Michael v Western Australian Attorney General
[2006] WASCA 123
•27 JUNE 2006
MICHAEL -v- WESTERN AUSTRALIAN ATTORNEY GENERAL [2006] WASCA 123
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASCA 123 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | CACV:1/2006 | 27 MARCH 2006 | |
| Coram: | STEYTLER P WHEELER JA BUSS JA | 27/06/06 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Application for extension of time within which to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | SHAWKY MICHAEL WESTERN AUSTRALIAN ATTORNEY GENERAL |
Catchwords: | Appeal from order declaring appellant a vexatious litigant Turns on own facts |
Legislation: | Vexatious Proceedings Restriction Act 2002 (WA) |
Case References: | Attorney General v Michael & Anor [2005] WASC 203 Attorney General v Michael [1999] WASCA 181 Cretazzo v Lombardi (1975) 13 SASR 4 Crown Solicitor for the State of Western Australia v Michael & Anor; unreported; SCt of WA; Library No 980425; 30 July 1998 Donald Campbell & Co Ltd v Pollak [1927] AC 732 Gallo v Dawson (No 2) (1992) 66 ALJR 859 Allesch v Maunz (2000) 203 CLR 172 Attorney General v Shaw [2004] WASC 280 Beamish v The Queen [2005] WASCA 62 Commonwealth Bank of Australia v Bride [2004] WASC 177 Commonwealth Bank of Australia v Ridout [2004] WASC 136 Dempster v National Companies & Securities Commission (1993) 9 WAR 215 Hunter v Commissioner of Police [2003] WASC 10 Jackamarra v Krakouer (1988) 195 CLR 519 Kwa v City of Stirling, unreported; FCt SCt of WA; Library No 990619; 16 March 1999 Lancaster v The Queen [1989] WAR 83 Livesey v New South Wales Bar Association (1983) 151 CLR 288 Morgan v Wanneroo Smash Repairs Pty Ltd [2003] WASCA 41 Peck v The State of Western Australia [2005] WASCA 20 Re Attorney-General for the Commonwealth of Australia & Anor; Ex parte Skyring (1996) 70 ALJR 321 Re Monitronix Ltd (1987) 5 ACLC 1063 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : MICHAEL -v- WESTERN AUSTRALIAN ATTORNEY GENERAL [2006] WASCA 123 CORAM : STEYTLER P
- WHEELER JA
BUSS JA
- Appellant
AND
WESTERN AUSTRALIAN ATTORNEY GENERAL
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : LE MIERE J
Citation : ATTORNEY GENERAL -v- MICHAEL & ANOR [2005] WASC 203
File No : CIV 1374 of 2003
Catchwords:
Appeal from order declaring appellant a vexatious litigant - Turns on own facts
(Page 2)
Legislation:
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Application for extension of time within which to appeal refused
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Mr C P Wayte
Solicitors:
Appellant : In person
Respondent : State Solicitor's Office
Case(s) referred to in judgment(s):
Attorney General v Michael & Anor [2005] WASC 203
Attorney General v Michael [1999] WASCA 181
Cretazzo v Lombardi (1975) 13 SASR 4
Crown Solicitor for the State of Western Australia v Michael & Anor, unreported; SCt of WA; Library No 980425; 30 July 1998
Donald Campbell & Co Ltd v Pollak [1927] AC 732
Gallo v Dawson (No 2) (1992) 66 ALJR 859
Case(s) also cited:
Allesch v Maunz (2000) 203 CLR 172
Attorney General v Shaw [2004] WASC 280
Beamish v The Queen [2005] WASCA 62
Commonwealth Bank of Australia v Bride [2004] WASC 177
Commonwealth Bank of Australia v Ridout [2004] WASC 136
(Page 3)
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
Hunter v Commissioner of Police [2003] WASC 10
Jackamarra v Krakouer (1988) 195 CLR 519
Kwa v City of Stirling, unreported; FCt SCt of WA; Library No 990619; 16 March 1999
Lancaster v The Queen [1989] WAR 83
Livesey v New South Wales Bar Association (1983) 151 CLR 288
Morgan v Wanneroo Smash Repairs Pty Ltd [2003] WASCA 41
Peck v The State of Western Australia [2005] WASCA 20
Re Attorney-General for the Commonwealth of Australia & Anor; Ex parte Skyring (1996) 70 ALJR 321
Re Monitronix Ltd (1987) 5 ACLC 1063
(Page 4)
1 JUDGMENT OF THE COURT: This is the appellant's application for an extension of time within which to appeal. On 27 March, Wheeler JA called the application on for a directions hearing and, having heard from the appellant and the respondent, her Honour ordered by consent that the application for extension of time be dealt with on the papers. The relevant papers, which were identified in consultation with the parties, are: the application; the affidavit of Dr Michael dated 29 December 2005; the affidavit of Mr Wayte dated 2 February 2006; the appellant's case dated 3 March 2006; the respondent's outline of submissions dated 23 March 2006; and the appellant's submissions, for which leave was given to file by 6 April 2006 and which he filed on that date, with a supporting affidavit.
