Michael Mischin MLC, Attorney General for Western Australia v Tey
[2015] WASC 146
•4 MAY 2015
MICHAEL MISCHIN MLC, ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- TEY [2015] WASC 146
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 146 | |
| Case No: | CIV:2528/2013 | 2 & 3 JULY, 6 AUGUST 2014 | |
| Coram: | LE MIERE J | 4/05/15 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Defendant is a vexatious litigant | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL MISCHIN MLC, ATTORNEY GENERAL FOR WESTERN AUSTRALIA KOK YONG TEY |
Catchwords: | Vexatious litigant Turns on own facts |
Legislation: | Magistrates Court Act 2004 (WA) Magistrates Court (Civil Proceedings) Act 2004 (WA) Vexatious Proceedings Restriction Act 2002 (WA) |
Case References: | Attorney-General for the State of Victoria v Weston [2004] VSC 314 Attorney-General v Collier [2001] NZAR 137 Horvath v Commonwealth Bank of Australia [1999] FCA 504 Kay v Attorney-General [2000] 2 VR 436 Official Trustee in Bankruptcy v Gargan [No 2] [2009] FCA 398 Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248 Re Mr P G Cockram; Ex Parte Tey [2013] WASCA 104 Re Mr R H Bromfield; Ex parte Tey [2012] WASC 303 Seidler v University of New South Wales [No 3] [2011] FCA 1330 Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 Tey v Optima Financial Group Pty Ltd [2010] WADC 98 Tey v Optima Financial Group Pty Ltd [2010] WASCA 219 Tey v Optima Financial Group Pty Ltd [2011] HCASL 41 Tey v Optima Financial Group Pty Ltd [2012] WADC 20 Tey v Optima Financial Group Pty Ltd [2012] WASCA 193 Tey v Optima Financial Group Pty Ltd [2012] WASCA 68 Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19 Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3 Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113 Tey v Plotz [2010] WASC 163 Tey v Plotz [2011] WASCA 194 Tey v Plotz [No 2] [2011] WASC 34 The Lord Advocate v Andrew McNamara [2009] CSIH 45 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
KOK YONG TEY
Defendant
Catchwords:
Vexatious litigant - Turns on own facts
Legislation:
Magistrates Court Act 2004 (WA)
Magistrates Court (Civil Proceedings) Act 2004 (WA)
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Defendant is a vexatious litigant
Category: B
Representation:
Counsel:
Plaintiff : Mr A J Sefton
Defendant : In person
Solicitors:
Plaintiff : State Solicitor for Western Australia
Defendant : In person
Case(s) referred to in judgment(s):
Attorney-General for the State of Victoria v Weston [2004] VSC 314
Attorney-General v Collier [2001] NZAR 137
Horvath v Commonwealth Bank of Australia [1999] FCA 504
Kay v Attorney-General [2000] 2 VR 436
Official Trustee in Bankruptcy v Gargan [No 2] [2009] FCA 398
Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248
Re Mr P G Cockram; Ex Parte Tey [2013] WASCA 104
Re Mr R H Bromfield; Ex parte Tey [2012] WASC 303
Seidler v University of New South Wales [No 3] [2011] FCA 1330
Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199
Tey v Optima Financial Group Pty Ltd [2010] WADC 98
Tey v Optima Financial Group Pty Ltd [2010] WASCA 219
Tey v Optima Financial Group Pty Ltd [2011] HCASL 41
Tey v Optima Financial Group Pty Ltd [2012] WADC 20
Tey v Optima Financial Group Pty Ltd [2012] WASCA 193
Tey v Optima Financial Group Pty Ltd [2012] WASCA 68
Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3
Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113
Tey v Plotz [2010] WASC 163
Tey v Plotz [2011] WASCA 194
Tey v Plotz [No 2] [2011] WASC 34
The Lord Advocate v Andrew McNamara [2009] CSIH 45
1 LE MIERE J: The Attorney General has applied for an order pursuant to Vexatious Proceedings Restriction Act 2002 (WA) s 4 prohibiting the respondent, Mrs Kok Yong Tey, from instituting proceedings without the leave of the court or tribunal, as the case requires under s 6(1) of the Act. The Attorney General says that the respondent has instituted or conducted vexatious proceedings and it is likely that she will institute or conduct vexatious proceedings in the future. Throughout these proceedings counsel and solicitors for the Attorney General have referred to the respondent as Mrs Tey. I will do the same.
The Act
2 The words 'institute proceedings', 'proceedings' and 'vexatious proceedings' are defined in s 3 of the Act. 'Proceedings' are widely defined and include all legal actions and matters including interlocutory proceedings and appeals. 'Vexatious proceedings' are proceedings which are either an abuse of the process of a court or tribunal, instituted to harass or annoy or cause delay, instituted or pursued without reasonable ground or conducted in a manner so as to harass or annoy, cause delay or detriment or achieve any other wrongful purpose. Proceedings instituted or pursued without reasonable ground may be vexatious regardless of the subjective intention, motive or state of mind of the litigant.
3 Section 4 of the Act sets out how and when a court may make an order restricting persons from instituting proceedings. The court must be satisfied that the person has or is likely to institute or conduct vexatious proceedings. If it is satisfied then the court may prohibit that person from instituting any proceedings without the leave of the court or tribunal in which the proceedings are sought to be instituted.
4 In order to determine whether I should make any order it is necessary first to determine whether I am satisfied that the respondent has instituted or conducted vexatious proceedings or is likely to institute or conduct vexatious proceedings. If I am satisfied of those matters it will then be necessary to exercise my discretion whether to make the order sought by the Attorney General.
The Attorney General's case
5 The Attorney General adduced in evidence an affidavit of Hayley Richardson, a solicitor in the employ of the State Solicitor's Office, affirmed on 9 October 2013 together with annexures HR1 to HR191. On reviewing her affidavit Ms Richardson identified various typographical, referencing and other minor errors which she corrected in a marked up copy of her affidavit of 9 October 2013 which she verified in a supplementary affidavit affirmed on 1 July 2014. Ms Richardson's affidavit of 9 October 2013 as corrected is annexure HR1 to her supplementary affidavit. I will refer to Ms Richardson's affidavit of 9 October 2013, as amended by annexure HR1 to her supplementary affidavit, as Ms Richardson's affidavit.
6 In her affidavit Ms Richardson refers to five groups of proceedings brought by the respondent since 2007. Ms Richardson describes the groups as proceedings against:
• Optima Financial Group Pty Ltd.
• Martin Daniel Plotz.
• Michael Francis Carpenter.
• Joshua Richard Lewis; and
• City of Gosnells.
7 Ms Richardson adduced evidence of those proceedings by producing copies of relevant court documents and transcripts relating to the respective proceedings.
8 Counsel for the Attorney General, Mr Sefton, submitted that the evidence adduced by the Attorney General establishes that Mrs Tey has instituted or conducted vexatious proceedings and if not restrained is likely to institute or conduct vexatious proceedings in the future. Mr Sefton submitted that it was appropriate that the court exercise its discretion to make an order restraining Mrs Tey from instituting proceedings without the leave of the court or tribunal in which she seeks to institute proceedings.
