Marshall v The Honourable Alannah Mactiernan MLA Minister for Planning and Infrastructure

[2009] WASC 321

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MARSHALL -v- THE HONOURABLE ALANNAH MACTIERNAN MLA MINISTER FOR PLANNING AND INFRASTRUCTURE [2009] WASC 321

CORAM:   HALL J

HEARD:   2 NOVEMBER 2009

DELIVERED          :   6 NOVEMBER 2009

FILE NO/S:   CIV 2358 of 2004

BETWEEN:   INGRID MARSHALL

RAYMOND MARSHALL
Plaintiffs

AND

THE HONOURABLE ALANNAH MACTIERNAN MLA MINISTER FOR PLANNING AND INFRASTRUCTURE
Defendant

Catchwords:

Practice and procedure - Abuse of process - Leave to file - Rules of the Supreme Court 1971 (WA), O 67 r 5

Legislation:

Rules of the Supreme Court 1971 (WA), O 67 r 5

Result:

Leave refused

Category:    B

Representation:

Counsel:

Plaintiffs:     In person

Defendant:     No appearance

Solicitors:

Plaintiffs:     In person

Defendant:     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303

Marshall v The Honourable Alannah Mactiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274

Marshall v The Honourable Alannah Mactiernan MLA Minister for Planning and Infrastructure [2003] WASCA 67

Marshall v The Honourable Graham Kierath MLA, Minister for Planning [2001] WASCA 70

Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146

Marshall v The Town Planning Appeal Tribunal of Western Australia [No 3] [2008] WASCA 27

Re Skyring (1994) 68 ALJR 618

Walton v Gardiner (1993) 177 CLR 378

1. HALL J: Mr and Mrs Marshall have engaged in extensive litigation over a nine year period in regard to their unsuccessful attempts to subdivide or develop a piece of land in Kensington. On 10 August 2009 they sought to file a notice of originating motion to set aside or vary the judgment in CIV 2358 of 2004. A registrar refused to file the notice without leave of a judge pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA). The plaintiffs have now sought leave to file the notice of motion.

2. Order 67 r 5 provides that:

   (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 paragraphs (2) and (3) shall be made ex parte and shall be supported by affidavit.

3. That rule reinforces the inherent power of the court to protect itself from unwarranted wastage of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance:  Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312. Proceedings will constitute an abuse of process if they are clearly foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378, 393. It is also an abuse of process to allow a person to relitigate a matter which has already been decided adversely to him: Re Skyring (1994) 68 ALJR 618, 619 (Dawson J).

4. Notwithstanding that the title of the notice of originating motion refers only to CIV 2358 of 2004, the notice itself seeks that decisions in five other nominated proceedings be set aside or varied in addition to CIV 2358 of 2004.  They include decisions dating back to July 2000.  The grounds contained in the notice are broadly stated, but at the hearing of this matter Mr and Mrs Marshall confirmed that their argument was essentially that the court had never conclusively determined the validity of the City of South Perth Town Planning Scheme No 5 (TPS5) and that subsequent decisions had been tainted by an assumption that the validity of that scheme had been determined. 

5. Mr and Mrs Marshall made lengthy oral submissions in support of their application for leave to file the notice of motion.  They also filed an affidavit in support of their application which annexed a copy of the notice, an outline of submissions in respect of the notice, and a large number of documents relating to past proceedings.

6. In Marshall v The Town Planning Appeal Tribunal of Western Australia [2006] WASCA 146, McLure JA noted that Mr and Mrs Marshall were contending that TPS5 and its successor TPS6 were ultra vires and invalid. Her Honour (with whom Malcolm CJ and Murray AJA agreed) held that the issue of the validity of TPS5 had already been considered and determined against the appellants in Marshall v The Honourable Graham Kierath MLA, Minister for Planning [2001] WASCA 70 and on appeal in Marshall v The Honourable Alannah Mactiernan MLA Minister for Planning and Infrastructure [2002] WASCA 274 and Marshall v The Honourable Alannah Mactiernan MLA Minister for Planning and Infrastructure [2003] WASCA 67. Her Honour went on to state that the doctrines of issue estoppel and res judicata prevented the appellants from reissuing a challenge to the validity of TPS5. I also note that similar issues were raised in Marshall v The Town Planning Appeal Tribunal of Western Australia [No 3] [2008] WASCA 27.

7. Having considered the submissions and the materials submitted by Mr and Mrs Marshall it is clear that the issue that they are seeking to agitate by the notice of motion has been previously heard and determined by the court.  Furthermore, previous attempts to reopen the issue of the validity of TPS5 have failed.  This is merely another such attempt.

8. There is no merit in proceedings which seek to reargue matters that have been conclusively determined by the court.  Such proceedings constitute an abuse of the process of the court.  Accordingly, I refuse leave to file the notice of motion of 10 August 2009.