2 The appeal is from an order of Le Miere J dated 16 September 2005, pursuant to s 6 of the Vexatious Proceedings Restriction Act 2002 (WA), ordering that no legal proceedings be instituted by Dr Michael (other than to exercise any right of appeal against conviction or sentence for a criminal offence) in the Supreme Court, or any inferior court or tribunal in this State, unless Dr Michael first obtains the leave of that court or tribunal. Le Miere J's orders also stayed certain proceedings instituted by Dr Michael in the Court of Petty Sessions and gave the Attorney General liberty to apply for an order staying a District Court action and a violence restraining order amendment application. There were also orders that Dr Michael pay the Attorney General's costs of the application, with a certificate for second counsel.
3 Broadly, the background to the orders made by Le Miere J is as follows. There had been an earlier application before Wheeler J in 1998 under the former Vexatious Proceedings Restriction Act 1930 (WA) ("the 1930 Act"). In that application, the applicant Crown Solicitor relied upon two sets of proceedings instituted by Dr Michael, they being described as "the Monitronix litigation" and the "Tully Court litigation". The 1930 Act relevantly provided:
"If, on an application made ... under this section, the Supreme Court is satisfied that any person ... has habitually and persistently and without any reasonable ground, instituted or commenced vexatious proceedings, whether in the Supreme Court or in any inferior court ... [the Court could in effect declare the person a vexatious litigant]."
4 "Institute proceedings" was defined to include the taking of any step or the making of any application which may be necessary in any particular
(Page 5)
- case before proceedings can be commenced against any party. "Inferior court" was defined to include a local court and any court exercising summary jurisdiction in relation to a trial of offences.
5 Wheeler J declined to make the order sought. At page 32 of her Honour's reasons (Crown Solicitor for the State of Western Australia v Michael & Anor, unreported; SCt of WA; Library No 980425; 30 July 1998), she considered that a distinction should be made for the purposes of the 1930 Act between an action which was vexatious, and an action which was conducted in a vexatious manner. Only actions of the former type fell within the terms of s 3 of the 1930 Act, so that if the underlying actions were not "utterly hopeless", then the use of misconceived procedures, defects of pleading, placing of irrelevant material before the Court, and so on, fell to be dealt with under the rules of court rather than under the Act.
6 The Full Court dismissed an appeal from Wheeler J's decision, in Attorney General v Michael [1999] WASCA 181. It is important for present purposes, however, to note certain observations of Anderson J, with whom Pidgeon and Steytler JJ agreed, in that decision. In relation to the Tully Court litigation, Anderson J observed that Dr Michael's conduct in relation to that dispute demonstrated " ... that he is quite prepared to commence legal proceedings making the most serious and disturbing allegations against people in a form not in accordance with the rules of pleading and on the basis of fundamental misconceptions as regards legal doctrine" ([98]). His Honour also observed that within the Tully Court and Monitronix actions, Dr and Mrs Michael "have between them made countless interlocutory applications and numerous appeals from those applications by far the majority of which were decided against them. Most of the actions appear to be based, in part at least, on fundamental misconceptions as to legal principle and a basic misunderstanding of jurisprudence" ([112]). Finally, his Honour observed that Dr Michael had "sailed extremely close to the wind" and that an order under the 1930 Act might yet be required to be made ([133] - [134]).