Respondent's case
9 The respondent, Mrs Tey represented herself. It is apparent that she has acquired some familiarity with court processes from the many proceedings in which she has been a party. Nevertheless, in conducting her case Mrs Tey demonstrated a lack of understanding and familiarity with court procedure, rules of evidence and legal process. In the exercise of my discretion I made procedural accommodations to give Mrs Tey an opportunity to have her case fairly heard.
10 Mrs Tey cross-examined Ms Richardson. Much of the cross-examination was irrelevant and repetitive. On many occasions Mrs Tey asked Ms Richardson questions to illicit information or documents that were contained in or attached to Ms Richardson's affidavit.
11 Mrs Tey produced numerous affidavits and exhibits. It appeared to me at the time they were adduced that many of those affidavits and documents are not relevant to any matter in issue in these proceedings. I received them in evidence and subsequently reviewed them to ensure that Mrs Tey had a fair and proper opportunity to meet the case presented by the Attorney General and advance her own case. After the hearing had concluded I reviewed the affidavits and documents adduced by Mrs Tey. That review confirmed that many of them are irrelevant to any matter in issue in these proceedings. I will not unnecessarily prolong these reasons by referring to those affidavits and documents.
Abuse of process
12 The concept of an abuse of process is a broad one and the circumstances in which the court will conclude that a proceeding, or a step in a proceeding, is an abuse of process are extremely varied. The categories of abuse of process are not closed.
13 Continual attempts by a person to re-litigate matters already determined against them on a number of occasions in the court or in other courts constitutes an abuse of process: Horvath v Commonwealth Bank of Australia [1999] FCA 504 [98] - [105]. In Seidler v University of New South Wales [No 3] [2011] FCA 1330 at [1] Perram J said that proceedings commenced by the applicant were an abuse of process because their subject matter had already been dealt with and rejected in earlier proceedings and the orders had not been disturbed on appeal.
Lack of reasonable ground
14 The ways in which proceedings may be instituted or pursued without reasonable ground are myriad. In Official Trustee in Bankruptcy v Gargan [No 2] [2009] FCA 398 Perram J set out a number of principles concerning what makes a proceeding vexatious. The fifth principle is:
… whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding's legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless [6].
Court must be satisfied person has instituted vexatious proceedings
15 In considering whether it is satisfied that the defendant has instituted or conducted vexatious proceedings the court may have regard to the reasons given, orders made and other observations made by the court in those proceedings. In Kay v Attorney-General [2000] 2 VR 436 the Court of Appeal of Victoria dismissed an application for leave to appeal from the order of Eames J under s 21(2) of the Supreme Court Act 1986 (Vic) declaring the applicant to be a vexatious litigant. The order was made after the applicant had commenced numerous unsuccessful proceedings and appeals repeatedly challenging the validity of an intervention order made against him by the Magistrates Court pursuant to the Crimes (Family Violence) Act 1987 (Vic) and numerous related civil proceedings. In dismissing the application Ormiston JA after agreeing with Chernov JA that the application should be dismissed added:
I would not wish it to be thought that, in every application of this kind under s 21 of the Supreme Court Act 1986, it was necessary to re-examine the circumstances of each proceeding upon which the Attorney-General might seek to rely to support the making of an order. If the proceedings relied upon are frivolous, vexatious or otherwise of a kind which would support the making of the order, then that ordinarily should be apparent upon a reading of the reasons and orders and, if it is not, there will be usually no sensible basis for relying upon them, except to the extent that they may form part of a relevant chain of events. The learned judge, primarily I would gather from a sense of fairness and in an attempt to discover why the applicant said that the order should not be made, went somewhat further into the reasons for the various orders, the circumstances that lay behind them and what may now be thought to be the applicant's unreasonable attacks upon them. On other occasions, therefore,examination in such detail may properly be seen to be unnecessary, for the procedure is not to be treated as the opportunity for a second line of appeal against judgments or orders upon which reliance is placed for the making of an order under s 21 [1].
16 Similarly, in Attorney-General for the State of Victoria v Weston [2004] VSC 314 at [18] Whelan J said that the reasons given and other observations made by a court upon the substantive determination of the proceeding may reveal vexatiousness as may a successful strike out application.
17 In Attorney-General v Collier [2001] NZAR 137 the New Zealand High Court said:
The fact that a plaintiff fails in litigation does not demonstrate that the proceedings are vexatious, it is necessary to examine the reasons given in the judgment to determine whether the proceedings are properly to be characterised in that way. Although in many cases it may not be possible to decide whether litigation is wholly without merit until it is determined, a successful strike out application by the defendant, at least where not based upon technical points [such as Limitation Act defences or error in the form of proceedings not known to the plaintiff] may be reliable evidence in the circumstances of vexatiousness [40].
18 In The Lord Advocate v Andrew McNamara [2009] CSIH 45, SC 598, the Lord Advocate applied to the Inner House of the Court of Session of Scotland for an order under the Vexatious Actions (Scotland) Act 1898 that no legal proceedings shall be instituted by the respondent without leave of a judge. The application was based on the respondent's involvement in four legal actions. In delivering the opinion of the Inner House Lord Reed said:
We agree that there can be no question, on an application under the 1898 Act, of re-litigating the merits of earlier proceedings which have already been the subject of adjudication (cf Attorney-General v Jones at page 863). The court can find that proceedings were instituted without any reasonable ground on the basis of opinions expressed by the judges in the cases in question which warrant that conclusion. Even in the absence of such expressions of opinion, that conclusion may be warranted by the surrounding circumstances. We have to express our reservations, however, as to whether proceedings can be treated as having been instituted without any reasonable ground 'simply upon the basis that those proceedings failed, or were abandoned'. As Roden J commented in Attorney-General v Wentworth at page 498:
'It would be an unhappy situation indeed, if one could only argue a unique, doubtful or "unlikely" proposition of law, at risk of being declared vexatious.'
19 I will first consider whether Mrs Tey has instituted or conducted vexatious proceedings. I will do so by considering the five groups of proceedings referred to by Ms Richardson in her affidavit. I will then consider whether the respondent is likely to institute or conduct vexatious proceedings if not restrained from doing so by an order of this court. I will then consider, in the exercise of my discretion, whether to make the order sought by the Attorney General in his originating motion or some other order.
Proceedings against Optima Financial Group Pty Ltd
20 Optima Financial Group Pty Ltd (Optima) commenced proceedings against Mrs Tey in the Perth Magistrates Court on 25 August 2008. Optima carries on business providing accounting and business advice services under the name Optima Partners. Mrs Tey was trading as Skyland Travel Service. Optima claimed from Mrs Tey $550 as unpaid fees for accounting services provided by Optima at the request of Mrs Tey together with interest.
21 This proceeding was not instituted by Mrs Tey. However, it was the genesis of numerous appeals and interlocutory proceedings which were brought by Mrs Tey. I will first outline the outcome of the proceedings in the Magistrates Court and then consider Mrs Tey's appeals to the District Court, and the Court of Appeal, her application for special leave to appeal to the High Court and her application to this court for a review order to set aside the Magistrates Court judgment. I will then consider the interlocutory proceedings and interlocutory appeals instituted by Mrs Tey in the course of those appeals.
