings - Application for Judge to recuse - No basis for applications - Leave refused
Legislation:
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Leave to institute proceedings refused
Category: B
Representation:
Counsel:
First Plaintiff : In person
Second Plaintiff : In person
Third Plaintiff : In person
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
First Plaintiff : In person
Second Plaintiff : In person
Third Plaintiff : In person
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Case(s) referred to in judgment(s):
Attorney General v Hunter [2002] WASC 189
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Hunter v RSPCA [2006] WASC 215
Hunter v RSPCA WA Inc [2008] WASC 153
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48
Re The Attorney General of Western Australia The Hon Mr Jim McGinty Or His Delegates; Ex Parte Hunter [2003] WASC 149
(Page 4)
1 EM HEENAN J: The Court is sitting to hear a notice of originating motion brought by Lindsay Hunter for leave to institute proceedings pursuant to s 6 of the Vexatious Proceedings Restriction Act 2002 (WA), leave being necessary to do so because Mr Hunter has been declared to be a vexatious litigant.
2 The proposed proceedings are referred to in the affidavits which have been filed by Mr Hunter on this application. The relief sought is complicated and compendious but it is directed against the RSPCA WA Inc, the RSPCA WA directors, being all appointed directors of that association, Ms Joanna Schirrman, chief veterinarian of the RSPCA, Mr Keith Ginbey and all general inspectors of the RSPCA.
3 The application is supported by a series of affidavits sworn by Mr Hunter which are long and detailed. They are directed at activities undertaken by the RSPCA and its officers in seizing, for various alleged reasons, dogs belonging to Mr Hunter who contends that the RSPCA is acting unlawfully and is threatening to destroy the dogs. As well he makes a variety of other allegations.
4 When the application came on for hearing, Mr Hunter initially indicated that he may wish to object to me sitting on the application because of my past involvement in other litigation concerning him. As his submissions developed he advanced, respectfully, I have to say, reasons to contend that I may be biased or prejudiced or have the appearance of being biased or prejudiced to a fair-minded person, which gives rise to a necessity that I should recuse myself from sitting on this case in order that all reasonable appearances of independence should be maintained.
5 It is necessary to say a little about the history. Mr Hunter has been involved in much litigation associated with the RSPCA over the years. He was declared to be a vexatious litigant by Hasluck J in a decision, Attorney General v Hunter [2002] WASC 189. In that case Hasluck J said [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
(Page 5)
- clearly demonstrates a habitual and persistent pattern of instituting proceedings by the respondent.
6 In 2006 Mr Hunter sought leave under s 6 of the Vexatious Proceedings Restriction Act to commence proceedings against the RSPCA and that application for leave came on for hearing before Hasluck J on 15 September 2006. On 26 December 2006 Hasluck J refused those applications - Hunter v RSPCA [2006] WASC 215.
7 In July 2008, in another case concerning the RSPCA, Mr Hunter applied for a permanent stay of orders made in the Magistrates Court concerning the forfeiture of dogs under the Animal Welfare Act 2002 (WA) and he also applied to rescind or vary the orders declaring him a vexatious litigant. That matter came on for hearing before me on 10 July 2008, when I dismissed the application. In the course of doing so, I said in my reasons for judgment, which were subsequently published on 24 July 2008 - Hunter v RSPCA WA Inc [2008] WASC 153:
27 Although I say so with respect to him, Mr Hunter's affidavits and other papers show an incomplete understanding of the significance of law and the rules of court in relation to the proceedings which have been taken. On the face of the documents before me, they bear all the appearances of vexatious proceedings. I am afraid Mr Hunter does not really understand or appreciate the principles of the law which apply in these proceedings but, nevertheless, no doubt conscientiously, wishes to pursue relief to which he mistakenly believes himself to be entitled.
28 The problem is that the mistake leads him to pursue proceedings which I am satisfied are vexatious. The proposed proceedings which Mr Hunter seeks to institute and those which he has foreshadowed are, to my mind, vexatious. There is no basis upon which leave should be granted or any modification to the existing order of Hasluck J should be made. I therefore refuse the applications which have been made and dismiss the proceedings.
8 In addition, I had earlier in July 2003 dismissed an application by Mr Hunter for leave to issue writs of prohibition, mandamus and certiorari against the Attorney General and other public officers in Re The Attorney General of Western Australia The Hon Mr Jim McGinty Or His Delegates; Ex Parte Hunter [2003] WASC 149. Mr Hunter submits that because of that past involvement and other factors, which I am about to mention, I should not sit on the present application.
9 The other matters which he raised are these. He says that on a previous occasion, in the course of submissions when dealing with one of
(Page 6)
- his earlier cases, I said in the course of argument, and that it is recorded on transcript, that I had made donations to the RSPCA. I now have no recollection of saying that and I have not had the transcript produced to me, but it is perfectly possible that I might have said that and it is indeed very probable, and almost certain, that over many past years I have from time to time made small donations to the RSPCA during its public fundraising and charity campaigns. I am not a regular or major donor to that organisation and never have been but, as I say, it is distinctly possible that I have made small donations from time to time over the years. I do not consider that for that reason I am placed in a position where I cannot, or should not, hear these proceedings - Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Michael Wilson & Partners Limited v Nicholls [2011] HCA 48.
