McCardle v McCardle
[2017] WADC 27
•3 MARCH 2017
McCARDLE -v- McCARDLE [2017] WADC 27
| DISTRICT COURT OF WESTERN AUSTRALIA | Citation No: | [2017] WADC 27 | |
| Case No: | APP:81/2015 | 6 JANUARY 2017 | |
| Coram: | GETHING DCJ | 3/03/17 | |
| PERTH | |||
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed Orders made under the Vexatious Proceedings Restriction Act 2002 (WA) | ||
| PDF Version |
| Parties: | ROXANNE MARIE McCARDLE MICHAEL THOMAS McCARDLE |
Catchwords: | Appeal from Magistrates Court Denial of procedural fairness Whether a denial of procedural fairness should result in the decision being set aside Whether appellant should be declared a vexatious litigant |
Legislation: | Magistrates Court (Civil Proceedings) Act 2004 s 17 Vexatious Proceedings Restriction Act 2002 (WA) s 4 |
Case References: | Agapis v Birmingham DCJ [2013] WASC 329 Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 Armstrong v Saxby [2016] WADC 87 Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Bennett v Carruthers [2010] WASCA 131 Brocklehurst v Wolinski [2015] WADC 36 Butler v Bennett [2007] WADC 107 Buttarelli v Perpetual Ltd [2013] WASCA 254 Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571 Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713 Dincer v Giancristofaro [2015] WADC 49 Duckworth v Water Corporation [2012] WASC 30 Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 Faulkner v Bluett [1981] FCA 3; (1981) 52 FLR 115 Fletcher v Westpac [2012] WASCA 154 Frigger v Lean [2015] WASC 125 Glew v White [2012] WASCA 138 House v R [1936] HCA 40; (1936) 55 CLR 499 Jones v Darkan Hotel [2014] WASCA 133 L v L [2003] FMCAfam 549 Laurent v Fates [2015] WASCA 226 Lourey v Legal Profession Complaints Committee [2012] WASCA 112 Manonai v Burns [2011] WASCA 165 McCardle v McCardle [2013] WADC 182 McCardle v McCardle [2014] HCASL 213 McCardle v McCardle [2014] WASCA 129 Michael Mischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146 Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513 Pelechowski v NSW Land and Housing Commission [2000] FCA 233 Rana v The University of South Australia [2008] FCA 1903 Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248 Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104 Rowe v Stoltze [2013] WASCA 92 Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 Shilkin v Taylor [2011] WASCA 255 Simonsen v Legge [2010] WASCA 238 Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141 Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S) Tey v Michael Mischin MLC, Attorney General for Western Australia [No 2] [2015] WASCA 243 Woolworths Ltd v Commissioner of Police [2013] WASC 413 |
JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MICHAEL THOMAS McCARDLE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE HAMILTON
File No : BS 930 of 2012
Catchwords:
Appeal from Magistrates Court - Denial of procedural fairness - Whether a denial of procedural fairness should result in the decision being set aside - Whether appellant should be declared a vexatious litigant
Legislation:
Magistrates Court (Civil Proceedings) Act 2004 s 17
Vexatious Proceedings Restriction Act 2002 (WA) s 4
Result:
Appeal dismissed
Orders made under the Vexatious Proceedings Restriction Act 2002 (WA)
Representation:
Counsel:
Appellant : In person
Respondent : Mr T Grant
Solicitors:
Appellant : Not applicable
Respondent : Delta Legal
Case(s) referred to in judgment(s):
Agapis v Birmingham DCJ [2013] WASC 329
Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172
Armstrong v Saxby [2016] WADC 87
Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321
Bennett v Carruthers [2010] WASCA 131
Brocklehurst v Wolinski [2015] WADC 36
Butler v Bennett [2007] WADC 107
Buttarelli v Perpetual Ltd [2013] WASCA 254
Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571
Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713
Dincer v Giancristofaro [2015] WADC 49
Duckworth v Water Corporation [2012] WASC 30
Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326
Faulkner v Bluett [1981] FCA 3; (1981) 52 FLR 115
Fletcher v Westpac [2012] WASCA 154
Frigger v Lean [2015] WASC 125
Glew v White [2012] WASCA 138
House v R [1936] HCA 40; (1936) 55 CLR 499
Jones v Darkan Hotel [2014] WASCA 133
L v L [2003] FMCAfam 549
Laurent v Fates [2015] WASCA 226
Lourey v Legal Profession Complaints Committee [2012] WASCA 112
Manonai v Burns [2011] WASCA 165
McCardle v McCardle [2013] WADC 182
McCardle v McCardle [2014] HCASL 213
McCardle v McCardle [2014] WASCA 129
Michael Mischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146
Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273
Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513
Pelechowski v NSW Land and Housing Commission [2000] FCA 233
Rana v The University of South Australia [2008] FCA 1903
Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248
Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104
Rowe v Stoltze [2013] WASCA 92
Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4
Shilkin v Taylor [2011] WASCA 255
Simonsen v Legge [2010] WASCA 238
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S)
Tey v Michael Mischin MLC, Attorney General for Western Australia [No 2] [2015] WASCA 243
Woolworths Ltd v Commissioner of Police [2013] WASC 413
- GETHING DCJ:
Overview
1 By notice of appeal filed 5 November 2015 (Appeal Notice), the appellant commenced an appeal from a decision of her Honour Magistrate Hamilton made on 24 September 2015 (September 2015 Decision). Her Honour struck out as an abuse of process an application by the appellant pursuant to Magistrates Court (Civil Proceedings) Act 2004 (WA) (MCCPA) s 17(3) to set aside a decision of his Honour Magistrate Fisher made on 20 March 2013 (March 2013 Decision).
2 The March 2013 Decision related to an application by the appellant for a violence restraining order under the Restraining Orders Act 1997 (WA) (ROA). The appellant had obtained an interim ex parte violence restraining order against the respondent (Interim VRO). The respondent challenged the interim VRO, and the application was proceeding towards a trial. Prior to trial, the respondent sought to have the application struck out pursuant to MCCPA s 17(2). At the hearing of this application, Magistrate Fisher permanently stayed the application, being the March 2013 Decision. His Honour's decision was based on res judicata and abuse of process, each arising from the dismissal of an application for an injunction relating to the same conduct as founded the Interim VRO in parallel proceedings under the Family Law Act 1975 (Cth) (FLA) brought by the appellant in the Federal Magistrates Court.
3 The appellant sought to appeal the March 2013 Decision to the District Court, Court of Appeal and High Court, but in each case was not successful.
4 In August 2015 the appellant again sought to challenge the March 2013 Decision, resulting in the September 2015 Decision, the subject of this appeal.
5 In order to place the appeal in context, it is necessary to first review each of the decisions to which I have referred.
Application for the Interim VRO
6 The appellant's application for the Interim VRO was filed on 11 July 2012. The factual basis put forward by the appellant was that she had received about 33 calls on her mobile phone from an unknown number, and that she received a call from the respondent in which he is alleged to have used abusive language towards her.
7 The Interim VRO was granted on 11 July 2012. It was for a term of two years. Among other things, it restrained the respondent from behaving in any intimidatory, offensive or emotionally abusive manner towards the appellant and, with limited exceptions, from communicating, or attempting to communicate, with the appellant by any means whatsoever.
8 The respondent was served with the Interim VRO and elected to contest it. A trial as to whether final orders would be made was listed for 19 December 2012. It was not able to proceed on that date and was relisted to 20 March 2013.
March 2013 Decision - Magistrate Fisher
9 The application before Magistrate Fisher was an application by the respondent pursuant to MCCPA s 17(2) to strike out the application made by the appellant under the ROA. It was made on the grounds that the application was either an abuse of the process of the court or, alternatively, vexatious or improper. (For ease of reference, I will refer to the transcript of the hearing on 20 March 2013 before Magistrate Fisher by the letter 'A' followed by the page number – ts A4.)
10 MCCPA s 17 provides:
17. Striking out, Court's powers as to
(1) The Court may strike out all or a part of a case statement if -
(a) any claim in it is outside the Court's jurisdiction; or
(b) it does not disclose any reasonable grounds for any claim, or for any defence, in it; or
(c) its purpose is to harass or annoy, or to cause delay or detriment, or is otherwise wrongful; or
(d) it is an abuse of the Court's process; or
(e) it is frivolous, vexatious, scandalous or improper.
(2) If the Court strikes out all of a case statement the Court may give judgment accordingly without a trial.
(3) The Court may set aside a judgment given under subsection (2) and may do so on conditions as to the payment of costs or as to other matters.
12 In addition to the orders pursuant to FLA s 79A, the appellant sought what was described as an 'Interim Procedural Order' against the respondent in the following terms:
That the husband be forthwith restrained and an injunction granted restraining him from telephoning the wife, abusing the wife or denigrating the wife in any manner whatsoever.
13 The factual basis for this order, as set out in the affidavit filed by the appellant dated 24 August 2012, was the same as for the Interim VRO: 33 calls received on her mobile phone from an unknown number, and that she received a call from the respondent in which he is alleged to have used abusive language towards the appellant (ts A7).
14 The appellant's application pursuant to FLA s 79A was heard and determined by Federal Magistrate Kelly, who delivered written reasons dated 30 January 2013. However, only the final orders and not the reasons were available to Magistrate Fisher (ts A20). The formal orders made were to dismiss the appellant's application pursuant to FLA s 79A, that '[a]ll outstanding applications are dismissed as finalised' and some other programming and costs orders.
15 At the hearing before Magistrate Fisher in 2013, counsel for the respondent argued that:
(a) the factual matrix put forward by the appellant in the application under the ROA is exactly the same as she put forward to Kelly FM in the injunction application that was dismissed (ts A13);
(b) the legal effect of the restraining order is identical to an injunction in those terms (ts A13);
(c) the decision of Kelly FM activated the principle of res judicata, which once activated does not give the court a discretion to waive its effect so as to allow the other application to proceed;
(d) as an alternative, the decision of Kelly FM gave rise to an issue estoppel as there had been a judicial determination of the allegation concerning the phone calls allegedly made by the respondent, disposing of the issue of whether the respondent should be restrained in relation to this conduct once and for all, with the effect that the issue of restraining the respondent on the same factual basis cannot subsequently be raised by the same parties in a different jurisdiction seeking the same relief (ts A17); and
(e) both res judicata and issue estoppel are based on the principle of the need to bring finality to litigation and that no party should be harassed twice for the same matter (ts A15).