7 The 1930 Act was repealed, and has been replaced by the Vexatious Proceedings Restriction Act 2002 ("the Act"). Section 4 of the Act provides:
"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;
(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."
8 Section 3 of the Act defines "proceedings" to include:
"(a) any cause, matter, action, suit, proceeding, trial, or inquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal;
(b) any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and
(c) an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal;"
9 Section 3 also defines "vexatious proceedings" to mean proceedings:
"(a) which are an abuse of the process of a court or a tribunal;
(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;
(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."
10 Thus, unlike the situation as it was under the 1930 Act, "proceedings" now includes any interlocutory proceeding or step taken in the course of a proceeding, as well as originating proceedings and appeals. The Act also makes it clear that proceedings are vexatious if they are objectively an abuse of process of a court or tribunal, or are instituted or pursued without reasonable ground, whatever may be the subjective intention or motive of the litigant. It was against those altered statutory criteria that Le Miere J came to determine the Attorney General's application.
11 In the application before Le Miere J, the Attorney General relied upon the history of the Tully Court litigation up to the time of the application which was previously made to Wheeler J, together with further matters which have occurred in relation to Tully Court since that
(Page 8)
- time. The history of those matters is very lengthy, and is set out in detail in the reasons of Le Miere J: Attorney General v Michael& Anor [2005] WASC 203, at [14] - [134]. That summary, which we do not repeat, should be read with these reasons.
12 The appellant has been ambivalent, it seems, about appealing. He attempted to file on or about the last day for appealing documents which, while not in proper form, appeared to indicate an intention to appeal (affidavit of Dr Michael dated 29 December 2005). On 7 September, he advised the State Solicitor, by facsimile, that he did not intend to appeal (affidavit of Mr Wayte dated 2 February 2006). On 3 January 2006, however, he filed an appeal notice, which was out of time.
13 The respondent submits that the appellant's application for extension of time within which to appeal should be dismissed on the basis that it is impossible for the appellant to demonstrate that strict compliance with the rules would work an injustice upon him. That, it is submitted, is because the appeal clearly has no prospects of success and an extension of time would be futile: see Gallo v Dawson (No 2) (1992) 66 ALJR 859. It is necessary therefore to consider the grounds of appeal. The grounds fall into a number of categories. We deal with them in turn.
Ground 1
14 This ground asserts that his Honour erred in refusing to disqualify himself. Various particulars are provided. It appears that the central tenet of the ground is that his Honour had, on a previous occasion, presided over the Legal Practitioners' Disciplinary Tribunal in proceedings in which he made adverse findings in relation to the appellant. It is impossible to tell from either the ground or the appellant's submission what those proceedings are said to have been, and what role, if any, Le Miere J is said to have played in them. No record of any proceedings before the Legal Practitioners' Disciplinary Tribunal is tendered in evidence, and there is no identification of any proceeding in a way which would enable independent inquiry to be made.
15 The allegation of bias was ventilated before Le Miere J and it appears from the transcript of that part of the proceedings that the appellant was, and apparently remains, under a misconception.
16 On 11 February 2005 - that is, on the concluding day of five days of hearing - Dr Michael said to his Honour, "I think you should not have presided in this case". He then began to refer to something which had happened previously in the Barristers' Board. The relevant portion of the
(Page 9)
- transcript at pages 505 to 507 read, omitting some repetitive matter, as follows:
"MICHAEL, DR: We had the Legal Complaint Committee as a firm, Graeme Potger, sir, as a false affidavit. You part of that committee, came before you. That's in my affidavit and shows affidavit as Mr Potger that's - - -
LE MIERE J: I'm sorry, you're saying in the proceedings in the Legal Disciplinary - Legal Practitioners - - -
MICHAEL, DR: No, that's finished apart from that Legal Complaint Committee. That's the other one or a legal - - -
LE MIERE J: This is some different matter?
MICHAEL, DR: Yes, Mr Graeme Potger, solicitor.
LE MIERE J: Not a matter that I sat on?
MICHAEL, DR: No, but you were part of the board, sir.
LE MIERE J: Part of the Legal Practice Board?
MICHAEL, DR: Yes.
LE MIERE J: I see.
MICHAEL, DR: Where that came before you a lot.