10 Mr Hunter also submits that I have in the course of submissions from him this morning pointed out to him that the honesty of the RSPCA is not an issue. I did make an observation to that effect, although perhaps not exactly in those terms. It came in the context where he was developing in great detail allegations that the RSPCA and its officers had been dishonest and fraudulent, had suppressed evidence and committed a number of other major wrongs, and that this had led to erroneous decisions being made in the past. I indicated to him, and I stand by these observations, that the Court is bound by decisions which have been made in the past, including Hasluck J's decision of 2002 declaring him to be a vexatious litigant, and that for present purposes whether or not that decision or other past decisions which he says are wrong were influenced by the alleged or other frauds is simply not to the point. Those are decisions of the Court. They were reached after formal hearings and proper reasons were given. There were avenues of appeal which have not led to the decisions being set aside. I do not consider that any observation made in relation to the honesty of the RSPCA has any significance other than to indicate that the issue for consideration today is not whether or not the RSPCA is honest but whether or not there are grounds for Mr Hunter to initiate the proceedings against the intended defendants which he proposes in relation to the latest episodes of November 2011.
11 Mr Hunter has also made submissions to the effect that I have given wrong or bad decisions in the past, meaning the two decisions which I have already mentioned, that of Re The Attorney General; Ex Parte Hunter in 2003 and Hunter v RSPCA WA Inc [2008] WASC 153 in July 2008. Again, I can say that those decisions were given after full hearings, were accompanied by written reasons, and have not been challenged or set aside on appeal.
(Page 7)
12 Mr Hunter also says that I should entertain an application made by him orally this morning, not for leave to institute proceedings under s 6 of the Vexatious Proceedings Restriction Act, but to rescind or to vary the order of Hasluck J made in 2002 declaring him to be a vexatious litigant. The papers and the motion which have been filed in these proceedings do not purport to be any such application under s 7. No ground is laid to rescind or vary Hasluck J's decision of 2002. It has been accepted and acted upon on a number of subsequent occasions, and Mr Hunter's application under s 6, which is before the Court, assumes that the order was validly made under s 6. There is, therefore, no occasion to contemplate any application under s 7.
13 Mr Hunter has submitted that on previous occasions I have conducted myself or written words in reasons for judgment to the effect that I do not believe him on oath. I am not conscious of having done so, although my reasons for judgment in the two cases which have been given and which I have mentioned do involve a rejection of the contentions advanced, whether of fact or of law, by Mr Hunter in the past.
14 I have endeavoured to explain that this is due to him having an incomplete understanding of the significance of the law and the Rules of the Supreme Court 1971 (WA) in relation to these proceedings. I stand by that view, and the submissions made by Mr Hunter this morning are vivid demonstrations of that inability to understand properly the law and procedure.
15 Mr Hunter has submitted that I show bias and prejudice by being overzealous and sympathetic to the RSPCA and that I am unduly disposed to recognise the authority of the RSPCA. He also submits that the tones of my reasons for judgment on previous occasions echoed the tone of Hasluck J in his original decision, are not favourable and show prejudice against him. He further submits that the issues which he wishes to raise in the proceedings involve a contention that the Vexatious Proceedings Restriction Act is unconstitutional and therefore illegal because it is in breach of the Animal Welfare Act and that because it is unconstitutional this gives rise to a cause under s 78B of the Judiciary Act 1903 (Cth), requiring notice to be given to the Attorneys General for the Commonwealth, the States and the Territories, and for the Court not to proceed further without giving the s 78B notices. As to that, I can say that this contention appears to be without any shred of merit whatsoever. The alleged conflict between the Vexatious Proceedings Restriction Act and the Animal Welfare Act does not give rise to any arguable constitutional
(Page 8)
- issue and there is no basis whatsoever to contemplate an order that s 78B Judiciary Act notices are required or should be given.
16 Finally, Mr Hunter has submitted that he should not be required to deal further with his objection to me sitting because he did not know until the commencement of proceedings this morning that I had been assigned to hear his case, and that had he been aware of that, he would have taken more care to examine the past record of reasons for decision and transcripts in cases in which I have been involved. He submits that, in that case, he would have been better able to present his case that I was actually prejudiced or biased or that a reasonable person might entertain a belief that I was biased or prejudiced and unable to give a fair and independent decision in his case.
17 As to all these matters I must observe that Mr Hunter has advanced these submissions with relative calm and restraint and with as much deference as he considers should be employed in raising delicate and unpalatable matters. Nevertheless, I do not consider that there is any reasonable basis upon which I should disqualify myself from hearing this application. I have been involved in prior matters involving Mr Hunter, including his unsuccessful applications to bring proceedings under the Vexatious Proceedings Restriction Act. I have given reasons which explain, I hope in modest terms, my conclusions in those matters. The first of those matters was in 2003 and the second in 2008. The present proceedings are entirely fresh and although it is clear that I take a different view of the submissions advanced by Mr Hunter in many respects, that does not mean that I am biased or prejudiced nor does it give rise to any reasonable suspicion of bias. I therefore decline his submission that I should not sit on this matter and I will deal with the application on its merits.
18 I consider that the action which is proposed in the papers filed by Mr Hunter is replete with confusion of thought and seeks to advance unsubstantiated and extreme allegations. I consider that it reveals no prospect of success in the action contemplated and that it disregards the lawful powers and obligations which the RSPCA and its officers possess under legislation. The papers, the affidavits and the submissions produced by Mr Hunter this morning all have features which were decided in the previous cases of Hunter v RSPCA [2006] WASC 215 by Hasluck J and by myself in Hunter v RSPCA in 2008 to be vexatious. I consider that there is no prima facie ground for the proceedings and that leave to commence them should be refused.
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