16 At the hearing, counsel for the appellant argued that:
(a) the Interim VRO was in place when the proceedings in the Federal Magistrates Court were commenced, and the injunction sought was additional or ancillary relief (ts A28);
(b) Kelly FM was aware that the Interim VRO was in place (ts A20);
(c) at no stage was there any hearing of the facts relating to the telephone calls, and at no stage did Kelly FM examine and deal with each of the facts relating to the issue of domestic violence (ts A20); and
(d) accordingly, there was no res judicata or issue estoppel.
17 Magistrate Fisher based his decision on two grounds. The first was that the order of Kelly FM made it clear that the application for an injunction was dismissed. This, in his Honour's view, was sufficient to activate the doctrine of res judicata which, once activated, did not allow the court any discretion not to stay the other proceedings (ts A32).
18 Given the significance of the second ground to the determination of this appeal, it is appropriate that I quote his Honour's reasons in full (ts A32 - 33):
It would seem to me, with the clear understanding and with the assistance and guidance on the law by the applicant's counsel that there is, in a court, no discretion with the presence of res judicata that the court is obliged in those circumstances to stay permanently the application.
If, however, I would be wrong in that respect – and it matters perhaps relevantly that if I be wrong, I can only be wrong in respect of the submissions of Mrs McCardle's counsel that it was not a matter that was properly and completely considered by her Honour Magistrate Kelly – the same principle would of course apply in respect of issue estoppel.
But as I have indicated, if I be wrong in respect of each of those primary submissions of Mr McCardle's counsel, then it would seem to me in any event that historically, in respect of these particular matters generally, and particularly as regards, as Mrs McCardle would have it, the expiry – or the revocation, more particularly – of the restraining order issued in 2010, and with its revocation, the recommencement of abusive behaviour via phone calls, that she has sought to ventilate those concerns both in the Family Court, as an adjunct to her application to set aside a consent property order made in November of 2011.
Again, of course – or initially in proceedings in this court, and again in the Federal Court in South Australia – the matter is tending towards harassment, and in the circumstances, the use of the processes of the court as the instrument to deal with her concerns in an oppressive way towards Mr McCardle.
I would be of the view that it is important for the court to preserve its integrity in the fairness of proceedings between parties, to say that, in my respectful view, this application is itself an abuse of process, and I am not, I would not have thought, limited to this court alone. It is a process in the use of court or courts as an instrument of oppression that gives rise to the abuse. The application is subject to a permanent stay.
19 Magistrate Fisher also ordered that the appellant pay the respondent's costs to be taxed if not agreed. Those costs were subsequently taxed at $16,352.44. They have not been paid.
Appeal to the District Court
20 On or about 10 April 2013 the appellant appealed the March 2013 Decision to the District Court (First District Court Appeal).
21 In a decision delivered on 27 November 2013, Fenbury DCJ struck out the appeal pursuant to MCCPA s 43(3). That subsection provides that the 'appeal court may strike out the appeal if the likely costs of the appeal to the parties would be disproportionate to the amount of the claim in, or the nature of, the case which is the subject of the appeal'. His Honour's decision is reported as McCardle v McCardle [2013] WADC 182 (McCardle DC).
22 The key aspects of the reasoning of Fenbury DCJ to strike out the First District Court appeal are as follows:
(a) the telephone calls forming the basis of the interim VRO took place some 15 months prior to the hearing of the appeal [15];
(b) there was, and had not been, any impediment to the appellant seeking a fresh violence restraining order or equivalent in South Australia or Western Australia should there have been any basis to do so since July 2012 [17];
(c) there was no suggestion that the respondent had telephoned the appellant between July 2012 and the date of hearing of the appeal [18];
(d) if the appeal were successful, the best the appellant could hope to achieve was a remittal of the matter to the Magistrates Court for rehearing, but because the appellant was then at liberty to commence a fresh application, success in the appeal would place her in no better position than she was at the time of hearing the appeal [19], [24]; and
(e) the issues in the appeal were unusual and complex, and would take months to resolve, and would involve the respondent incurring significant costs [20] - [24].
23 His Honour concluded that 'the likely costs of the appeal were it to proceed further would be disproportionate to the nature of the case which is the subject of the appeal' [24]. His Honour also concluded that the appeal did not have a reasonable prospect of success, another basis for it to be struck out pursuant to MCCPA s 43.
Appeal to the Court of Appeal
24 On 7 January 2014 the appellant filed a notice of appeal in the Court of Appeal. The notice of appeal was filed out of time. A hearing was convened on 20 June 2014 for the purpose of determining whether the appellant should be given an extension of time within which to commence the appeal, as well as some other interlocutory applications.
25 The Court of Appeal (Murphy JA and Edelman J) dismissed the appeal on the basis that it was not commenced within time and the appellant's application to extend time was refused. The decision is reported as McCardle v McCardle [2014] WASCA 129 (McCardle CA). For present purposes, it is instructive to quote briefly from the reasons of the court ([34], [35], [39] - [41]):
It is sufficient to proceed, for present purposes, on the basis that it is arguable that the judge erred by, in effect, understating the degree of 'domestic and family violence' evidenced by the 'blocked number' telephone calls, the alleged verbal abuse of the appellant from the respondent in the call she answered, and the failure to take into account incidents which allegedly occurred after July 2012. It is sufficient to proceed on that basis because the question of whether it is in the interests of justice to grant the appellant leave to file the appeal out of time raises other issues to which we now turn.
Even if the appeal had arguable merit, the relief sought by the appellant is to the effect that the interim orders of July 2012 be reinstated with a view to there being a final hearing of the appellant's application of 11 July 2012 in the Busselton Magistrates Court, and a rehearing of the respondent's strike-out application. That is not the relief which this court could give even if the appeal succeeded. This court could at most set aside the decision to strike out the appellant's appeal to the District Court. That would still leave the appellant's appeal to the District Court to be determined. That would entail, no doubt, further delay and, possibly, a further appeal to this court by the unsuccessful party on the District Court appeal.
…
In conclusion, independently of the merits of the appellant's appeal and although the matters raised by the appellant are plainly matters of great significance to her, it is important to emphasise the consequences of any successful appeal to this court. The need to emphasise the consequences of a successful appeal to this court arises because in both written submissions (par (k)) and oral submissions in this court, the appellant explained that she wanted orders on her appeal for her application for a VRO to be heard by a magistrate. This court could not make those orders on her appeal. If the appellant were successful in her appeal to this court then the interlocutory order in the District court would be quashed and the matter sent back to the District Court for a hearing of the appellant's appeal to that court.
In other words, before the appellant could achieve her objective of a hearing before a magistrate for a VRO, the following would need to occur:
(a) the appellant would need to succeed in her appeal to this court requiring the District Court to hear the merits of her grounds of appeal set … Although the orders of the District Court judge were confined to s 43(3) of the Magistrates Court (Civil Proceedings) Act, his Honour's reasons for decision also relied on the lack of reasonable prospects of success of those grounds of appeal (see s 43(4)(b) of the Magistrates Court (Civil Proceedings) Act. The potential for success of those particular grounds may also be an issue on an appeal to this court which might be a further hurdle for the appellant to overcome; and
(b) the appellant would need to be successful in the District Court merits appeal and any appeal from that decision.
In contrast, as the primary judge observed in the District Court, and as we would reiterate, there is and has been no impediment to the appellant seeking a fresh violence restraining order in Western Australia or the equivalent in South Australia, particularly in relation to any events since July 2012 (about which there were a number of allegations in her affidavit evidence in this court and in the District Court).
Appeal to the High Court
26 The appellant appealed to the High Court. On 10 December 2014 the High Court dismissed the application for leave to appeal. Their Honours Justices Bell and Gageler said that the Court of Appeal applied 'settled principles of law in the exercise of procedural discretion'. This decision is reported as McCardle v McCardle [2014] HCASL 213.
Appellant's applications to the Magistrates Court in August 2015
27 In August 2015 Ms McCardle filed two applications in the Magistrates Court in the restraining order application.
28 The first was an application pursuant to Civil Judgments Enforcement Act 2004 (WA) (CJEA) s 15 for an order suspending the enforcement of the order for costs made as part of the March 2013 Decision. This application was filed on 31 August 2015.
29 The second was an application filed 28 August 2015 (August 2015 Application) seeking, among other orders, an order that the March 2013 Decision 'be set aside forthwith'. In the August 2015 Application, the appellant sought the following orders:
1. That this Application be heard urgently.
2. That the decision of His Honour, Magistrate Fisher in this Honourable Court on 20 March 2013 be set aside forthwith.
3. That any order for costs to the defendant husband be stayed.
4. That costs be awarded to the claimant wife.
5. Such further and other orders as this Honourable Court deems appropriate.
30 In support of the August 2015 Application, the appellant filed an affidavit affirmed 24 August 2015 (August 2015 Affidavit). In this affidavit, the appellant stated that she sought an order setting aside the decision of Magistrate Fisher on 23 March 2013 'on the basis of a denial of procedural fairness or natural justice, and a fraud on the Court due to misleading facts presented to [the Court] by or on behalf of the husband' (August 2015 Affidavit, par 3). The appellant asserts that the March 2013 Decision was made on the basis that the issue of a restraining order had been heard on the merits and finally determined in the FMC, when in fact this had not occurred, in particular because the FMC did not have jurisdiction to hear such an application. The appellant's affidavit of 24 August 2014 contained detailed allegations of what she described as abuse by the respondent towards her and her children both before and after the incident leading to the grant of the Interim VRO.