Magistrates Court proceeding
22 The matter went to trial on 18 June 2009 before Magistrate Cockram. The magistrate found that Optima was entitled to judgment against Mrs Tey in the sum of $550 together with interest from 11 October 2006 to the date of judgment at 6% per annum. The magistrate ordered Mrs Tey to pay Optima's costs fixed in the amount of $368.05.
23 The magistrate's reasons for decision include the following. It was common ground that Mr O'Brien, a director and shareholder of Optima, met with Mrs Tey and at that meeting it was agreed that, for a fee of $550, the financial statements of Skyland would be audited for the financial year ending 30 June 2006. As a result, a number of documents were prepared on Mrs Tey's behalf and were subsequently lodged with the Travel Compensation Fund. Mrs Tey denied her liability to pay the fee of $550 on a number of grounds. Primarily, she claimed her contract was with Mr O'Brien and not Optima. The magistrate found that Mr O'Brien was an undisclosed agent for Optima and Optima was entitled to sue for the recovery of the outstanding fee as an undisclosed principal. The magistrate rejected other defences put forward by Mrs Tey.
Appeal to District Court
24 On 20 July 2009 Mrs Tey filed a notice of appeal in the District Court claiming that the orders made by the magistrate be set aside. There were various interlocutory proceedings to which I will refer later in these reasons. Optima applied to strike out the appeal under Magistrates Courts (Civil Proceedings) Act 2004 (WA) (MCCP Act) s 43(3) which provides that the appeal court may strike out an 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 and under s 43(4) which provides that the appeal court may strike out any ground of appeal if there is no reasonable basis for it, it does not have a reasonable prospect of succeeding, no miscarriage of justice would occur by striking it out or if it is frivolous, vexatious or improper. Optima's application was heard by Davis DCJ on 2 June 2010. During the hearing Mrs Tey confirmed that the principal issue raised in the defence of Optima's claim was that Mrs Tey's agreement was with Mr O'Brien not Optima. Davis DCJ gave Mrs Tey leave to file and serve a minute of proposed amended grounds of appeal which she did on 11 June 2010. On 25 June 2010 Davis DCJ delivered reasons for deciding that Mrs Tey's appeal should be dismissed pursuant to MCCP Act s 43(6): Tey v Optima Financial Group Pty Ltd [2010] WADC 98. Davis DCJ found that Mrs Tey's appeal should be struck out on the ground that the likely costs of the appeal would be disproportionate to both the amount of the claim and the nature of the case which is the subject of the appeal. Although it was not necessary to do so, Davis DCJ considered whether the grounds of appeal disclosed any reasonable basis for appeal or had any reasonable prospect of succeeding. In deciding that they did not her Honour stated:
I consider that the original appeal grounds set out in the notice of appeal should be struck out. I have not set them out in full in these reasons, but they do not address the merits of the decision by the Magistrate, provide no detail at all as to how it is said that the Magistrate erred either in law or fact and are, in my view, misconceived and improper. The first ground of appeal refers to the fact that the Magistrate had not established 'beyond reasonable doubt' that the claimant had a right of claim, which is not the civil standard. The second ground asserts that it 'was arguable' that all the affidavits and all facts relevant to the claim 'was insufficient to support the case in favour of the claimant'. Both the first and second grounds refer to 'all the materials in the court file' when the only relevant evidence is that produced at the trial on 18 June 2009. In a similar vein the third ground refers to the Magistrate controlling documents which were to be admitted by exhibits at the trial 'when all documents lodged and filed to date … should all be included and considered as evidence'. The final ground reserves the right to add to or amend the grounds of appeal. In my view, none of these grounds of appeal disclose any reasonable basis for appeal, nor have any reasonable prospect of succeeding. Accordingly all of the grounds should be struck out … [18].
- Davis DCJ went on to consider Mrs Tey's minute of proposed amended grounds. Her Honour concluded that none of the grounds of appeal, either existing or proposed, had any reasonable basis or any reasonable prospect of succeeding. Her Honour decided that, in light of her findings that Mrs Tey's appeal should be struck out pursuant to MCCP Act s 43(3), that all of Mrs Tey's appeal grounds should be struck out pursuant to MCCP Act s 43(4) and she should not have leave to amend, it was appropriate that she dismiss the appeal pursuant to MCCP Act s 43(6) without a full hearing of the appeal.
25 I have considered the magistrate's reasons for decision, Ms Tey's grounds of appeal and proposed amended grounds of appeal and the reasons for decision of Davis DCJ. With respect, I agree with Davis DCJ that none of Mrs Tey's grounds, or proposed grounds, of appeal disclose any reasonable basis for appeal nor have any reasonable prospect of succeeding.
Appeal to Supreme Court
26 On 15 July 2010 Mrs Tey appealed to the Court of Appeal against the decision of Davis DCJ. Optima applied to dismiss the appeal under MCCP Act s 43(3) on the ground that the costs of the appeal were disproportionate to both the amount of the claim and the nature of the case.
27 On 11 August 2010, that is after she had instituted her appeal to the Court of Appeal, Mrs Tey received a letter of advice from a barrister, Mr Ludlow. Mr Ludlow stated that, as he had previously explained to Mrs Tey, he considered she had an arguable case that the magistrate and the District Court Judge erred in concluding that Mr O'Brien had contracted with Mrs Tey as agent for Optima as his undisclosed principal. Mr Ludlow said that he further considered it was arguable that the District Court Judge was wrong in concluding that the issue was not important enough to justify letting her proceed with the District Court appeal. Mr Ludlow said that he considered the issue was worth pursuing.
28 On 22 September 2010 Mrs Tey filed a minute of proposed grounds of appeal in response to Optima's application to have the appeal struck out. On 24 September 2010 Newnes and Murphy JJA heard Optima's application to strike out the appeal. Mrs Tey was represented by Mr Ludlow.
