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 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.
In order to understand the orders made, it is necessary to refer briefly to the counterclaims. In essence, the counterclaims appear to allege a conspiracy by the defendants maliciously and without reasonable cause to bring about the institution of the proceedings pursuant to the Vexatious Proceedings Restriction Act. The various defendants appear largely, if not entirely, to be neighbours of Dr Michael who have become embroiled in a long running dispute with him arising out of difficulties in their interaction in the cul-de-sac in which they live, and other persons, including police officers, who have been dragged into that long running dispute. The dispute is impossible to summarise briefly. It appears to have arisen originally out of a simple matter of a complaint by Dr Michael, many years ago, about what he alleged to have been excessive levels of noise, and his objection to the way in which the neighbours about whom he complained dealt with that complaint. Over the years, there have been many actions instituted by Dr Michael, alleging various kinds of tort, against his neighbours and there have been restraining order applications made by some of the parties against each other. There is, as we understand it, now on foot some criminal proceeding in the District Court, in which it is alleged that the applicant used pepper spray against a person. The details of the indictment are not clear, but it seems that the applicant has entered a plea of not guilty and that there will be a trial in due course.
Against that background, the flavour of the counterclaims can best be seen by looking to the endorsement against one of the defendants, identified in the endorsement as "Richard". It is alleged not only that he conspired with other defendants to bring the original action, but also: that he gave misleading information to the Crown Solicitor; that he defamed Dr Michael, that he contacted Wesley College to the detriment of Dr Michael and his son and defamed both of them; that he "spoke ill of" Dr Michael to the Archbishop of Perth; that he committed perjury in an affidavit; that he made a false report to the police and that he "obstacled" Dr Michael in September 1999.
E M Heenan J reached the conclusion that the joinder of the causes of action relied upon in the alleged counterclaim, and the naming of the 11 defendants to that counterclaim, would embarrass or delay the determination of the principal application initiated under the Vexatious Proceedings Restriction Act.
It is not easy to discern from the applicant's proposed grounds of appeal or from his submissions, precisely what is the nature of the complaint which he makes about the orders in question. One can, however, identify a number of strands. First, the applicant complains that E M Heenan J has in effect prejudged the question of whether he is a vexatious litigant, by making the orders against him. This appears to arise in part from the fact that counsel for the Hon Attorney-General urged his Honour to find the counterclaim vexatious. However his Honour did not do so. The conclusion that the applicant is a vexatious litigant is not one which is a prerequisite to the making of the orders made by E M Heenan J. Further, there is nothing in his Honour's reasons or in his exchanges with the applicant or with counsel for the Hon Attorney‑General which suggest that he had reached any conclusion in relation to that issue. This complaint therefore has no substance.
Next, it appears that the applicant complains that he was in effect "ambushed" before E M Heenan J, when counsel for the Hon Attorney‑General sought the orders which he did at a directions hearing. On the papers before us, this initially gave rise to some concern. However, counsel for the Hon Attorney-General drew our attention to the fact that a minute of proposed orders had been served on the applicant well before the Chambers hearing. He was therefore in a position to know what orders were being sought.
It was also suggested by the applicant that permitting the Vexatious Proceedings Restriction Act proceeding to be entered for hearing and to be heard, would have the effect of prejudicing the applicant in his defence of the criminal proceeding. It was not explained to us how that could be so. Although the criminal proceeding appears, so far as we can tell, to arise out of the animosity generated by the litigation between the parties, there was nothing before us to suggest that it would be necessary in dealing with the vexatious proceedings restriction matter, to canvas in any detail the events surrounding the criminal proceeding.
Finally, and it appears most significantly, the applicant appears to be firmly of the view that his counterclaim is extricably intertwined with the vexatious proceedings application, and that the matters can only be determined at the same time. As we understand it, his view is that it is necessary to deal in detail with the entirety of the history of his dispute with his neighbours in order to defend the vexatious proceedings application, and he takes the view that it is therefore appropriate for him in that application to bring by way of counterclaim, to this Court, all of the various complaints which he has against his neighbours and others. That view is simply misconceived. The questions which will arise in the vexatious proceedings restriction application are: what proceedings the applicant has instituted; what steps have been taken by the applicant and others in those proceedings; the applicant's intention in bringing and maintaining those proceedings; and whether those proceedings were brought without reasonable cause. This is not an exhaustive statement of the issues which will arise in that application, but it is a summary sufficient for present purposes. To the extent that the applicant has already taken proceedings against the various defendants sought to be named in the purported counterclaim, questions about the underlying facts of those proceedings will undoubtedly arise. However, those questions can be ventilated without it being necessary to determine any of the claims made in the purported counterclaims.
It is our view that E M Heenan J was entirely correct in the conclusion which he reached that the purported counterclaims were likely to unduly embarrass and delay the hearing of the Vexatious Proceedings Restriction Act application. The applicant's submissions to the contrary do not appear to us to be reasonably arguable. That is so for a number of reasons. One is that the claims in the various counterclaims are largely, in their present form, not intelligible legal claims; in the case of the defendant "Richard", to pick up two examples, speaking ill of the applicant is not an intelligible claim, and committing perjury is a criminal offence, but not something for which a civil action can be brought by this applicant. To the extent that the claims are on their face legally intelligible - for example, claims of defamation - the ordinary course of such actions suggests that there would be a very long delay before the counterclaims could be ready for trial. Further, for the vast majority of the claims made in the counterclaims, there appears to be no connection on their face between those claims and any issue likely to arise in the vexatious proceedings application. Although the factors to which we have referred amply justify, in our view, the conclusion reached by E M Heenan J, we would further note that there does not appear to be a provision in the Rules for the making of a counterclaim in a proceeding commenced by way of originating motion. Both s 4 of the Supreme Court Act and O 4 of the Rules of the Supreme Court contemplate that an "action" is a matter commenced by writ, while O 18 r 2 and r 3 appear to permit counterclaims only in respect of "actions".
So far as the orders in relation to discovery and interrogatories are concerned, the view of the applicant appears to be founded upon the erroneous assumption that discovery and interrogatories are available to parties as of right. That is simply not the case. While it may well have been the practice in former times that discovery and interrogatories were almost automatic steps in any action, O 29 makes clear the power of the Court to dispense with interlocutory proceedings or steps altogether, and to make other directions to ensure the just and expeditious disposition of the proceedings. There was nothing in the material before E M Heenan J to suggest that either discovery or interrogatories would be necessary in the vexatious proceedings application; in any case, his Honour left open the possibility that such steps could be taken, provided application was made to a Judge, within time, to do so. Those are orders of the type commonly made in proceedings in this Court. We are unable to see any error in the making of those orders in this case.
For the foregoing reasons, we would dismiss the application for leave to appeal against the orders of E M Heenan J. Having dismissed the application for leave to appeal, it follows that we also dismiss the application that the action be stayed until the determination of the appeal. There is, as we understand it, a respondent's cross-appeal which the respondent is content to have dismissed if this application is dismissed, as it is. We would therefore dismiss the application and the cross-appeal.