31 On 3 September 2015, a Registrar of the Magistrates Court issued to the appellant a Notice of Registrar's Refusal to Accept Documents. This notice was issued pursuant Magistrates Court (General) Rules 2005 (WA) (MCGR) r 9 which provides that: 'A registrar may refuse to accept for lodging any form that does not contain the information required by the form and any document that does not comply with rules of court made by the Court or with any other written law'. The reason for refusal was as follows:
The application concerns a Final Judgment, not being a Default Judgment of a type referred to in the rules, and there is no facility to allow lodgement. Rule 109 of the Magistrates Court (Civil Proceedings) Rules 2005.
32 Rule 109 of the Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCPR) provides:
109. Court order except judgment, applying for
(1) If a party wants to make an application for a Court order other than -
(a) a judgment after trial; or
(b) an order made in or as a consequence of a judgment not being an order to set aside a judgment given under the Act section 17(3), 18(6), or 19(3),
the party must lodge the approved form unless the Court gives leave under subrule (2).
(2) A party may, with the leave of the Court, make an application orally at any hearing.
33 In response, the appellant filed a document titled 'Application for Leave to Lodge a Document' pursuant to MCCPA s 17(3). This document was filed on 24 September 2015 (September 2015 Application).
September 2015 Decision - Magistrate Hamilton
34 The September 2015 Application was heard by Her Honour Magistrate Hamilton on 24 September 2015, being the September 2015 Decision the subject of the Appeal Notice. (I will refer to pages of the transcript of the hearing on 24 September 2015 by the reference 'B' followed by the page number.)
35 At the commencement of the hearing, her Honour stated the following about the process that would be adopted (ts B2):
All right. Now, look, for the benefit of Ms McCardle and Mr Grant can I say I'm in possession of a vast quantity of material including a number of affidavits from Ms McCardle and also from Mr McCardle and submissions in relation to the applications. I have read all of those and I don't believe it is necessary for there to be any further oral submissions made in relation to that material. There is just something that we need to do of a procedural nature from the outset.
36 In addition to the September 2015 Application, her Honour also dealt with the appellant's application for a suspension order pursuant to CJEA s 15. Her Honour declined to grant a suspension order. This aspect of her Honour's decision was not the subject of the Appeal Notice, so I do not need to consider it further.
37 In dealing with the September 2015 Application, her Honour considered whether the reason for refusal set out in the notice issued by the Registrar was justified. Her Honour held that it was not justified, adopting the following reasoning (using my abbreviations for ease of cross reference) (ts B3 - 8):
(a) the March 2013 Decision was made pursuant to MCCPA s 17(2), which provides that if 'the Court strikes out all of a case statement the court may give judgement accordingly without a trial';
(b) the appellant chose to commence an appeal from the March 2013 Decision rather than to apply to set it aside pursuant to MCCPA s 17(3), which provides that the 'court may set aside a judgment given under subsection 2 and may do so on conditions as to payment of costs or as to other matters';
(c) MCGR r 109 does not preclude an application being made pursuant to MCCPA s 17(3); and
(d) leave should be given to accept the August 2015 Application for filing.
38 Magistrate Hamilton then went on to consider whether the August 2015 Application was an abuse of process, 'as is suggested on behalf of the respondent' (ts B8). The genesis for this comment is that on 21 September 2015 the respondent had filed a response to the August 2015 Application, including an affidavit and an outline of submissions. In the affidavit, the respondent stated that he sought to have the application dismissed as vexatious, frivolous and an abuse of process (par 13).
39 Her Honour observed that the August 2015 Application 'seeks to set aside, pursuant to section 17(3) of the Magistrates Court (Civil Proceedings) Act… [a] decision of Fisher M, notwithstanding the subject matter of that decision has been litigated thorough [sic] every relevant superior court in this country without success' (ts B8).
40 Her Honour then referred to a number of decisions in which the court found that applications were an abuse of process by re-litigating matters that had already been determined or by litigating claims based on substantially the same facts as a previously unsuccessful claim or being a collateral attack on a judgment already given. The decisions referred to were: Frigger v Lean [2015] WASC 125 (Mitchell J); Agapis v Birmingham DCJ [2013] WASC 329 (McKechnie J); Glew v White [2012] WASCA 138 (Pullin, Buss & Mazza JJ); Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248 (McKechnie J) and Erujin Pty Ltd v Western Australian Planning Commission [2010] WASC 326 (Allanson J) (ts B8).
41 Her Honour then quoted in some depth from the decision of Mitchell J in Frigger, who in turn had relied on the observations of Buss JA in Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4. The following passages from the decision in Frigger were referred to [29] – [31]:
In Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 [4] - [11], Buss JA summarised the law concerning the power of this court to prevent its procedures being abused, in terms with which I agree. As Buss JA noted at [5], what constitutes an abuse of process is incapable of being described exhaustively.
However, as Buss JA also noted at [6], the High Court has stated that at least one of three characteristics will be apparent in many cases of abuse of process, namely:
1. the court's processes being invoked for an illegitimate or collateral purpose;
2. the use of the court's procedures being unjustifiably oppressive to a party; or
3. the use of a court's procedures bringing the administration of justice into disrepute.
Buss JA identified a number of propositions in Sheraz [8] - [20] concerning the nature of abuse of process, namely:
1. Inherent or implied power exists to prevent misuse of its procedures in a manner which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation or would bring the administration of justice into disrepute among right-thinking people.
2. Abuse of process extends to proceedings that are seriously and unfairly burdensome, prejudicial or damaging or productive of serious and unjustifiable trouble and harassment.
3. Categories of abuse are not closed and the court may exercise its power as and when administration of justice demands.
4. An abuse of process may arise where there are successive proceedings which cause or are likely to cause improper vexation or oppression.
5. It would be a scandal to the administration of justice if a litigant were to be permitted by changing the form of the proceedings to set up the same case again in circumstances where the same question had previously been disposed of.
6. A court may invoke principles of an abuse of process to prevent attempts to litigate an issue which should have been litigated in earlier proceedings, as well as to prevent attempts to re-litigate an issue which has, in substance, been litigated and determined in earlier proceedings.
7. The focus in applying the principles of abuse of process is on matters of substance and not form.
42 Her Honour concluded that the August 2015 Application 'falls within every one of seven propositions identified by Buss [JA], and therefore, in my view, it clearly amounts to an abuse of process and … is dismissed' (ts B10). The formal order made was to dismiss the August 2015 Application and for the appellant to pay the respondent's costs on an indemnity basis in the amount of $4,400 (incl GST).
Appeal notice
43 The appellant filed her appeal notice from the September 2015 Decision on 5 November 2015. An appeal from a decision of a Magistrate under the ROA or the MCCPA cannot be commenced more than 21 days after the date of judgment unless the District Court gives leave to do so: MCCPA s 40(3). The 21 day time limit expired on 15 October 2015, so the appeal was filed 20 days late. The appellant requires, and has sought, leave to extend the time within which the appeal notice may be lodged.
44 The grounds of appeal are as follows:
1. That her Honour Magistrate Hamilton erred in law and in fact by denying the Appellant natural justice and procedural fairness.
2. That Her Honour Magistrate Hamilton erred in law and in fact by failing to notify the parties that any decision was to be on the papers and not by verbal submissions.
3. That Her Honour Magistrate Hamilton erred in law and in fact by failing to give adequate reasons for her decision in denying the application to set aside a previous decision based on new evidence as provided by the Appellant and as annexed to an affidavit.
4. That Her Honour Magistrate Hamilton erred in law and in fact by failing to give the opportunity to the Appellant to speak, to make verbal submissions and to seek to strike out irrelevant parts of the Respondent's affidavit.
5. That Her Honour Magistrate Hamilton erred in law and in fact by failing to adequately consider the continued ongoing lack of evidence by the Respondent as to the original decision, and by failing to adequately consider the fresh new evidence as provided by the Appellant evidencing the original decision was incorrect both in law and in fact, and that a gross miscarriage of justice has occurred.
45 In his Notice of Respondent's Intention filed 18 March 2016, the respondent advised the court that he would argue that the Magistrates Court decision be upheld on the grounds relied on in the initial decision.
Appeal jurisdiction of the District Court
46 The September 2015 Decision was to strike out an application pursuant to MCCPA s 17(3) as being an abuse of the processes of the court. This is not a case in which the limitations on the right of appeal from decisions in ROA s 64 prevent the appellant from commencing an appeal: see generally Laurent v Fates [2015] WASCA 226; Armstrong v Saxby [2016] WADC 87. An application under the ROA is in the civil jurisdiction of the Magistrates Court: Laurent [45] - [47] (Reasons of the Court). The September 2015 Decision appears to have been made under the implied power of the court to deal with an abuse of its process: Laurent [48]. The right of appeal from a decision of this kind arises pursuant to MCCPA s 40.
47 An appeal pursuant to MCCPA s 40(1) is by way of a 'reconsideration of the evidence' that was before the Magistrates Court: District Court Rules 2005 (WA) (DCR) r 50(1). An appeal by way of a reconsideration of the evidence is to be undertaken by way of a rehearing: Brocklehurst v Wolinski [2015] WADC 36 [14] (Derrick DCJ); Butler v Bennett [2007] WADC 107 [6] – [10] (Bowden DCJ). Thus, the appellate powers of the District Court are only exercisable if the appellant demonstrates that the decision made by the magistrate the subject of the appeal was the result of some legal, factual or discretionary error: Allesch v Maunz [2000] HCA 40; (2000) 203 CLR 172 [23] (Gaudron, McHugh, Gummow and Hayne JJ). The onus is on the appellant to demonstrate this error: Jones v Darkan Hotel [2014] WASCA 133 [31] (judgment of the court). A breach of the duty to act judicially or in accordance with the rules of procedural fairness will constitute an error of law: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 366 – 367 (Deane J).
Progress of the appeal
48 By application dated 12 April 2016, the respondent sought an order that he have leave to seek orders that the appellant be declared a vexatious litigant pursuant to the Vexatious Proceedings Restriction Act 2002 (WA) (VPRA). In support of the application, the respondent filed an affidavit sworn by Joanne Karen Collie, a solicitor employed by his lawyers. That application was heard by me at the hearing of the appeal on 6 January 2017 (see [130] – [158] below).