29 On 12 November 2010 the Court of Appeal struck out the appeal and delivered reasons for decision: Tey v Optima Financial Group Pty Ltd [2010] WASCA 219. The argument presented on behalf of Mrs Tey appears from the judgment of Newnes JA, with whom Murphy JA agreed. Mrs Tey's counsel accepted that an appeal may be struck out under MCCP s 43(3) either because the costs of the appeal were disproportionate to the amount of the claim or because they were disproportionate to the nature of the case but submitted that the discretion under the former limb would not ordinarily be exercised unless the latter limb was also made out. Counsel submitted that the primary judge had erred in concluding that the nature of the case was a simple one and therefore that both limbs of s 43(3) had been enlivened. Counsel argued that if the second limb was not enlivened that was a relevant factor which favoured the rejection of the respondent's application under the first limb. As the primary judge had erred in concluding that the second limb had been enlivened, the exercise of her Honour's discretion had miscarried. In support of that proposition counsel argued that the proceedings in the Magistrates Court had raised an important issue of principle. It was submitted that the respondent had relied upon 'the controversial and relatively uncertain principle' that a person may contract as an agent for an undisclosed principal giving rise to an enforceable contract between the third party and the undisclosed principal. Counsel referred to the decision of the Privy Council in Siu Yin Kwan v Eastern Insurance Co Ltd [1994] 2 AC 199 for a discussion of the principle. Newnes JA dismissed the argument that the principle that a person may contract as an agent for an undisclosed principal giving rise to an enforceable contract was controversial and relatively uncertain with the observation that in applying the principle in Siu Yin Kwan the Privy Council noted that its main features had been settled law since at least the end of the 18th century. Newnes JA also observed that the principle has been accepted as the law in the standard text books and in numerous decisions in Australia including decisions of the High Court. Newnes JA also referred to the argument by counsel for Mrs Tey that the proceedings in the Magistrates Court raised a complex and uncertain question as to whether Mr O'Brien could contract as an agent for undisclosed principal in circumstances where Mr O'Brien had to sign the audit certificate in person and that this raised a novel and potentially important question of law which was at least fairly arguable. Newnes JA said that counsel had not contended that the contract was made with Mr O'Brien for reasons personal to him which excluded the application of the principle but rather it was submitted that as Mr O'Brien had to sign the audit certificate the respondent could not contract with the appellant. Newnes JA said of that argument:
Why that should be so was not explained. No reference was made to any requirements of the audit, or to any legislative provisions dealing with it, which preclude a contract with a respondent [24].
- Newnes JA found that the primary judge did not err in concluding that the case was a simple one but it was unnecessary to dwell on that question for two reasons. First, contrary to the appellant's submissions in considering whether an appeal should be struck out on the first limb, it is unnecessary for the court to consider whether the second limb is also made out. Secondly, in the exercise of its discretion the court is not required to consider the merits of the decision below. Newnes JA found that the likely costs of the appeal are so clearly disproportionate to the amount of the claim as to require no further comment. His Honour further observed that nothing had been put before the court which could conceivably provide any justification for the appeal to proceed and the case seems to be a quintessential example of the type of case at which s 43(3) is aimed.
Application for special leave to appeal to High Court
30 Mrs Tey applied for special leave to appeal to the High Court from the decision of Newnes and Murphy JJA. In her application for special leave to appeal Mrs Tey complained that the Court of Appeal had failed to find that the case raised a significant question of law and failed to give weight or sufficient weight to a number of factors. On 5 April 2011 French CJ and Crennan J dismissed Mrs Tey's application for special leave to appeal: Tey v Optima Financial Group Pty Ltd [2011] HCASL 41. In disposing of the application their Honours said that none of the matters raised on the application disclosed a case fit for the grant of special leave.
31 Prior to filing her application for special leave to appeal to the High Court Mrs Tey obtained written advice from Mr Ludlow that she had reasonable prospects of satisfying the High Court to grant her special leave on two issues. The first is that the Court of Appeal did not fully or correctly understand the 'undisclosed principal' issue Mrs Tey raised in that court. The argument is that Mr O'Brien had to sign the audit certificate in his own name and thereby accept personal responsibility for the audit and accordingly he could only contract with Mrs Tey on his own behalf and not as agent for an undisclosed principal that happened to be a company. The second is that the Court of Appeal erred in holding that once the jurisdiction to strike out her appeal was enlivened on the basis that the likely costs of the appeal would be disproportionate to the amount of the claim in the case which was the subject of the appeal the court had unfettered discretion to strike out the appeal. Mr Ludlow advised that the court should have held that the discretion was controlled by a number of factors. I am not persuaded that the issues referred to by Mr Ludlow gave rise to any reasonable ground for applying for special leave to appeal.
Application to Supreme Court for review order
32 On 26 March 2012 Mrs Tey filed an originating motion in this court seeking a review order under Magistrates Court Act 2004 (WA) (MCA) s 36 of the decision of Magistrate Cockram on 2 July 2009. Mrs Tey 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. Mrs Tey filed submissions and an affidavit in support of her appeal prior to the hearing. On 4 July 2012 McKechnie J dismissed the motion: Re Mr P G Cockram; Ex Parte Tey [2012] WASC 248. In his reasons for decision McKechnie J observed that while framed as an application for review, the grounds of the originating motion were in reality an attempt to circumvent the decision already made by the Court of Appeal. McKechnie J refused the application for review on the discretionary grounds that the length of time between the decision and the application for review had not been explained, the history of the proceedings including the decisions of the District Court and Court of Appeal that the appeal be dismissed on the basis that there were no reasonable prospects of success and the disproportion as to costs compared with the subject matter and because the likely cost to any respondent to the application if a review was made. In addition to refusing to make an order on discretionary grounds his Honour stated he would also decline to make a review order under the inherent power of the court to prevent its processes being used vexatiously and oppressively. His Honour observed:
It is an improper purpose to bring collateral proceedings in an attempt to circumvent a decision, especially one made after an appeal.
There must be a finality to litigation. These proceedings are an abuse of the processes of the court [8] - [9].
Appeal to court of appeal against dismissal of application for review order
33 Mrs Tey appealed to the Court of Appeal against the decision of McKechnie J to dismiss her application for a review order. On 17 April 2013 Pullin and Murphy JJA dismissed Mrs Tey's appeal: Re Mr P G Cockram; Ex Parte Tey [2013] WASCA 104. In their reasons for decision Pullin and Murphy JJA said that there were eight grounds of appeal but they raised only two points - that the appellant was denied procedural fairness by McKechnie J and that Mrs Tey is aggrieved by the magistrate's decision and should have a rehearing. The allegation of breach of procedural fairness was based on the fact that the matter was listed for a directions hearing before McKechnie J and that Mrs Tey did not know that she would have to make submissions as to why the proceeding should not be dismissed. The Court of Appeal held that Mrs Tey had been denied procedural fairness in that she was not given a fair opportunity to make submissions why her application should not be summarily dismissed. However, the court did not set aside the order of McKechnie J because neither the written submissions nor any oral submissions which Mrs Tey would have made to McKechnie J if she had had the opportunity would have led to the making of any different order. Their Honours said that none of the grounds of appeal has any reasonable prospect of succeeding in the sense that no ground had any prospect of establishing that the order dismissing the proceeding should be set aside.
Application for review order is a vexatious proceeding
34 Mrs Tey's application to the Supreme Court for a review order of the decision of Magistrate Cockram was an abuse of the process of the court and was instituted and pursued without reasonable ground. I agree with McKechnie J that the application was in reality an attempt to circumvent the decision already made by the Court of Appeal which Mrs Tey had unsuccessfully sought to appeal to the High Court.