LE MIERE J: I see, yes, on the basis that every - you mean because of every Queen's counsel and a number of elected representatives of the profession were all members of the board; hence, I was a member of the board?
MICHAEL, DR: No, no, sir. That's another matter, not Mr Penglis' matter.
LE MIERE J: No, you're referring to another matter?
MICHAEL, DR: Yes, where I just complain to the - it's the something Complaint Committee.
LE MIERE J: Complaints Committee.
MICHAEL, DR: Yes, the Complaints Committee.
- LE MIERE J: Yes, I see.
MICHAEL, DR: With Mr Potger's affidavit.
LE MIERE J: Can I tell you, Dr Michael - - -
MICHAEL, DR: Just to prove I'm not a vexatious, I'll consent to that order because we just - - -
LE MIERE J: Just wait a minute, please. You've raised a new matter which you say goes to the appearance of my capacity to decide this matter uninfluenced by any matter except the evidence in the matters before me. I have to tell you that I have no recollection of having sat on any Complaints Committee at which there was any matter involving Mr Potger and you arising before that committee.
MICHAEL, DR: But you were a member of the board.
LE MIERE J: Of the board.
MICHAEL, DR: You were a member of the board and the committee at the time, sir. I've got the list and I'd be surprised - - -
LE MIERE J: Yes. I'm not quite sure what you're saying, you see, because there are two separate bodies. One is the Legal Practice Board which at the relevant time I think the members of the Legal Practice Board were every Queen's counsel or senior counsel in Western Australia plus some elected members of the legal profession, and I was by virtue of being a Queen's counsel a member of that board.
I was by virtue of being a Queen's counsel a member of that board. Now, that board, as a board, does not generally sit to hear complaints and I have no recollection of having had any material before me in my capacity as a member of that board involving yourself and Mr Potger.
There is a second body called the legal complaints committee. I was at one time a member of a legal complaints committee. There were two such committees. I have no recollection and don't believe that I sat on any matter which involved Mr Potger and yourself.
(Page 11)
- MICHAEL, DR: Okay. Well, I have to accept that, your Honour."
17 The appellant's grounds, and the materials provided by him, contain nothing to suggest any inaccuracy in what his Honour then said. Ground 1 is therefore without substance.
Ground 2
18 Leaving aside complaints contained within this ground about his Honour not permitting the appellant to address him, which material overlaps the same complaint in other grounds and to which we turn later, this ground raises three issues. First, it is asserted that in the Tully Court litigation, some proceedings had been commenced by various neighbours and that three Magistrates had found that the neighbours were vexatious. These cannot be findings under the Act, which gives jurisdiction only to the District and Supreme Courts (ss 3, 6); the reference must be to observations which Dr Michael considers suggest that the neighbours' actions were ill-conceived.
19 Observations of that kind, assuming them to have been made, must be seen against the background of the whole of the litigation as summarised by his Honour. It would be surprising if persons subjected to the lengthy history of vexatious litigation which his Honour describes had not, on occasion, acted in ways which might be considered to be hasty or ill-advised. The fact that they may have done so does not of itself indicate that actions undertaken by Dr Michael were not vexatious. In any event, it was, of course, for Le Miere J to consider the whole of the evidence before him, in order to determine whether proceedings by the appellant fell within the Act.
20 A similar observation can be made about the second matter raised under this heading, which is to the effect that there were affidavits from independent witnesses indicating that some of the appellant's applications for violence restraining orders were justified.
21 The third matter raised under this ground is that there were other affidavits referring to occasions upon which the appellant had tried to "settle" matters in Tully Court. The fact that the appellant had, on occasion, attempted to "settle" proceedings must be understood in the context of the litigation as outlined by his Honour. It is plain that the appellant has, by and large, been concerned to settle only on his terms, and that those terms have arisen from a misconceived notion, in the majority of cases, about his legal rights. It may also be that the appellant
(Page 12)
- has not taken action on some occasions on which he considered he would have been justified in doing so. However, that would not, of itself, indicate that the actions which he has undertaken were, considered objectively, not vexatious.
Grounds 3 and 4
22 Both of these grounds complain about his Honour depriving the appellant of the opportunity of making a closing submission. The short answer is that his Honour did not do so.