49 On 31 March 2016 the appellant was made bankrupt and the Official Trustee was placed in control of her affairs (folio 23). At a directions hearing on 25 July 2016 an order was made that the parties file and serve any affidavit on the question of whether by reason of the appellant's bankruptcy the appeal is either stayed or abandoned (folio 30). The directions hearing in the appeal was relisted to 8 August 2016.
50 On 1 August 2016 the appellant filed an affidavit affirmed on 31 July 2016 on the issue of the impact of her bankruptcy on the appeal, as well as addressing the issue of whether she should be declared a vexatious litigant (folio 31). Annexed to this affidavit is a barely legible email which the appellant says is from her trustee in bankruptcy. The text appears to read: 'If you are continuing with legal proceedings relating only to the matter of a restraining order I confirm that subsection 60(4) of the Act allows you to do so'. She also filed submissions on this issue on 1 August 2016 (folio 35).
51 At a directions hearing on 8 August 2016, the principal registrar accepted that the appeal was not stayed by reason of the appellant's bankruptcy. The principal registrar programmed the appeal through to a further directions hearing. I will return to the bankruptcy issue at a later point in these reasons ([141] - [150]).
52 The parties filed detailed written submissions. The respondent filed his on 14 November 2016, and the appellant on 5 January 2017.
53 The appellant filed an appeal book containing the documents she relied on for the hearing of the appeal. This included affidavits sworn by her on:
• 17 March 2016 (filed on 22 March 2016, folio 12 & 14).
• 31 July 2016 (filed 1 August 2016, folio 31).
• 1 August 2016 (filed 1 August 2016, folio 33).
• 20 October 2016 (filed 24 October 2016, folio 42).
54 The District Court must decide the appeal on the material and evidence that was before the Magistrates Court, though it may grant leave to admit other evidence: MCCPA s 40(4); DCR r 50(2), r 50(3). The District Court is not to grant leave 'unless satisfied that there are special grounds for doing so': DCR r 50(3). At a directions hearing before me on 19 December 2016 it was unclear whether the appellant had formally sought leave to adduce further evidence. For the avoidance of doubt, I made an order that the affidavit filed by the appellant on 22 March 2016 stand as the application to adduce further evidence in the appeal. At the hearing on 6 January 2017, I advised the parties that I would deal with the issue of leave to adduce further evidence in the context of dealing with the merits of the appeal.
55 The respondent filed four affidavits in the appeal:
• Tanya Stephenson, sworn 21 March 2016 (filed 21 March 2016, folio 11) (being an affidavit of service).
• Joanne Karen Collie, sworn 12 April 2016 (filed 13 April 2016, folio 15).
• Joanne Karen Collie, sworn 1 August 2016 (filed 1 August 2016, folio 34).
• Joanne Karen Collie, sworn 9 November 2016 (filed 14 November 2016, folio 44) (relating to leave to appear by video link).
56 The appeal was heard before me on 6 January 2017. The appellant appeared in person by audio link. The respondent was represented by counsel and appeared by video link.
57 At the commencement of the hearing, the appellant sought an order that the hearing be adjourned on the grounds of her ongoing ill health. She filed an affidavit sworn 5 January 2017 in support of this application. For the reasons which are set out in the transcript of the hearing on 6 January 2017, I declined the application (I will refer to the transcript references for this hearing by the letter 'C' – ts C25 – 27). I did, however, make programming orders for the parties to file supplementary submissions. The appellant filed supplementary submissions dated 19 January 2017. The respondent filed supplementary submissions dated 27 January 2017.
Issues arising for determination
58 On the material before me, and in the context of the history which I have described in some detail, eight issues arise for consideration:
• Should the appellant be given leave to adduce further evidence in the appeal?
• Was the appellant denied procedural fairness in relation to the September 2015 Decision (appeal grounds 1, 2 and 4)?
• If the appellant was denied procedural fairness, should the court nonetheless exercise the discretion to dismiss the appeal?
• Did the magistrate make an error of fact or law in making the September 2015 Decision (appeal ground 5)?
• Did the magistrate provide adequate reasons for the September 2015 Decision (appeal ground 3)?
• Should the appellant be given leave to commence the appeal out of time?
• Should the appellant be declared a vexatious litigant?
• What final orders are appropriate?
Should the appellant be given leave to adduce further evidence in the appeal?
59 As I have indicated [54], the appellant must show special grounds to be allowed to adduce further evidence in the appeal.
60 For three reasons I am satisfied that there are special grounds for allowing the appellant to adduce additional evidence.
61 The first is that it is difficult, if not impracticable, to sift out the information relevant to the respondent's application under the VPRA (which the appellant is entitled to put on evidence to address) and evidence relevant only to the appeal.
62 The second is that the evidence largely repeats the evidence contained in the August 2015 Affidavit, and so does not expand the scope of the appeal.
63 The third is that, in order to bring some finality to the matter, I do not want the appellant to labour under the misapprehension that there is anything in the further evidence which would have led me to a different conclusion had it been admitted.
64 Accordingly, I grant leave for the parties to reply on the evidence set out at [53] and [55] above in the hearing of the appeal.
Was the appellant denied procedural fairness in relation to the September 2015 Decision?
65 Grounds of appeal 1, 2 and 4 raise the same issue. In essence, the appellant says that she was denied procedural fairness by the decision of Magistrate Hamilton to determine the application on the papers and not allow the appellant to make an oral submission.
66 I have quoted above ([35]) the relevant comment as to process adopted by her Honour at the commencement of the hearing on 24 September 2015.
67 As Rich J observed in Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, 589, it 'is a fundamental principle of natural justice, applicable to all courts whether superior or inferior, that a person against whom a claim or charge is made must be given a reasonable opportunity of appearing and presenting his case'.
68 The issues arising in the present appeal are somewhat similar to those considered by the Court of Appeal in Re Mr P G Cockram; Ex parte Tey [2013] WASCA 104 (Tey) [10] (Judgment of the Court). In that case, the judge at first instance dismissed an application by Mrs Tey for a review order under MCA s 36 in relation to the decision of a magistrate. The decision of the magistrate upheld a claim to the effect that Mrs Tey was required to pay $550. Mrs Tey appealed to the District Court, which appeal was dismissed. She then unsuccessfully appealed to the Court of Appeal, and was denied special leave to appeal to the High Court against the Court of Appeal's decision. In doing so she had costs orders made against her far in excess of the amount she was initially ordered to pay. After the appeal process came to an end, Mrs Tey began proceedings under MCA s 36 seeking a review of the magistrate's decision. The judge at first instance in the Supreme Court dismissed the review application at a directions hearing.
69 In Tey, Mrs Tey asserted that she had been denied procedural fairness by the judge at first instance. The allegation of breach of procedural fairness was based on the fact that the matter was listed for a directions hearing before the judge at first instance, and Mrs Tey did not know that she would have to make submissions as to why the proceeding should not be dismissed. She asked for an adjournment to put in written submissions, but that request was refused.
70 The court in Tey made the following observation which is apposite, notwithstanding that the appellant is legally qualified [7] - [8]:
In-person litigants with unmeritorious claims are appearing with increasing frequency in the courts. If a prima facie assessment leads a court to a view that the proceedings should be dismissed summarily on the basis that there is no reasonable prospect of succeeding, or on the basis that the grant of discretionary relief should be refused, or on the basis that the proceedings are an abuse of process, the appellant should be given the opportunity on proper notice to make submissions about why the proceedings should not be summarily dismissed.
That did not happen in this case. The appellant was summonsed to court for a directions hearing. She was then invited to make oral submissions about why the proceedings should not be dismissed. The appellant asked for an adjournment to put in written submissions, but that request was refused. The appellant was not given a fair opportunity to prepare what she wished to say.
71 The Court of Appeal found that Mrs Tey had been denied procedural fairness. The court concluded [14]:
The grounds alleging that there was a breach of the requirements of procedural fairness have merit in the sense that the appellant was, in the circumstances, not afforded procedural fairness, but it would be futile to set aside McKechnie J's order and give the appellant the opportunity to make further submissions which would not alter the outcome.
72 I will return to the futility argument shortly.
73 The process adopted by the Court of Appeal in Tey provides an instructive counterpoint to the approach adopted by the judge at first instance [4]:
The appellant was issued with a registrar's notice to attend to show cause why the appeal should not be dismissed on the basis that none of the grounds of appeal had any reasonable prospect of succeeding. The registrar's notice clearly listed the purpose of the hearing. The appellant filed submissions and an affidavit in support of her appeal late on the afternoon prior to the hearing and was given the opportunity to provide further oral submissions at the hearing.
74 The following observations by the Court of Appeal in Rowe v Stoltze [2013] WASCA 92 (Newnes JA, with whom Pullin and Murphy JJA agreed) are also instructive [51]:
… It is trite law that the rules of procedural fairness are not fixed or immutable. Procedural fairness is directed to avoid practical injustice and what is necessary to avoid practical injustice will depend upon the particular circumstances: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 [37]. In a curial setting there is no absolute right to have an action heard and determined on its merits. What the rules of procedural fairness require is that each party be provided with a reasonable opportunity to be heard: International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [54], [88], [141]. And what is a reasonable opportunity is to be judged nowadays not solely by reference to the interests of the parties but also having regard to the wider interest of other litigants waiting to have cases heard and the public interest in the proper and efficient use of the scarce public resources of the court: see Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175; Brocx v Hughes [96]. What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources: Sali v SPC Ltd (1993) 67 ALJR 841, 844 (Brennan, Deane, McHugh JJ) cited with evident approval in Aon (French CJ) at [26] - [27]. Moreover, as between parties to an action what constitutes a reasonable opportunity to be heard must be judged having regard to the effect of undue delay, including the stress and costs caused by having litigation hanging over a defendant's head for an undue period: see Aon [102].