Appeals against costs orders and enforcement orders
35 Mrs Tey appealed against various costs orders and enforcement orders made in the District Court and in this court.
District Court costs orders
36 Optima filed a bill of costs in respect of Mrs Tey's appeal to the District Court. Mrs Tey filed an application to adjourn the taxation. The application came before Deputy Registrar Hewitt on 5 August 2011. The Deputy Registrar dismissed Mrs Tey's application to adjourn the taxation and the proceeded with the taxation. He allowed the bill at $8,023.19. The Deputy Registrar deferred signing the certificate of taxation until 19 August 2011 to allow for Mrs Tey to file objections. Mrs Tey filed objections. On 24 August 2011 the Deputy Registrar dismissed the objections. In his reasons for decision the Deputy Registrar concluded that the objections were without substance.
37 Mrs Tey applied to the District Court to review the taxation. On 19 January 2012 Commissioner Gething dismissed Mrs Tey's application for review of the taxation and ordered Mrs Tey to pay Optima's costs of the review: Tey v Optima Financial Group Pty Ltd [No 3] [2012] WADC 3. Commissioner Gething found that the Deputy Registrar had not made any error of principle in dealing with Mrs Tey's objections. On 3 February 2012 Commissioner Gething fixed the costs of the review in the sum of $5,332.25 and published reasons for doing so: Tey v Optima Financial Group Pty Ltd [No 2] [2012] WADC 19.
38 By appeal notice dated 9 February 2012 Mrs Tey appealed to the Supreme Court against Commissioner Gething's decision to dismiss her review of the taxation order. On 23 February 2012 Mrs Tey filed a further appeal notice in the Supreme Court against the decision of Commissioner Gething to fix the costs of review in the amount of $5,332.25. On 7 August 2012 Pullin and Newnes JJA heard the appeals against both the dismissal of the review application and the fixing of the costs by Commissioner Gething. On 10 October 2012 their Honours dismissed the appeals: Tey v Optima Financial Group Pty Ltd [2012] WASCA 193. Their Honours found that none of the grounds of appeal in the application for review had any prospect of success. In dismissing the appeal against the Commissioner fixing the costs of the review in the sum of $5,352.25 their Honours found that the grounds of appeal were either irrelevant, incomprehensible or misconceived.
39 On 21 September 2011 Mrs Tey filed a chamber summons in the District Court in which she sought to appeal against the costs order by Davis DCJ on her appeal to the District Court against the decision of the Magistrates Court. Mrs Tey contended that there was an issue as to whether Optima was entitled to both the costs of the appeal and the costs of its application to strike out the appeal. Optima's solicitors wrote to Mrs Tey on 3 October 2011 inviting Mrs Tey to consent to an order dismissing the application for leave to appeal with no order as to costs. The letter stated that Mrs Tey's application for leave to appeal was misconceived because her appeals to the Supreme Court against the orders made by Davis DCJ and her application for special leave to appeal to the High Court had included appeals against the costs order. The solicitors said that if Mrs Tey did not consent to the application being dismissed they would commence work to oppose it and would seek indemnity costs in the event that it was unsuccessful. On 18 October 2011 Optima's solicitors wrote to Mrs Tey extending the time for acceptance of their offer until 21 October 2011. Mrs Tey did not accept the offer. On 2 December 2011 Mrs Tey informed the District Court and Optima's solicitors that she was withdrawing her challenge to the costs order. On 12 January 2012 Mrs Tey filed a notice of discontinuance. On 3 February 2012 Commissioner Gething dealt with the chamber summons filed by Mrs Tey on 21 September 2011: Tey v Optima Financial Group Pty Ltd [2012] WADC 20. The Commissioner ordered that the chamber summons be dismissed and ordered Mrs Tey to pay Optima's costs of the application which he fixed on an indemnity basis in the sum of $12,500. The Commissioner said that the application was without any foundation and was bound to fail. There had already been an appeal against the orders of Judge Davis. The orders under appeal included the costs orders. There is no power in the District Court to extend the time within which to appeal or to allow a second appeal from a decision of a District Court judge.
40 On 23 February 2012 Mrs Tey filed an appeal notice in the Supreme Court against the decision of Commissioner Gething that she pay Optima's costs of the application by chamber summons of 21 September 2011 on an indemnity basis. On 7 August 2012 Pullin and Newnes JJA heard the appeal against the Commissioner's decision. Their Honours concluded that none of the grounds had any prospect of success and ordered that the appeal be dismissed: Tey v Optima Financial Group Pty Ltd [2012] WASCA 193.
41 Mrs Tey's application by chamber summons of 21 September 2011 was misconceived because her appeal to the Supreme Court against the orders made by Davis DCJ included an appeal against the order that she pay the costs of the appeal and the costs of the application to strike out the appeal to the District Court. The application was instituted without reasonable ground.
42 Notwithstanding that Optima's solicitors pointed out to her on 3 October 2011 that the application was misconceived Mrs Tey did not withdraw her application until 2 December 2011 and thereby caused Optima to incur legal costs in preparing to oppose the application. Mrs Tey pursued the application without reasonable ground after Optima's solicitors had pointed out to her that her application was misconceived. The definition of vexatious proceedings in s 3 of the Act includes proceedings which are pursued without reasonable cause. To pursue means to carry on or continue (Online Macquarie Dictionary). An application may be pursued without the applicant taking any active step. By leaving her application before the court for the court to deal with Mrs Tey pursued the application. She did so without reasonable ground.
43 Mrs Tey's subsequent appeal to the Supreme Court against the decision of Commissioner Gething that she pay Optima's costs of the application on an indemnity basis was instituted and pursued without reasonable ground. It was a vexatious proceeding.
44 Optima filed a bill of costs in the sum of $7,264.50 in respect of Mrs Tey's appeal to the Supreme Court from the decision of Davis DCJ. An appointment for the taxation of the bill of costs was set down for 8 August 2011. Mrs Tey applied by letter for the taxation to be adjourned. The application was refused. On 8 August 2011 the bill was taxed and allowed in the sum of $7,012.02. Mrs Tey did not attend the taxation. On 9 August 2011 Mrs Tey wrote to the court requesting that the taxation be set aside. On 7 December 2011 Mrs Tey was informed that the taxing officer had reviewed the taxation but found no error of principle and accordingly the allocatur would not be set aside. Mrs Tey filed a chamber summons in the Supreme Court on 12 December 2011 for an extension of time to apply to set aside the allocatur and for the allocatur to be set aside. The application came before Heenan J on 23 February 2012. Mrs Tey sought an adjournment on the ground that she had been unable to obtain legal representation by a counsel of her choice, a specialist in court taxations. His Honour dismissed the application: Tey v Optima Financial Group Pty Ltd [2012] WASCA 68. His Honour said that Mrs Tey had had ample notice of the application and hence ample opportunity to obtain legal representation and therefore the absence of the particular counsel was not a matter which should prevent the application being heard and determined that day. His Honour further said that there is nothing to suggest that the application had any merit or any prospects of success even if the most experienced counsel that one could imagine were to be present.
45 On 22 October 2012 Optima filed a bill of costs in relation to the appeals.
Property seizure orders
46 On 19 January 2012 a property seizure order (PSSO) was issued by the court on behalf of Optima pursuant to the Civil Judgments Enforcement Act 2004 (WA) (CJEA). On 7 March 2012 two property seizure and sale orders (PSSOs) were issued on behalf of Optima pursuant to the CJEA. One was in respect of the costs of the appeal to the District Court from the judgment of the Magistrates Court and the other was in respect of the costs of the applications before Commissioner Gething in the District Court on 3 February 2012. Subsequently a third PSSO was issued in respect of the costs of the appeal to this court.
