Michael v The Crown Solicitor - [2004] WASCA 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: MICHAEL -v- THE CROWN SOLICITOR [2004] WASCA 45

CORAM: STEYTLER J
WHEELER J

HEARD: 20 FEBRUARY 2004

DELIVERED : 16 MARCH 2004

FILE NO/S: FUL 156 of 2003

BETWEEN: SHAWKY MICHAEL
Appellant
AND
THE CROWN SOLICITOR
Respondent

Catchwords:

Application for leave to appeal - Interlocutory application - Turns on own facts

Legislation:

Nil

Result:

Application for leave to appeal dismissed
Application for stay dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr A J Sefton

Solicitors:

Appellant: In person
Respondent: State Crown Solicitor

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

Nil

Case(s) also cited:

Nil

JUDGMENT OF THE COURT: This is an application for leave to appeal, and for a stay of an action. It arises in the following way. An application by originating motion has been made by the Hon Attorney‑General against the applicant for leave to appeal in these proceedings, Dr Michael and his wife Mrs Michael, under the Vexatious Proceedings Restriction Act 2002. On 9 April 2003 Justice Barker gave orders that the hearing of the originating motion be before a Judge in Court on a date to be fixed. He also made orders for the filing of affidavits and giving leave for the parties to apply for further directions, including directions as to leave to cross-examine deponents.
On 18 August 2003 the solicitors acting for the Hon Attorney‑General sent a letter to the Court's Listing Officer requesting that the originating motion be listed for hearing. Dr Michael objected to the listing of the matter, on the basis that he had on foot a freedom of information application, which was to be followed by "better particulars, inspection, discovery and interrogatories". He further advised that a counterclaim would soon be filed and served on the Crown Solicitor. On 29 August he filed what is in form a counterclaim. There is no counterclaim against the Hon Attorney-General, the applicant in the Vexatious Proceedings Restriction Act matter, but the counterclaim is against the Crown Solicitor for Western Australia and 10 other defendants and groups of defendants. I will come to the detail of the counterclaim in a moment.
With the parties unable to agree on whether the originating summons should be listed in accordance with the directions of Justice Barker, the listing officer referred the matter to a Judge in Chambers for directions. The matter was listed before E M Heenan J for 30 September. On 24 September there was filed and served by solicitors for the Hon Attorney‑General a minute of proposed orders. That minute is not before us. However, it appears that the solicitors for the Hon Attorney-General were seeking to strike out or dismiss the counterclaim on the basis that it was irregular and an abuse of process. Dr Michael sought directions that the originating motion should not be listed for trial until pleadings in the counterclaim had been exchanged and discovery and interrogatories in the counterclaim completed.
E M…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Michael v The Crown Solicitor

Details

AGLC: Michael v The Crown Solicitor [2004] WASCA 45
Case: [2004] WASCA 45
Decision Date: 16 MARCH 2004

CaseChat Overview and Summary

The case involves an application by Dr Michael for leave to appeal and a stay of an action against him and his wife, Mrs Michael, brought by the Hon Attorney-General under the Vexatious Proceedings Restriction Act 2002. The application was heard by E M Heenan J, who made orders that the counterclaim brought by Dr Michael be severed and stayed, pending the hearing and determination of the originating motion. The Hon Attorney-General sought to strike out or dismiss the counterclaim on the basis that it was irregular and an abuse of process. The central legal issues before the court were whether the counterclaim should be stayed pending the outcome of the originating motion, and if so, whether the orders made by E M Heenan J were appropriate.

The court considered the relevant legislation and case law concerning interlocutory applications, vexatious proceedings, and the balance of convenience in deciding whether to grant leave to appeal and stay the action. The court held that the application turned on its own facts and required consideration of the particular circumstances of the case. It found that the counterclaim was irregular and an abuse of process, and that the orders made by E M Heenan J were appropriate in the circumstances. The court emphasised the importance of maintaining the efficiency of the court system and preventing unnecessary and vexatious litigation.

The court granted leave to appeal and stayed the action, subject to certain conditions. The court ordered that the counterclaim be severed from the originating summons and stayed until the hearing and determination of the originating motion. The court also ordered that either party was to be at liberty to enter the originating motion for hearing at the expiration of 42 days from the order, and that the matter was to be listed for hearing at the discretion of the listing officer. The court further ordered that neither party was to interrogate without leave of a Judge, that there was to be no discovery without leave of the Court, and that there was liberty to apply within 14 days for leave to seek discovery and to interrogate, and for further directions. The matter was then to be listed for hearing at the discretion of the listing officer.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an application for leave to appeal, and for a stay of an action. It arises in the following way. An application by originating motion has been made by the Hon Attorney‑General against the applicant for leave to appeal in these proceedings, Dr Michael and his wife Mrs Michael, under the Vexatious Proceedings Restriction Act 2002. On 9 April 2003 Justice Barker gave orders that the hearing of the originating motion be before a Judge in Court on a date to be fixed. He also made orders for the filing of affidavits and giving leave for the parties to apply for further directions, including directions as to leave to cross-examine deponents. On 18 August 2003 the solicitors acting for the Hon Attorney‑General sent a letter to the Court's Listing Officer requesting that the originating motion be listed for hearing. Dr Michael objected to the listing of the matter, on the basis that he had on foot a freedom of information application, which was to be followed by "better particulars, inspection, discovery and interrogatories". He further advised that a counterclaim would soon be filed and served on the Crown Solicitor. On 29 August he filed what is in form a counterclaim. There is no counterclaim against the Hon Attorney-General, the applicant in the Vexatious Proceedings Restriction Act matter, but the counterclaim is against the Crown Solicitor for Western Australia and 10 other defendants and groups of defendants. I will come to the detail of the counterclaim in a moment. With the parties unable to agree on whether the originating summons should be listed in accordance with the directions of Justice Barker, the listing officer referred the matter to a Judge in Chambers for directions. The matter was listed before E M Heenan J for 30 September. On 24 September there was filed and served by solicitors for the Hon Attorney‑General a minute of proposed orders. That minute is not before us. However, it appears that the solicitors for the Hon Attorney-General were seeking to strike out or dismiss the counterclaim on the basis that it was irregular and an abuse of process. Dr Michael sought directions that the originating motion should not be listed for trial until pleadings in the counterclaim had been exchanged and discovery and interrogatories in the counterclaim completed. E M Heenan J treated the matter as a general directions hearing and made the orders which are the subject of the present application. Those orders were that the counterclaim be severed from the originating summons and stayed, subject to liberty to apply, until hearing and determination of the originating motion; that the applicant could apply for continuation of the counterclaim as a separate action and seek directions in that regard; that neither party was to interrogate without leave of a Judge; that there was to be no discovery without leave of the Court; that there was liberty to apply within 14 days for leave to seek discovery and to interrogate, and for further directions; and otherwise it was ordered that either party was to be at liberty to enter the originating motion for hearing at the expiration of 42 days from the order. The matter was then to be listed for hearing at the discretion of the listing officer. It is our understanding that, application having been made, the matter has now been listed at a hearing commencing on 26 April.

Ratio Decidendi

Legal Principle Established

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