75 In the present appeal, the hearing on 24 September 2015 was listed following the lodgement of the August 2015 Application, and was endorsed on the face of the August 2015 Application. There was then the notice issued by the Registrar on 3 September 2015. This prompted the September 2015 Application seeking leave to lodge the August 2015 Application.
76 Given the submissions filed by the respondent which I have referred to above ([38]), I am of the view that the appellant was sufficiently on notice that the respondent would be seeking to have the August 2015 Application summarily dismissed as an abuse of process, and would make submissions to that effect at the hearing on 24 September 2015.
77 However, I do not consider that, having received proper notice, the appellant was then 'given the opportunity … to make submissions about why the proceedings should not be summarily dismissed', to use the language of the Court of Appeal in Tey [7]. As set out above [35], Magistrate Hamilton in effect proceeded to determine the abuse of process issue on the papers. Grounds of appeal 1 and 4 have been made out. Ground 2 does not add anything. It would not have mattered if the appellant had received notice that the decision to summarily dismiss the August 2015 Application was to be made on the papers unless the appellant had been provided with an opportunity to make written submissions on the point.
If the appellant was denied procedural fairness, should the court nonetheless exercise the discretion to dismiss the appeal?
78 Not every denial of procedural fairness will result in the grant of relief: Stead v State Government Insurance Commission [1986] HCA 54; (1986) 161 CLR 141, 145 (Judgment of the Court); Buttarelli v Perpetual Ltd [2013] WASCA 254 [34] (Reasons of the Court); Tey [10]; Lourey v Legal Profession Complaints Committee [2012] WASCA 112 [112] (Murphy JA, with whom Pullin and Buss JJA agreed). The High Court in Stead expressed the principle in the following terms (145):
[A]n appellate court will not order a new trial if it would inevitably result in the making of the same order as that made by the primary judge at the first trial. An order for a new trial in such a case would be a futility.
For this reason not every departure from the rules of natural justice at a trial will entitle the aggrieved party to a new trial. By way of illustration, if all that happened at a trial was that a party was denied the opportunity of making submissions on a question of law, when, in the opinion of the appellate court, the question of law must clearly be answered unfavourably to the aggrieved party, it would be futile to order a new trial.
79 The key question identified by the High Court is: 'Would further information possibly have made any difference?' (145).
80 In Lourey, Murphy JA made the following observation as to how the principles set out in Stead are to be applied [112]:
There has been a consideration in some authorities of whether the principles in Stead v State Government Insurance Commission involve the application of a 'forward looking test' or a 'backward looking test', or … As discussed in the authorities, the 'forward looking test' involves a consideration of whether relief for a breach of the rules of natural justice would be futile because a new hearing will inevitably result in the same order. The 'backward looking' test involves a consideration of whether the breach would have made any difference to the actual result at the impugned hearing.
81 His Honour went on to apply both tests: Lourey [124].
82 In relation to the two tests, in Woolworths Ltd v Commissioner of Police [2013] WASC 413 [129], Edelman J observed:
It will usually be sufficient simply to ask whether the lack of procedural fairness could not have affected the outcome. However, in light of the subtle differences in the passages quoted above in Stead, I prefer to follow the approach of Lindgren J (with whom Jenkinson J agreed) in Giretti v Commissioner of Taxation [(1996) 70 FCR 151]. That approach is that although the application of one or the other of the two passages will generally lead to the same result, an appellate court will not order a re-hearing if either the denial of procedural fairness would have made no difference at the previous hearing or if it would make no difference at a new hearing.
83 I therefore need to inquire whether, had the appellant been afforded the procedural fairness at the hearing on 24 September 2015 which I have found she was denied, it would have made a difference to the outcome. I also need to inquire whether, if I allowed the appeal and ordered a new hearing at which the appellant would be afforded the procedural fairness which I have found she was denied, it would make a difference to the outcome of that hearing.
84 The August 2015 Affidavit, filed in support of the August 2015 Application, contains a considerable amount of background information which was not of central relevance to the issue of whether the March 2013 Decision should be set aside pursuant to MCCPA s 17(3). This includes information and annexures about the appellant's poor health. The appellant also refers to the following acts by the respondent occurring after the application for the Interim VRO:
(a) an unspecific reference to her being abused by the respondent in 2015 (par 8);
(b) a reference to her eldest daughter being verbally abused in April 2015 (par 8, annexure RMC 3);
(c) an incident in 'late' 2014 in which the respondent is said to have verbally abused their younger son (par 9).
85 The appellant further refers to a number of acts by the respondent directed towards her and their daughter predating the Interim VRO which she also described as 'abuse'. She then refers to issues arising out of the property settlement between her and the respondent, which appear to be the issues canvassed in the decision of Kelly FM on 30 January 2013. The affidavit also contains a litany of more general complaints about the respondent. None of this factual material raises an argument as to why the August 2015 Application was not an abuse of process.
86 The August 2015 Affidavit does, however, contain two relevant arguments as to why the March 2013 Decision should be set aside. These arguments in turn are potentially relevant to the issue of whether the August 2015 Application was an abuse of process. I proceed on the basis that, if given the opportunity to make oral submissions, the appellant would have drawn these two matters to the attention of Magistrate Hamilton, and would also do so if a new hearing was ordered. Those arguments are:
(a) the effect of FLA s 114AB is that the FMC is precluded from hearing a restraining order matter that was already on foot in a State court; and
(b) the additional evidence which the appellant says confirms that Kelly FM did not consider the issue of an injunction against the respondent on its merits.
87 As to the first, by par (e) of the definition of the term 'matrimonial cause' in FLA s 4(1), that term is relevantly defined to include 'proceedings between the parties to a marriage for an order or injunction in circumstances arising out of the marital relationship (other than proceedings under a law of a State or Territory prescribed for the purposes of section 114AB)'. In proceedings of this kind, FLA s 114 empowers a court having jurisdiction under the FLA to 'make such order or grant such injunction as it considers proper with respect to the matter to which the proceedings relate, including … an injunction for the personal protection of a party to the marriage'. In this context, FLA s 114AB provides:
Operation of State and Territory laws
(1) Sections 68B, 68C, 114 and 114AA are not intended to exclude or limit the operation of a prescribed law of a State or Territory that is capable of operating concurrently with those sections.
(2) Where a person has instituted a proceeding or taken any other action under a prescribed law of a State or Territory in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section 68B or 114, the person is not entitled to institute a proceeding under section 68B or 114 in respect of that matter, unless:
(a) where the person instituted a proceeding:
(i) the proceeding has lapsed, been discontinued, or been dismissed; or
(ii) the orders (if any) made as a result of the institution of the proceeding have been set aside or are no longer in force; and
(b) where the person took other action--neither that person nor any other person is required, at the time that the person institutes a proceeding under section 68B or 114, to do an act, or to refrain from doing an act.
89 The appellant submits that in commencing the application pursuant to which she was granted the Interim VRO, she had instituted proceedings under the ROA in respect of a matter in respect of which she would have been entitled to institute a proceeding under FLA s 114. She states that the effect of FLA s 114AB is that the FMC was prohibited from hearing the matters covered by the application under the Interim VRO.
90 I note that the prohibition in FLA s 114AB is on the appellant from instituting proceedings, and not on the court from determining those proceedings once instituted. Its effect is that, having commenced an application under ROA, the appellant was in breach of FLA s 114AB by including the same matter in the application commenced in 2012 in the FMC, and seeking an injunction against the respondent 'in respect of a matter in respect of which the person would, but for this subsection, have been entitled to institute a proceeding under section … 114'.
91 It is by no means clear that FLA s 114AB operates to preclude the court from determining an application to which it applies; it may be that, properly construed, the court is able to determine the application unless the respondent raises an objection pursuant to FLA s 114AB. Or it may be that orders can be made pursuant to FLA s 114 to ensure consistency with the orders made under the State regime: L v L [2003] FMCAfam 549 [21] – [26] (Chief Federal Magistrate Bryant). For present purposes, I do not need to determine this issue. I proceed on the basis most favourable to the appellant that FLA s 114AB, properly construed, would have prevented the FMC from making the injunction sought by the appellant in relation to the conduct of the respondent (set out at [12]).
92 The second basis is that the FMC did not in fact hear evidence about, nor determine, the application for an injunction.
93 The appellant relies on an email dated 10 April 2014 from a solicitor employed by the respondent's then lawyers which she says contains an admission that the application for injunction was not fully prosecuted. The email is Annexure RMC2 to the August 2015 Affidavit, and the salient portion is as follows:
The fact that you may have failed to fully prosecute your application for such relief and subsequently did not obtain the orders that you sought in this jurisdiction does not mean you get to re-litigate these facts over and over again.
94 I do not consider that this email contains any 'admission' which is of assistance to the appellant; it merely recited what occurred.
95 The appellant says the written reasons of Kelly FM make it clear that her Honour did not consider the issue of the injunction. As I mentioned, these reasons were not before Magistrate Fisher. They were before Magistrate Hamilton, being annexed to the August 2015 Affidavit. The reasons do not specifically address the issue of whether the appellant is entitled to the injunctive relief sought. Instead, Kelly FM decided (par 67 of the reasons for decision):
Otherwise as discussed during the last hearing on 19 October it seems to me all other compliance issues have in fact now been dealt with. The orders of the Court today will be as now pronounced by me and I am otherwise inclined to dismiss all remaining enforcement applications.
96 The appellant further says that she has reviewed the transcripts of the proceedings before Kelly FM which again do not reveal any discussion of the issue of the injunction (par 17).
97 For present purposes I am prepared to assume, again favourably to the appellant, that there was no hearing in the FMC before Kelly FM at which evidence was called specifically on the issue of whether an injunction should be granted against the respondent in the terms sought by the appellant. I am also prepared to assume that there was no specific determination of this issue.
98 In making the March 2013 Decision, Magistrate Fisher was aware of the scenario that the FMC had not 'properly and completely considered' whether an injunction should be granted against the respondent in the terms sought by the appellant. His Honour accepted that, in this scenario, the doctrines of res judicata and issue estoppel would not apply. Accordingly, his Honour proceeded to consider a second basis on which the appellant's application under the ROA could be stayed, being abuse of process (ts A32 - 33, quoted above [18]).