47 On 28 April 2012 Mrs Tey applied to the District Court for a stay of the two PSSOs issued on 7 March 2012 pending the determination of both the appeals against the orders of Commissioner Gething and an application which Mrs Tey filed in this court on 24 April 2012 for a review order seeking to quash the decision of Magistrate Cockram. On 27 April 2012 Commissioner Gething dismissed the application for a stay. He treated it as an application for a suspension order under CJE Act s 15. The Commissioner found that there were no special circumstances which would justify a suspension order. Mrs Tey then applied to this court seeking orders suspending the enforcement of the costs orders made in the District Court. Mrs Tey then applied to this court seeking orders suspending the enforcement of the cost orders made in the District Court. The application was heard by Justices Pullin and Newnes and dismissed on 18 May 2012: Tey v Optima Financial Group Pty Ltd [No 3] [2012] WASCA 113. In their reasons for decision their Honours made the following statements:
The appellant has now brought an application in this court seeking orders suspending the enforcement of the costs orders made in the District Court. The application is presumably brought pursuant to s 15 of the Civil Judgments Enforcement Act. It is supported by an affidavit of the appellant. In that affidavit the appellant briefly describes how she came to learn of the existence of the PSSOs and mentions her application for a suspension order in the District Court. She says that execution pursuant to the PSSOs would lead to the sale of her home and that unless a suspension order is made the appeals currently before this court will be defeated, as will the proceedings she has commenced under s 36 of the Act. The appellant asserts that the respondent was not entitled to the judgments he has obtained.
There is no explanation as to why the application has been brought in this court, following the dismissal of what appears to be in all essential respects an identical application to the District Court. The current application would appear to be an abuse of process. However, it is unnecessary to dwell on that. The application can be disposed of on the merits quite shortly [26] - [27].
- and
The application is without merit and should be dismissed.
The appellant has also brought an application for an order suspending the enforcement of the order for costs of $7,012.02 made in respect of the appeal to this court in CACV 78 of 2010. The application was filed in the proceedings before EM Heenan J but was made returnable before this court. In the supporting affidavit, the appellant says that the respondent was not entitled to the costs of the appeal. The appellant again refers to the proceedings she has recently commenced under s 36 of the Act to quash the decision of Magistrate Cockram.
Again, no basis has been shown for a suspension order. The application was without merit and should be dismissed [30] - [32].
Proceedings against Martin Daniel Plotz
49 On 20 November 2009 Mrs Tey was convicted, after a trial in the Magistrates Court at Perth before Magistrate Lane, of failing to comply with a request to give police her personal details. Mrs Tey was fined $500 and ordered to pay costs of $271.
50 Mrs Tey appealed to this court against her conviction and sentence. In her notices of appeal Mrs Tey named 'WA Police' as the respondent. The State Solicitor's Office on behalf of the respondent filed notices of Respondent's Intention, indicating that the issuing officer, Martin Daniel Plotz, should be named as the respondent instead. At a directions hearing on 3 May 2010 Mrs Tey took issue with the form of the Notices of Respondent's Intention and submitted that the proper respondent to the appeals was the WA Police. Counsel for the respondent conceded, and Jenkins J subsequently made orders that the respondent file amended Notices of Intention naming WA Police as the respondent. On 7 May 2010 the State Solicitor's Office filed an application on behalf of the respondent seeking orders that the interim order made by Jenkins J be recalled and that the title of the appeals be amended to name Martin Daniel Plotz as the respondent (the Recall Application). By letter dated 20 May 2012 Mrs Tey advised that she did not wish to be heard on the Recall Application but did not consent to it. On 30 June 2010 Jenkins J made a provisional decision allowing the Recall Application and ordered that Martin Daniel Plotz be named as the proper respondent in the appeals. On 8 July 2010 Mrs Tey filed a Request for Hearing Form requesting a hearing of the matter decided provisionally by Jenkins J on 30 June 2010. On 3 September 2010 counsel for Mrs Tey, Mr Ludlow, filed a minute of proposed substituted grounds of appeal against conviction. On the same date Mr Ludlow filed an outline of submissions of Mrs Tey's opposition to the provisional decision of Jenkins J. Mrs Tey's appeals against her conviction and sentence and her request for a hearing of the provisional decision were heard by Jenkins J on 17 October 2010. On 16 February 2011 Jenkins J dismissed the appeals against conviction and sentence and confirmed the provisional decision.
51 On 9 March 2011 Mrs Tey appealed to the Court of Appeal against the decision of Jenkins J to dismiss her appeals against conviction and sentence and to confirm the provisional decision. On 19 September 2011 the Court of Appeal refused leave in respect of both the conviction and sentence and the appeals were dismissed. In his reasons for decision Buss JA, with whom McLure P and Mazza J agreed, stated that none of the proposed grounds of appeal relied on by the appellant in each of the appeals had a reasonable prospect of success. I have considered the transcript of proceedings before the magistrate on 20 November 2009 and 18 March 2010, Mrs Tey's appeal notice, the transcript of proceedings before Jenkins J on 3 May 2010, the reasons of Jenkins J in Tey v Plotz [2010] WASC 163, Mrs Tey's minute of proposed substituted grounds of appeal in the appeal against conviction, the reasons for decision of Jenkins J in Tey v Plotz [No 2] [2011] WASC 34, Mrs Tey's notice of appeal to the Court of Appeal and draft grounds of appeal, and the reasons for decision of the Court of Appeal in Tey v Plotz [2011] WASCA 194. I find that none of the proposed grounds of appeal relied on by Mrs Tey has a reasonable prospect of success. The appeals were instituted and pursued without reasonable ground.
52 On 19 October 2011 Mrs Tey brought two special leave applications to the High Court. One related to the Court of Appeal's decision regarding conviction and the other to the Court of Appeal's decision regarding sentence. Both applications asserted error in connection with the provisional decision. On 15 August 2012 Gummow and Kiefel JJ refused to grant Mrs Tey special leave to appeal. Their Honours said there was no reason to doubt the correctness of the Court of Appeal's decision.
53 On 5 October 2011 the respondent filed a bill of costs for taxation. On 20 October 2011 Mrs Tey wrote to the court requesting that the taxation of costs be stayed pending the resolution of the application for special leave to appeal to the High Court. By letter of 3 November 2011 the associate to Registrar Boyle informed Mrs Tey that an appeal does not itself act as a stay and in the absence of a stay order the bills would be taxed. On 19 December 2011 Mrs Tey filed a chamber summons in respect of both appeals, seeking orders that the costs orders by Jenkins J be stayed and that the taxation of costs also be stayed. On 12 January 2012 Hall J dismissed the application for stay orders. In his reasons for decision Hall J considered whether he had the jurisdiction to make orders of the type sought. His Honour considered that the Criminal Appeals Act 2004 (WA) did not give him power to make the orders sought, there was no basis for making an order in the exercise of the court's inherent power to prevent an abuse of process and there was no power to make an order under s 15 of the CJE Act because there was no enforceable judgment until the costs had been taxed and they had not yet been taxed. His Honour dismissed the applications because he did not have the power to make the orders sought. His Honour added that even if it were open to make a stay or suspension order the evidence presented by Mrs Tey did not provide any proper basis for staying or suspending the costs orders. In my view Mrs Tey's applications were brought without reasonable ground. They were a vexatious proceeding.