23 The affidavit of Mr Wayte filed 3 February 2006 annexes portions of the transcript from the concluding day of the hearing. It appears that Dr Michael wished to have the proceeding adjourned for the purpose of compiling detailed written submissions. He wished to do so in part because the Attorney General had produced detailed written submissions. However, it appears from the transcript that the Attorney General's submissions had first been filed in March 2004, and that the submissions of the Attorney General in February 2005 were very substantially the same as the earlier submissions, simply brought up to date to reflect matters which had occurred since the first set of submissions. His Honour expressed the view that there was nothing in the later submissions which could in any way have taken Dr Michael by surprise, having regard to the content of the submissions of March 2004 (t/s 500). Having expressed that view shortly before lunch, his Honour advised the appellant that he was going to adjourn for lunch and that, after the adjournment, the appellant would have two hours in which he could make any oral submissions that he wished.
24 After the luncheon adjournment, the appellant purported to "consent" to whatever order the Attorney General sought, and effectively declined to make any further submissions (t/s 504). However, notwithstanding that expressed consent, his Honour told the appellant that he would still be considering the whole of the matters placed before him and would consider the evidence that the appellant had presented, together with the submissions that he had made, before determining whether to make the orders sought (t/s 509).
25 It is also apparent from the transcript that his Honour had extended considerable leniency towards the appellant in permitting him both to file and to tender affidavits which had not been filed by the date limited by earlier orders made by his Honour (t/s 508 - 509). His Honour also acceded to a request from Mrs Michael to make additional submissions (she, as the second-named respondent, having earlier made submissions
(Page 13)
- on her own behalf), once Dr Michael had declined to make further oral submissions.
26 The appellant points out that it was some seven months after reserving his decision that his Honour delivered judgment. As we understand it, this observation is intended to suggest that judgment would not have been unduly delayed by giving Dr Michael further time within which to file written submissions. However, the fact that judgment was delivered some seven months later does not mean that his Honour was not giving attention to this matter during the intervening period. It is likely that any delay in the conclusion of the proceedings, by allowing further time for the filing of written submissions, would have delayed still further his Honour's ability to determine the matter and to write his reasons. Particularly in the light of the way in which the transcript reveals the hearing to have been conducted, it is our view that it was entirely proper for his Honour to take the view that it was in the interests of all parties that the hearing should be brought to a conclusion at the end of the time allotted for the oral hearing of the application.
27 In his written submissions of 6 April, the appellant sets out in tabular form a list of errors which he asserts his Honour made and which he says could have been avoided had his Honour permitted the appellant to file further written submissions. The majority of those matters are references to incidents or matters which the appellant asserts his Honour should have referred to in his reasons, they being matters referred to in affidavits tendered by the appellant. They fall into three broad categories. Some contain allegations that there are parties against whom the appellant had taken legal action over the years who had behaved wrongly towards him or towards members of his family. Some refer to findings or passing comments from time to time in various proceedings which suggest that some portions of some actions brought by the appellant may have (however deeply buried) some factual foundation. Others refer to situations where the appellant alleges that he would have been entitled to pursue legal action, but did not do so. The short answer to those matters is that it was plainly not possible for his Honour in his reasons to deal with every incident which had occurred in the very detailed and varied litigious history, and interpersonal history, between the appellant, his neighbours, and others over the course of nearly a decade. His Honour summarised the essential features of that history.
28 The other alleged "mistakes" show merely a different view taken by the appellant of material referred to by his Honour. Where those differences do not simply reflect mistake on the appellant's part, they
(Page 14)
- either have the flavour of hair-splitting, or lack any reference to any supporting evidence.
29 As an example of both hair-splitting and lack of evidence, his Honour is asserted to be in error in [78] of his reasons in referring to a letter posted to Mr Maughan on 20 November 2001. It is said in the appellant's table that the letter was personally placed in Mr Maughan's mailbox, a distinction having no relevance. It is also said that the date was "on or about 2 November". The date is important, because of his Honour's findings in [79]. However, no evidence supporting the assertion concerning the date is referred to. The heading to the table asserts that details of affidavits containing supporting evidence are referred to in the appellant's draft chronology, but that document does not refer at all to these applications (numbers PE 1898/01 and 1899/01), or to any date in November 2001.