99 As I have said, the context in which I need to consider the two arguments asserted by the appellant is twofold:
(a) would giving the appellant the opportunity to have made oral submissions at the hearing on 24 September 2015, and in particular to have developed these two arguments, have made a difference to the outcome of this hearing; and/or
(b) would giving the appellant the opportunity to make oral submissions at a new hearing, and in particular to develop these two arguments, make a difference to the outcome of that hearing.
100 In each case, the issue for determination is whether it would be an abuse of the processes of the court to allow the appellant to proceed with the August 2015 Application. The issue for determination is not whether the March 2013 Decision should be set aside.
101 In my view there are two reasons why giving the appellant the opportunity to have made oral submissions at the hearing on 24 September 2015, and in particular to have developed the two arguments which I have identified, would have made no difference to the outcome of this hearing. The first is because these two arguments are squarely raised in the August 2015 Affidavit, which as I have said annexed the reasons for decision of Kelly FM (Annexure RMC8). Magistrate Hamilton made it clear that she had read all the material which had been filed (ts B2).
102 The second is that the two arguments do not undermine the conclusion that the August 2015 Application fell within the scope of the abuse of process identified by Buss JA in Sheraz. The August 2015 Application was a clear attempt to re-litigate an issue which had, in substance, been litigated and determined in earlier proceedings, being a challenge to the March 2013 Decision. This issue was litigated in the First District Court Appeal. Consistently with the authorities that I have referred to above ([47]), in order for the March 2013 Decision to have been set aside in the First District Court Appeal, the appellant would have had to have demonstrated an error of law or fact. In the August 2015 Application, the appellant was again trying to challenge the March 2013 Decision, this time by changing the form of the proceedings to an application to set it aside under MCCPA s 17(3).
103 Moreover, the two arguments do not undermine the conclusion that to allow the August 2015 Application to proceed would be oppressive to the respondent. At the heart of this oppression is the futility and lack of proportionality in the appellant's actions. As I have mentioned, in November 2013, in the First District Court Appeal, Fenbury DCJ concluded that 'the likely costs of the appeal to the parties would be disproportionate to the … nature of the case which is the subject of the appeal', for the purposes of MCCPA s 43(3). As at November 2013 the Interim VRO, had it not been permanently stayed, still had just over six months of its term to run. Since then, the appellant has incurred the costs of the unsuccessful appeals to the Court of Appeal and the High Court. Moreover, the initial term of the Interim VRO lapsed 12 months prior to the commencement of the August 2015 Application. In oral submissions before me, the appellant was not able to draw my attention to any practical utility in having the March 2013 Decision set aside. Nor is any such practical utility identified in the submissions filed by the appellant. The futility and lack of proportionality which led to Fenbury DCJ striking out the appeal pursuant to MCCPA s 43(3) in November 2013, are even more stark when it comes to the August 2015 Application.
104 In the August 2015 Affidavit, the appellant identifies further conduct by the respondent which she characterises as being abuse towards her or her children (see above [84] – [85]). In response to this conduct, it was open to the appellant to have made a fresh application for a violence or misconduct restraining order under the ROA or its equivalents in Victoria or South Australia. This would have allowed her to bring to the attention of the relevant court the conduct after July 2012 which she refers to in her affidavit. This course of action was drawn to the attention of the appellant by Magistrate Fisher in March 2013 (ts A33), Judge Fenbury in November 2013 (McCardle DC [17]) and the Court of Appeal in July 2014 (McCardle CA [36]). Notwithstanding this advice, the appellant has focussed on the March 2013 Decision.
105 The power to summarily terminate proceedings for an abuse of process must be exercised with caution: Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 [24] (French and Gummow JJ); Shilkin v Taylor [2011] WASCA 255 [40] (Newnes JA, with whom Pullin and Buss JJA agreed). Even with this caution, had the appellant been given the opportunity to make oral submissions at the hearing on 24 September 2015, and in particular to have developed the two arguments which I have identified, this would have made no difference to the outcome of the hearing.106 In relation to the second context, for the same reasons, I am also of the view that giving the appellant the opportunity to make oral submissions at a new hearing, and in particular to develop these two arguments, would make no difference to the outcome of the hearing; it would still result in the August 2015 Application being struck out as an abuse of process.
107 In oral submissions and written supplementary submissions, the parties canvassed the issue of the impact of the August 2015 Application being brought outside the applicable time limit for an application pursuant to MCCPA s 17(3). That time limit is set by Magistrates Court (Civil Proceedings) Rules 2005 (WA) (MCCPR) r 79 at 21 days after the date of the judgment. There is a discretion to extend the time limit in MCCPA s 16(1)(a), so there is no automatic bar to the appellant commencing the August 2015 Application; she does, however, require leave. In view of the decision I have come to in the preceding paragraph, I do not need to consider whether or not the appellant would be granted that leave. I do, however, observe that it would have been much easier for the respondent to have persuaded Magistrate Hamilton that the appellant should not be granted the indulgence of leave to bring the application two years out of time (on which the appellant would have the onus), than to have persuaded the magistrate that the August 2015 Application was an abuse of the processes of the court (on which the respondent had the onus).
108 For these reasons, I am of the view that grounds of appeal 1, 2 and 4 do not justify the September 2015 Decision being set aside and remitted to the Magistrates Court for rehearing.
Did the magistrate make an error of fact or law in making the September 2015 Decision?
109 Appeal ground 5 is:
Her Honour Magistrate Hamilton erred in law and in fact by failing to adequately consider the continued ongoing lack of evidence by the Respondent as to the original decision, and by failing to adequately consider the fresh new evidence as provided by the Appellant evidencing that the original decision was incorrect both in law and in fact, and that a gross miscarriage of justice has occurred.
110 The essence of this ground of appeal is that Magistrate Hamilton failed to adequately consider the matters identified.
111 The decision of Magistrate Hamilton involved the exercise of a judicial discretion. The nature of the inquiry an appellate court is to undertake when reviewing a discretionary decision is conveniently summarised in the decision of Dixon, Evatt and McTiernan JJ in House v R [1936] HCA 40; (1936) 55 CLR 499 (504 - 505, references omitted):
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
112 In Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, Mason J and Deane J made the following comments elaborating on the principles set out in House (518 - 519):
Because these assessments call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right, the making of the order involves the exercise of a judicial discretion. The contrast is with an order the making of which is dictated by the application of a fixed rule to the facts on which its operation depends.
The principles enunciated in House … were fashioned with a close eye on the characteristics of a discretionary order in the sense which we have outlined. If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.
113 A failure to take into account a relevant consideration is thus capable of constituting an error of law in the exercise of a judicial discretion. Further, if the appellant satisfies me that, on the facts, the decision was 'unreasonable or plainly unjust', then I am able to infer that, 'in some way there has been a failure to properly exercise the discretion which the law reposes in the court of first instance'.
114 At the commencement of the hearing, Magistrate Hamilton made it clear that she had read all the material (ts B2, quoted above [35], also ts B7). The matters identified by the appellant in ground of appeal 5 go to the heart of the issue of whether the appellant was attempting to re-litigate matters that had already been determined or collaterally attack a judgment already given. This was the basis of Magistrate Hamilton's decision. The appellant has not satisfied me that these matters were not given adequate consideration by the magistrate.
115 Nor has the appellant satisfied me that the decision under review was unreasonable or plainly unjust. As set out above ([102] – [105]), there was ample justification for the magistrate to have come to the conclusion that to allow the August 2015 Application to proceed would be to countenance an abuse of the processes of the court.
116 Ground of appeal 5 is not made out.
Did the magistrate provide adequate reasons for the September 2015 Decision?
117 Appeal ground 3 is that 'Her Honour Magistrate Hamilton erred in law and in fact by failing to give adequate reasons for her decision in denying the application to set aside a previous decision based on new evidence as provided by the Appellant and as annexed to an affidavit'.
118 A failure to provide adequate reasons will constitute a denial of procedural fairness and thus an error of law: Australian Broadcasting Tribunal (366) – (367).
119 The following observations by the Court of Appeal in Mount Lawley Pty Ltd v Western Australia Planning Commission [2004] WASCA 149; (2004) 29 WAR 273 [26] – [27] (Judgment of the Court) are an appropriate and instructive starting point in considering this ground of appeal (references omitted):
The starting-point, in considering these grounds, is that the giving of reasons is a normal (albeit not universal) incident of the judicial process … That is because 'the duty is a function of due process, and therefore of justice' … Fairness requires that the parties should know why they have won or lost. A requirement to give reasons is likely to produce a more soundly based, rational judgment … The requirement also furthers judicial accountability …
Where there is a right of appeal, the reasons must be sufficient to give effect to that right. The basis for the decision must be apparent, as otherwise the losing party cannot know whether there has been a mistake of law or of fact. Just what that will involve depends upon the nature of the case. Some cases turn upon a simple contest of credibility between two witnesses. Others involve detailed and complex factual and legal issues requiring close reasoning and analysis.
120 The common law position is subject to Magistrates Court Act 2004 (WA) s 31:
31. Judgments, content of
(1) The Court's reasons for a judgment in a case -
(a) need only identify the facts that the Court has accepted in coming to its decision and give the reasons for doing so; and
(b) need only identify the law that the Court has applied in coming to its decision and give the reasons for doing so; and
(c) need not canvass all the evidence given in the case; and
(d) need not canvass all the factual and legal arguments or issues arising in the case.
(2) The fact that a judgment is given orally or in accordance with subsection (1) is not of itself a ground for reversing or modifying it on an appeal.