Proceedings against Michael Francis Carpenter
54 On 27 January 2011 Mrs Tey was convicted in the Magistrates Court before Magistrate Lawrence of driving a motor vehicle whilst not authorised contrary to Road Traffic Act (WA) s 49(1)(a). She was fined $100 and ordered to pay costs of $119.20. On 24 February 2011 Mrs Tey appealed against her conviction and sentence to this court. On 29 September 2011 Mazza J refused leave to appeal and dismissed the appeal. In his reasons for decision Mazza J found that each of the proposed grounds of appeal had no reasonable prospect of success. Mrs Tey appealed against the decision of Mazza J to the Court of Appeal. Mrs Tey sought an extension of time to file her appellant's case and an order that the respondent provide disclosure of certain information. On 10 April 2012 the Court of Appeal dismissed Mrs Tey's application for an extension of time to file the appellant's case and for an order that the respondent provide disclosure of certain information. Buss JA, with whom McLure P agreed, held that Mrs Tey's proposed grounds of appeal had no reasonable prospect of success. The court ordered that on 26 April 2012 the court would hear from the parties as to whether the appeal should be dismissed under r 43(2)(g) of the Supreme Court (Court of Appeal) Rules. On 26 April 2012 the court heard from Mrs Tey and counsel for the respondent. At the hearing Mrs Tey sought leave to amend her appeal notice to add numerous additional grounds of appeal. At the conclusion of the hearing the court dismissed the appeal. In his reasons for decision of 6 June 2012 Buss JA, with whom McLure P agreed, said that some of Mrs Tey's proposed new grounds of appeal were barely coherent and most of them were not, either in form or in substance, proper grounds of appeal from Mazza J's decision on the conviction appeal. In my opinion the appeal to the Court of Appeal was instituted and pursued without reasonable cause. It was a vexatious proceeding.
55 On 5 October 2012 the State Solicitor's Office, on behalf of the respondent, filed a bill of costs for taxation. On 19 December 2011 Mrs Tey filed a chamber summons seeking orders that the costs orders by Mazza J be stayed until the determination of the matter in the Court of Appeal. As I have said, on 12 January 2012 Hall J dismissed the application for a stay order.
Proceedings against Joshua Richard Lewis
56 On 23 January 2006 Mrs Tey commenced proceedings in the Magistrates Court against her neighbour, Mr Lewis. Mrs Tey claimed damages in relation to a retaining wall along the common boundary of their properties. On 5 February 2007 Mrs Tey entered default judgment against Mr Lewis. On 7 February 2007 the default judgment was set aside on the ground that it had been invalidly entered. On 8 November 2007 Mr Lewis applied for summary judgment. On 20 February 2008 the Magistrates Court entered summary judgment against Mrs Tey and ordered that she pay Mr Lewis' costs of the application and of the action on a solicitor/client basis. On 28 February 2007 Mrs Tey filed an appeal to the District Court against the setting aside of the default judgment. On 6 September 2011 the District Court issued notice to the parties to attend to show cause why the appeal should not be dismissed for want of prosecution. On 9 November 2011 Mrs Tey and Mr Lewis attended before Principal Registrar Gething. The Principal Registrar concluded that the appeal should be dismissed for want of prosecution.
57 On 11 November 2011 Mrs Tey appealed against the decision of the Principal Registrar to a judge of the District Court. On 13 February 2012 Wisbey DCJ dismissed the appeal. Wisbey J dismissed the appeal on the basis that it had not been prosecuted in a timely or proper way. Mrs Tey appealed against that decision to the Court of Appeal. On 21 August 2012 Pullin and Newnes JJA dismissed the appeal. In its reasons for decision the court said that the delay by Mrs Tey in prosecuting the appeal was inordinate and there was no satisfactory explanation for it, that the appeal had been hanging over the respondent's head for more than three and a half years when it was struck out and that the only prejudice to the appellant if the appeal was dismissed was that the action would have to be determined at trial in the usual way. I find that the appeal was commenced without any reasonable ground.
58 On 12 March 2008 Mrs Tey by her solicitor had filed a notice of appeal in the District Court against the decision to award summary judgment in favour of Mr Lewis. On 10 July 2008 Mr Lewis' solicitors filed a chamber summons to dismiss the substantive appeal for want of prosecution together with an affidavit in support. On 23 July 2008 Mrs Tey's solicitor, Mr McPhee, swore an affidavit in opposition to the application to strike out the substantive appeal for want of prosecution. Mr McPhee stated that Mrs Tey had an arguable appeal. On 25 July 2007 Mr Lewis' strike out application was adjourned to 15 August 2008. On 8 August 2008 Mr McPhee filed an application for a declaration that he and his firm had ceased to act for Mrs Tey. The affidavit stated that there was a loss of confidence between solicitor and client and that Mr McPhee had ceased to act for Mrs Tey in relation to the substantive appeal. On 15 August 2008 Mr McPhee's application for a declaration that he and his firm had ceased to act for Mrs Tey and Mr Lewis' application to strike out the substantive appeal for want of prosecution came on for hearing before Registrar Kingsley. The registrar made the orders requested by Mr McPhee. The registrar then heard Mr Lewis' application to strike out the substantive appeal for want of prosecution. Registrar Kingsley dismissed the application to strike out for want of prosecution and listed the substantive appeal for hearing before a judge on 3 November 2008. The registrar ordered Mrs Tey to pay Mr Lewis' costs of the application to strike out for want of prosecution in any event. On 19 August 2008 Mrs Tey filed a notice of appeal against Registrar Kingsley's decision to require her to pay Mr Lewis' costs of the application to strike out her appeal for want of prosecution. On the same day Mrs Tey filed a notice of appeal which challenged Registrar Kingsley's declaration that Mr McPhee and his firm had ceased to act for her. On 19 September 2008 Mr Lewis' solicitors filed an application and affidavit in support seeking to dismiss the costs appeal. On 3 October 2008 programming orders were made by Sweeney DCJ in relation to the hearing of the costs appeal, the hearing of the termination of retainer appeal and Mr Lewis' application to strike out the costs appeal. Sweeney DCJ dismissed an application by Mrs Tey to adjourn the hearing of the substantive appeal.