121 The definition of 'case' in MCA s 3 means that this provision applies to both civil and criminal proceedings.
122 In Manonai v Burns [2011] WASCA 165, Hall J, with whom Pullin and Murphy JJA agreed, made the following observations about the duty to give adequate reasons in the context of MCA s 31 [53]:
Although provisions like s 31 of the Magistrates Court Act are comparatively new, it has long been accepted that judicial officers have a duty to deliver reasons that expose the process by which a decision has been reached. This enables the parties to understand the basis for the decision. More importantly perhaps, it enables a losing party to determine whether or not they have any grounds on which to appeal the decision. Should there be an appeal, adequate reasons enable the appellate court to determine whether any errors of fact or law have occurred …
123 His Honour went on to make the following observation which is of particular relevance to the summary determination of a matter by a magistrate in chambers [56]:
The realities of pressure of work and limited time in the magistrate's court must be acknowledged. Section 31 of the Magistrates Court Act obviates any need for a magistrate to canvass all of the evidence given in the case or to canvass all the factual and legal arguments or issues arising in the case. These dispensations appear to recognise the summary nature of proceedings in the Magistrates Court. Reasons can be adequate and comply with s 31 of the Magistrates Court Act without having to be unduly long. It is the substantive content of the reasons rather than their length which is important.
124 In the present appeal, the basis for Magistrate Hamilton's decision is clear from her Honour's reasons, and, in my view, sufficient for the parties to understand the basis of the decision. Notwithstanding the concern raised as to the adequacy of the reasons, the appellant was able to articulate a substantive ground of appeal asserting errors of law and fact in relation to the decision under appeal. The reasons are more than sufficient for me, sitting as the appellate court, to determine whether any errors of law or fact were made.
125 Even if I were of the view that Magistrate Hamilton's reasons were inadequate, it would not automatically follow that the September 2015 Decision would be set aside. Rather, an appeal court will only intervene when the inadequacy is such as to give rise to a miscarriage of justice: Bennett v Carruthers [2010] WASCA 131 [39] (Mazza J, with whom McLure P and Newnes JA agreed); Mount Lawley [29] (Judgment of the Court). For the reasons set out above ([102] to [103]), even if I were of the view that Magistrate Hamilton's reasons were inadequate in some regard, I do not consider that there was any miscarriage of justice in the September 2015 Decision.
126 Ground of appeal 3 has not been made out.
Should the appellant be given leave to commence the appeal out of time?
127 As I have mentioned, the appellant filed her Appeal Notice late, some 20 days out of time, and requires the leave of the court to commence the appeal out of time.
128 The principles governing the grant of an extension of time within which to commence an appeal in the Court of Appeal were considered by that court in Simonsen v Legge [2010] WASCA 238 [8], principles referred to by the Court of Appeal in McCardle CA. These principles are apposite to an appeal to the District Court from the Magistrates Court: see for example, Dincer v Giancristofaro [2015] WADC 49 [8] - [11] (Bowden DCJ); Saxby [39].
129 I grant the appellant leave to commence out of time. The delay of 20 days is minimal. The respondent did not draw my attention to any particular prejudice which he suffered as a result of the delay in commencing the appeal. Finally, and most significantly, I have found that the appellant was denied procedural fairness in relation to the September 2015 Decision, so her appeal had a modest amount of merit.
Should the appellant be declared a vexatious litigant?
130 By application in the appeal dated 15 April 2015 the respondent sought orders pursuant to the VPRA. In oral submissions before me counsel for the respondent advised the court that the respondent's primary concern is the possibility of an appeal from this decision to the Court of Appeal and then the High Court, with the consequence that the respondent will have to spend more costs which, given the bankruptcy of the appellant, would not be recoverable.
131 In submissions filed on 9 November 2016, the respondent claimed the following relief:
(a) the appeal be dismissed or, in the alternative, be permanently stayed pursuant to VPRA s 4(1)(c);
(b) the appellant be declared vexatious pursuant to VPRA; and
(c) the appellant be prohibited from instituting any proceedings against the respondent without the leave of the court pursuant to VPRA s 4(1)(d).
132 VPRA s 4 is in the following terms:
4. Restriction of vexatious proceedings
(1) If a Court is satisfied that -
(a) a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or
(b) it is likely that the person will institute or conduct vexatious proceedings,
the Court may make either or both of the following orders -
(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;
(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).
(2) An order under subsection (1) may be made by the Court on its own motion or on the application of —
(a) the Attorney General; or
(b) the Principal Registrar of the Supreme Court or the Principal Registrar of the District Court; or
(c) with the leave of the Court -
(i) a person against whom another person has instituted or conducted vexatious proceedings; or
(ii) a person who has a sufficient interest in the matter.
(a) staying any proceedings that have been instituted by a person, either as to the whole or part of the proceedings; or
(b) prohibiting a person from instituting proceedings, or proceedings of a particular class,
without hearing that person or giving that person an opportunity of being heard.
134 The fact that an alternate order which may be made is to stay proceedings makes it clear that an application may be made within an existing proceeding. The term 'proceedings' is defined in VPRA s 3 to include an appeal. I am therefore of the view that the respondent can bring the application within the present appeal.
135 The appellant has been heard on this issue as it was addressed at the hearing on 6 January 2017, as required by VPRA s 4(3). She also had the opportunity to address the issue in her supplementary submissions (ts C26).
136 The power in VPRA s 4(2)(c)(i) to grant the respondent leave to bring the application, and to grant the application, requires me to find that the appellant 'has instituted or conducted vexatious proceedings'. 'Vexatious proceedings' is defined in VPRA s 3 to mean proceedings:
(a) which are an abuse of the process of a court or a tribunal; or
(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose; or
(c) instituted or pursued without reasonable ground; or
(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
137 In my view, the appellant has instituted or conducted vexatious proceedings. The findings of Magistrate Fisher as to abuse of process which I have set out above [18], fall within the definition of 'vexatious proceedings'. The reasoning of Fenbury DCJ set out above [22] – [23] is an ample basis for the conclusion that the First District Court Appeal was instituted without reasonable grounds and/or in a manner so as to harass the respondent. I am likewise of the view that the appeals to the Court of Appeal and High Court were instituted without reasonable grounds and/or in a manner so as to harass the respondent. Accordingly, I am of the view that the appellant 'has instituted or conducted vexatious proceedings', enlivening the power in VPRA s 4(2)(c)(i).
138 The court has a discretion whether to make an order pursuant to VPRA s 4 and if so, what order to make: Michael Mischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146 [68] (Tey (VPRA)) (Le Miere J). His Honour went on to summarise the matters which must be taken into account in exercising this discretion [69] – [70]:
In exercising my discretion there are a number of matters which I must take into account. The right of an individual to commence proceedings to enforce or defend his rights is one of the fundamental rights in a free society. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. To limit this right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification. The effect of an order made under s 4(1)(d) of the Act does not remove the right to issue proceedings entirely. A person against whom such an order has been made still has access to the courts. However, she is required to take an additional step in the process by obtaining the permission of the court prior to any claims being issued. Nevertheless, the making of an order under s 4(1) of the Act restricts the rights of the person against whom such an order has been made and for that reason the powers conferred by that section must be exercised with caution.
The court must have regard to the purposes of the Act. The factors which are relevant to the exercise of the discretion are informed by the purpose which the order serves. There are two principal social mischiefs which vexatious litigant legislation traditionally addresses. The first is the waste of scarce and valuable judicial resources on barren and misconceived litigation to the detriment of other litigants with real cases to try. The second is the harassment of litigant's opponents by the worry and expense of vexatious litigation.
139 An appeal from this decision was dismissed: Tey v Michael Mischin MLC, Attorney General for Western Australia [No 2] [2015] WASCA 243.
140 Given that the appeal has been heard on the merits, no good purpose is served by staying it. The respondent has already incurred the costs of the appeal. He has succeeded on the merits. In part, the mischief which VPRA s 4(1)(c) is directed to is where the proceedings have been commenced against a party who considers it to be vexatious, and who wishes to have the litigation stayed prior to having incurred the costs of defending it. A stay would simply invite a further application to lift the stay so that the appeal could be determined. In my view, a final decision is required.
141 In considering what, if any, other orders are appropriate I need to have regard to the fact that the appellant is bankrupt. Pursuant to the Bankruptcy Act 1966 (Cth) (BA) s 60, strict limits are placed on the ability of a bankrupt to continue with existing litigation. However, relevantly for the present appeal, BA s 60(4)(a) provides that 'a bankrupt may continue, in his or her own name, an action commenced by him or her before he or she became a bankrupt in respect of … any personal injury or wrong done to the bankrupt, his or her spouse or de facto partner or a member of his or her family'. 'Action' is defined to mean 'any civil proceeding, whether at law or in equity'. BA s 60(4)(a) is aligned to BA s 116(2)(g)(i) which excludes from the 'property divisible among creditors' any right of the bankrupt to recover damages or compensation 'for personal injury or wrong done to the bankrupt or a member of the family of the bankrupt'.
142 The test as to whether an action is for 'personal injury or wrong' within BA s 60(4) is 'whether the damages or part of them are to be estimated by immediate reference to pain felt by the bankrupt in respect of his mind, body or character and without reference to his rights of property': Cox v Journeaux (No 2) [1935] HCA 48; (1935) 52 CLR 713, 721 (Dixon J); Duckworth v Water Corporation [2012] WASC 30 [86] (Edelman J). In Duckworth, Edelman J went on to refer to the following observation by Lockhart J in Faulkner v Bluett [1981] FCA 3; (1981) 52 FLR 115, 119:
The common thread running through these cases [exceptions to the rule that rights of actions generally pass to the trustee of a bankrupt's estate] is that where the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt, the right to sue passes to the trustee notwithstanding that it may have produced personal inconvenience to the bankrupt … Where the essential cause of action is the personal injury done to the person or feelings of the bankrupt the right to sue remains with the bankrupt.
143 Or as observed by O'Loughlin and Merkel JJ in Bryant v Commonwealth Bank of Australia (1997) 75 FCR 545, 564:
… But if the injury that was suffered or the wrong done arose as a direct result of the alleged infringements of his financial or property rights, as was the case in Faulkner v Bluett, then 'the primary and substantial right of action is direct pecuniary loss to the property or estate of the bankrupt'.