59 On 31 October 2008 the costs and termination of retainer appeals came before Wisbey DCJ. His Honour ordered that the appeals be dismissed and that Mrs Tey pay the costs of the applications. On 10 November 2008 Mrs Tey filed a notice of appeal in the Court of Appeal against the decision of Wisbey DCJ. On 2 February 2010 Mrs Tey was ordered to file an amended notice of appeal by 12 February 2010. On 11 February 2010 Mrs Tey filed an amended notice of appeal. On 18 May 2010 Newnes JA and Murphy J dismissed Mrs Tey's appeal. In their reasons for decision Newnes JA and Murphy J stated that each ground of appeal would be struck out and the appeal dismissed on the basis that none of the grounds of appeal has a reasonable prospect of succeeding. I find that the appeal was commenced and conducted without reasonable ground. It was a vexatious proceeding.
60 Mrs Tey appealed to the Court of Appeal for leave to appeal against Sweeney DCJ's decision not to grant Mrs Tey an adjournment of the substantive appeal. On 24 October 2008 Pullin JA refused Mrs Tey's appeal. Pullin JA found that Judge Sweeney's decision does not reveal any error and further that Mrs Tey had not demonstrated that to leave Judge Sweeney's decision unreversed would occasion substantial injustice. That was because Mrs Tey was not precluded from making a further application for adjournment, a point which was made by Judge Sweeney at the hearing on 3 October 2008. I find that the appeal was instituted and conducted without reasonable ground. It is a vexatious proceeding.
61 The substantive appeal against the order for summary judgment was ultimately heard on 6 February 2009. Mrs Tey succeeded on the appeal. Groves DCJ set aside the judgment and remitted the matter to the Magistrates Court.
Proceedings against City of Gosnells
62 On 8 September 2009 Mrs Tey applied to the State Administrative Tribunal (SAT) for a review of decisions made by the City relating to a rate notice for the financial year 2009/2010. On 15 September 2009 the executive officer of the SAT wrote to Mrs Tey and advised her that her application had been rejected because there did not appear to have been a decision by the City on the objection she had raised. By letter dated 15 October 2009 Mrs Tey sought a review of the decision to reject her appeal. Her review hearing before Member Spillane was heard on 15 December 2009. On 22 December 2009 Member Spillane affirmed the decision of the executive officer and delivered oral reasons for doing so.
63 On 19 January 2010 Mrs Tey filed an appeal notice in this court purporting to appeal from Member Spillane's decision made on 22 December 2009. On 17 August 2010 Jenkins J dismissed the appeal on the papers. In her reasons her Honour referred to the provisions of the State Administrative Tribunal Act 2004 (WA) and that there was no right of appeal from the decision of the Member and made the provisional decision that leave to appeal was refused and the appeal dismissed. After the making of the provisional decision Mrs Tey filed an application for a hearing of the matter that gave rise to the provisional decision. The application for review was listed for hearing on 25 October 2010. On that date Jenkins J confirmed her provisional decision of 17 August 2010. I find that the appeal was instituted and pursued without reasonable ground.
64 On 1 July 2011 Magistrate Bromfield granted summary judgment to the City of Gosnells against Mrs Tey in respect of a claim by the City to recover from Mrs Tey unpaid rates and taxes in respect of a vacant block within the City. On 22 July 2011 Mrs Tey initiated two separate appeals to the District Court against the decision of Magistrate Bromfield. On 7 September 2011 the City applied under MCCP Act s 43(3) for an order that the appeal be struck out on the grounds that the costs of the appeal were disproportionate to both the amount of the claim and the nature of the case. The appeals were heard by Goetze DCJ on 15 February 2012. His Honour dismissed both appeals and ordered Mrs Tey to pay costs.
65 The City lodged a bill of costs which came before Deputy Registrar Hewitt on 10 April 2012. The Deputy Registrar taxed the bills at $6,461.72. On 24 April 2012 Mrs Tey lodged objections to the taxation by the Deputy Registrar. On 9 May 2012 the Deputy Registrar dismissed the objections. On 22 May 2012 Mrs Tey applied to a judge of the District Court to review the taxation. On 2 July 2012 Mrs Tey filed a notice of discontinuance for application to have the taxation reviewed by a judge.
66 On 18 April 2013 Mrs Tey filed an originating motion in this court seeking a review under MC Act s 36 of the decision of Magistrate Bromfield on 1 July 2011. On 4 July 2012 McKechnie J dismissed the motion in Re Mr R H Bromfield; Ex parte Tey [2012] WASC 303. In his reasons for decision McKechnie J said:
The test for obtaining a review order is that the applicant establishes an arguable case, one with reasonable prospects of success. While I accept that the application is a litigant in person, it remains the fact that there is no evidence whatever that would raise an arguable case to justify a review order. It is not asserted that the magistrate lacked jurisdiction to grant judgment on a general claim and clearly the magistrate had jurisdiction to do so under the [MCCP Act].
There is no evidence that the magistrate will, whether constructively or actually, refuse to exercise jurisdiction.
There is no arguable case that the magistrate has done or failed to do any act which would engaged the powers of the court under the MC Act s 36 [16] - [18].
- McKechnie J said that Mrs Tey believed she was denied procedural fairness because the magistrate did not use the word 'invalid'. The appeal was instituted and pursued without reasonable ground.
Other proceedings brought by Mrs Tey
67 The evidence discloses that Mrs Tey has brought other proceedings. Mrs Tey submitted that she has been successful in other proceedings and in other applications. It is unnecessary to consider those proceedings or applications. The threshold question in this proceeding is whether Mrs Tey has instituted or conducted vexatious proceedings. I have found that Mrs Tey has instituted or conducted vexatious proceedings. That finding is not negated by Mrs Tey having commenced other proceedings which are not vexatious proceedings or indeed having commenced proceedings in which she was successful. The Attorney General does not seek an order staying proceedings which have already been initiated by Mrs Tey. Further, if an order is made as contended for by the Attorney General, Mrs Tey will not be precluded from initiating proceedings in the future. The restriction upon her is that she would have to obtain leave of the relevant court or tribunal before commencing the proceedings.
Where the court should make order under s 4(1)
68 I am satisfied that Mrs Tey has instituted and conducted vexatious proceedings. Accordingly, the court may prohibit Mrs Tey from instituting any proceedings or proceedings of a particular class, without the leave of the court. The court has a discretion whether to make an order and if so, what order to make.
69 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.
70 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.
71 Mrs Tey has persisted in issuing unmeritorious applications relating to or arising out of her dispute with Optima concerning a fee of $550 for accounting or auditing services. If Mrs Tey had only issued unmeritorious applications within that set off proceedings it may be appropriate to make an order restraining her from issuing further applications within or arising out of that set of proceedings without first having obtained the court's permission to do so. However, Mrs Tey has also instituted vexatious proceedings concerning her conviction in the Magistrates Court for failing to comply with a request to give police her personal details, her conviction in the Magistrates Court for driving a motor vehicle whilst not authorised to do so, proceedings against her neighbour in relation to a retaining wall and proceedings in the State Administrative Tribunal concerning decisions made by the City of Gosnells relating to rates. Mrs Tey has demonstrated the hallmarks of persistent vexatious behaviour; she 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. The appropriate order is that Mrs Tey be prohibited from instituting proceedings without the leave of a court or tribunal as the case requires.
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