144 By way of illustration of these tests, a claim for unlawful discrimination by a bankrupt against her employer seeking damages for physical and mental injury was considered to amount to a 'personal injury or wrong' within BA s 60(4)(a): Rana v The University of South Australia [2008] FCA 1903 [29] (Besanko J). On the other hand, a claim stemming from the termination of the bankrupt's employment where the relief sought was essentially of an economic nature, and there was no claim for compensation by way of damages for personal injury, was held not be for a 'personal injury or wrong': Pelechowski v NSW Land and Housing Commission [2000] FCA 233 [5] (Madgwick J).
145 In my view, an application for a violence restraining order or a misconduct restraining order under the ROA by a bankrupt is an action in respect of a personal injury or wrong done to the bankrupt within BA s 60(4). The essence of the cause of action is the actual or threatened injury to the person of the bankrupt. The wrong does not involve direct pecuniary loss to the property or estate of the bankrupt.
146 In summary, I am of the view that:
(a) the present appeal is a civil proceeding for the purposes of BA s 60;
(b) the initial application for the violence restraining order by the appellant under the ROA was an application in respect of a personal injury or wrong done to her for the purposes of BA s 60(4); and
(c) the present appeal is in respect of a personal injury or wrong done to the appellant.
147 However, s 60(4) only permits the continuation of proceedings. As to the commencement of fresh proceedings, 'the capacity to exercise, and to take proceedings for exercising all such powers in, over or in respect of property as might have been exercised by the bankrupt for his or her own benefit at the commencement of the bankruptcy or at any time after the commencement of the bankruptcy and before his or her discharge' is property divisible amongst the creditors of the bankrupt and vest in the bankrupt's trustee: BA s 116(1)(b). This is subject to BA s 116(2)(g)(i) which, as I have already noted, excludes from the 'property divisible among creditors' any right of the bankrupt to recover damages or compensation 'for personal injury or wrong done to the bankrupt or a member of the family of the bankrupt'. As Lockhart J observed in Faulkner this provision 'gives statutory recognition to the principle evolved by the "common law of bankruptcy" that rights of action in respect of the person or feelings of a bankrupt do not vest in the trustee' (119) – (120). The intent is that 'the bankrupt's participating creditors should not be entitled to the benefit of compensation paid to a bankrupt for a personal injury or wrong done to any of the specified persons': Fletcher v Westpac [2012] WASCA 154, [14] (Newnes JA, with whom Pulllin and Murphy JJA agreed).
148 By parity of reasoning as to the scope of BA s 60(4), BA s 116(1)(b) would not preclude the appellant from making a future application pursuant to the ROA as this is a right of action in respect of her person which does not vest in her trustee in bankruptcy. Nor would the appellant's bankruptcy preclude her from commencing proceedings under comparable legislation in another State. Nor would it preclude the appellant commencing an appeal from this decision.
149 However, the mischief which BA s 60 and s 116(1)(b) is, in part, designed to prevent still applies. In this regard, in Duckworth, Edelman J observed [43] – [44]:
It has often been repeated that one rationale behind s 60(2) is 'to protect those whom the bankrupt has been suing': Re Lofthouse (158) [19]; Owens v Comlaw (No 62) Pty Ltd (284) [40] (Ashley JA; Redlich JA agreeing). In Want v Moss (1889) 10 LR (NSW) 274, 279, Manning J said that 'it would be monstrous if ... a bankrupt, who can have no means to pay costs if he fails, should be allowed to go on and put the plaintiff to trouble and expense'.
The reason why those whom the bankrupt has been suing need protection is because 'if the defendant or other party should be successful in the proceeding, and should obtain an order that the [bankrupt] pay the costs of the proceeding, the order will be effectively unenforceable because of the bankruptcy': Re Lofthouse (158) [19]; Owens v Comlaw (No 62) Pty Ltd [40] (Ashley JA); Temsign Pty Ltd v Biscen Pty Ltd (54) (Wheeler J).
150 There is thus some utility in the respondent's application pursuant to the VPRA, notwithstanding the fact that the appellant is a bankrupt.
151 There are three relevant fresh proceedings which it would be open for the appellant to commence, and which she would not be precluded from doing as a result of her bankruptcy:
(a) an appeal to the Court of Appeal from this decision;
(b) an application under the ROA arising out of her current concerns; and
(c) a further challenge to the March 2013 Decision or the August 2015 Decision.
152 As regards the first, under the VPRA, proceedings include 'an appeal from a decision …, whether or not a final decision … of a court'. It is thus open to me to make an order under VPRA s 4(1)(d) preventing the appellant from lodging an appeal from this decision to the Court of Appeal. Otherwise, the appellant could appeal as of right, provided that the appeal was commenced within time: MCCPA s 42.
153 The issue is whether I should exercise the discretion to do so.
154 In my view, the case would need to be truly exceptional before it would be appropriate for a judge of the District Court to make an order restricting a litigant from exercising his or her right to appeal a decision to the Court of Appeal. This seems to me to be an inappropriate fetter on the proper oversight of the District Court by the Court of Appeal. The Court of Appeal has a well-established procedure to identify appeals with no reasonable prospect of success, resulting in a notice to show cause why the appeal should not be struck out and a hearing before two Justices of Appeal to determine the issue: see Supreme Court (Court of Appeal) Rules 2005 (WA) r 43(2)(g)(i) and by way of example Laurent and Tey.
155 As to the second, if the appellant is able to persuade a magistrate that circumstances currently exist which justify the making of an interim violence or misconduct restraining order, then I can see no injustice in allowing such an order to be made. Indeed, as I have mentioned, this is the course which the appellant has been encouraged by the judiciary to take on a number of occasions (see [104] above).
156 That leaves the third class of proceedings, being a further challenge to the March 2013 Decision or the August 2015 Decision. This is not a hypothetical situation as it would be possible for the appellant to challenge each decision pursuant to MCA s 36. This section allows a person aggrieved by a decision of the Magistrates Court to have it reviewed by the Supreme Court. This was the course adopted by Mrs Tey in Tey, following an unsuccessful appeal to the District Court and Court of Appeal.
157 In my view, having regard to the factors identified in Tey (VPRA) set out above [138], an order under the VPRA restricting the appellant from taking further proceedings to collaterally challenge either the March 2013 Decision or the August 2015 Decision is justified. The respondent already has in his favour costs orders in excess of $40,000 defending challenges to the March 2013 Decision, with the costs of the appeal to the Court of Appeal yet to be taxed (see respondent's submissions filed 16 November 2016, par 11). The taxed costs have not been paid. There have now been five court decisions, including this one, to the effect that it is not open for the appellant to challenge the March 2013 Decision. The appellant has 'persisted in an unreasonable refusal to take no for an answer; she has persisted in unreasonably refusing to accept the finality of court decisions': Tey (VPRA) [71].
158 I am satisfied that the respondent should be given leave to make the application pursuant to VPRA s 4(2)(c)(i). An order should be made pursuant to VPRA s 4(1)(d) prohibiting the appellant from instituting proceedings pursuant to MCA s 36 in relation to the March 2013 Decision and the September 2015 Decision without the leave of a court.
What final orders are appropriate?
159 For the reasons set out above, the appeal must be dismissed.
160 The parties made submissions on costs at the hearing on 6 January 2017. They also dealt with the issue in their supplementary submissions. I am thus in a position to deal with the issue of costs in these reasons.
161 In her supplementary submissions, the appellant made submissions about the costs orders in the earlier decisions to which I have referred in these reasons (pars 14 to 16). These submissions go beyond the scope of the present appeal.
162 The costs issue in the present appeal is limited to what order should be made as to the costs of the appeal.
163 In submissions filed on 9 November 2016, the respondent sought an order that the appellant pay his costs on an indemnity basis fixed at $22,119.37 (incl GST). There is a clear power, and well established precedent, for the court to award costs on an indemnity basis on the ground that the manner in which the unsuccessful party conducted itself was so unreasonable that it is deserving of sanction by the court. The relevant principles are conveniently summarised by the Court of Appeal in Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129(S) [10] (Reasons of the Court). As the appellant was successful in her argument that she was denied procedural fairness by Magistrate Hamilton, I am of the view that it is not appropriate to make an order for costs on an indemnity basis.
164 The costs of and incidental to all proceedings are in the discretion of the court: District Court of Western Australia Act 1969 (WA) s 64 (DCA); Rules of the Supreme Court 1971 (WA) (RSC) O 66 r 1(1). Without 'limiting the general discretion … the Court will generally order that the successful party to any action or matter recover his costs': RSC O 66 r 1(1); DCA s 64(1). Moreover, the usual order is for the costs to be assessed on a party and party basis: Swansdale [10].
165 On the material before me, there is nothing that would justify a departure from the usual order. The appropriate costs order is that the appellant pay the respondent's costs of the appeal on a party and party basis to be taxed if not agreed. This includes the costs in relation to the application pursuant to the VPRA. I accept that there is a real risk, perhaps an inevitability, that due to the appellant's bankruptcy, the respondent will not recover these costs; nonetheless, it is appropriate that the order be made.
166 The appropriate final orders are:
1. The appellant have leave to commence the appeal out of time.
2. The appellant and the respondent have leave to adduce further evidence in the appeal.
3. The appeal be and is hereby dismissed.
4. The respondent have leave to make the application dated 12 April 2015 for orders against the appellant pursuant to the Vexatious Proceedings Restriction Act 2004 (WA).
5. Pursuant to Vexatious Proceedings Restriction Act 2004 (WA) s 4(1)(d) the appellant is prohibited from instituting proceedings pursuant to Magistrates Court Act 1994 (WA) s 36 in relation to the decision of Magistrate Fisher on 20 March 2013 and/or the decision of Magistrate Hamilton on 24 September 2015 in Busselton Restraining Order Case No BUS930/12 without the leave of a court.
6. The appellant pay the respondent's costs of the appeal, including the costs of the application pursuant to the Vexatious Proceedings Restriction Act 2004 (WA), on a party and party basis, to be taxed if not agreed.
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