30 As an illustration of the misconceptions in the table, the appellant refers to [32] of Le Miere J's reasons and asserts that his Honour was in error in considering that certain words placed on signs by the appellant's neighbours could not have supported any of the imputations pleaded by the appellant. The table refers to this as a finding by his Honour that the words were "not defamatory" which is, of course, not quite the same as a finding that the words could not support certain pleaded imputations. It is asserted that the "finding" contradicted a finding of Wheeler J in her reasons of 30 July 1998. Her Honour's reference to those words is found at page 40 of the reasons which were delivered, and is not a finding that the words were defamatory or that they supported any particular imputation. In any event, her Honour's "finding" is irrelevant. It was a view reached upon the evidence before her Honour in 1998. It was open to his Honour to reach a different view, had he done so, in relation to the evidence which was before him.
31 The appellant's table does not support the proposition that his Honour failed to hear the appellant or failed to properly consider all the material before him. Nor does it suggest that his Honour made any factual error of significance.
Ground 5
32 This ground asserts that his Honour's judgment shows that none of the appellant's affidavits in reply had been read by his Honour and, further, that his Honour's reasons did not refer to the appellant's refusal to commence litigation in a matter involving BHP. It is suggested in the latter connection that his Honour should have given more weight to the
(Page 15)
- appellant having previously refrained from resorting to litigation where that was an option. To an extent, this ground therefore overlaps with the material raised by ground 2, and we repeat the observations that we have made in relation to it.
33 To the extent that this ground suggests that his Honour had not read the appellant's affidavits, nothing in the appellant's grounds or submissions supports such a view. Even the small portions of the transcript which are annexed to the affidavit of Mr Wayte, to which we have earlier referred, demonstrate that his Honour was at pains to understand what affidavits were tendered by the appellant, and what they were about.
34 It appears that this ground, at least in part, rests upon a misconception arising from a letter dated 13 December 2005, written by his Honour's associate to Dr and Mrs Michael after the conclusion of the trial. That letter is annexed to Dr Michael's affidavit of 29 December 2005. It is a letter referring to certain exhibits which are enclosed with it. It notes that a large number of exhibits were tendered throughout the trial. Most of those were affidavits that had been filed at the Supreme Court Registry, and the letter advises that those exhibits were returned to the file from which they had been extracted. It continues: "Therefore the only exhibits that you will find enclosed are those that were tendered by the respondents, and which had not previously been filed." Those affidavits were returned to the Michaels. They were not returned to the file, for the simple reason that they had never been filed.
35 The fact that unfiled affidavits were returned some months after the delivery of his Honour's reasons and the making of orders, does not demonstrate that they were not read by his Honour. It is the usual practice in this Court to return to the party tendering exhibits, those exhibits which have been tendered by that party, at the conclusion of the time limited for appeal. The fact that some affidavits, which had been tendered, but not filed, were dealt with in accordance with that practice, cannot found any inference that they were not read or were not given appropriate weight.
Ground 6
36 This ground contains, somewhat obliquely, a further complaint about his Honour allegedly depriving the appellant of the opportunity of addressing the Court in closing. To that extent, it has already been dealt with. It also asserts that his Honour did not take into account the appellant's voluntary assistance to other litigants in person. Such voluntary assistance, assuming it to have been given, and assuming that
(Page 16)
- there was evidence of it before his Honour, was simply not relevant to the application before him. There would therefore be no error in his Honour failing to take it into account.
Ground 7
37 This ground deals with his Honour's orders as to costs. The orders were in accordance with the principle that costs will generally follow the event. His Honour had a discretion to frame what orders he thought appropriate and could have departed from that general principle, had he found that circumstances made it proper to do so. The discretionary nature of such a decision has, however, often been stressed: Donald Campbell & Co Ltd v Pollak [1927] AC 732.
38 The complaints in relation to the costs order are contained in four subparagraphs. The materials before us do not include a transcript of the application for costs. However, it is possible to deal with these allegations on the materials which are available.
39 Paragraph (a) complains that his Honour granted a certificate for second counsel "using reason that differs from what was requested by the Attorney General". A Court, of course, is not confined in its reasons for making an order to the precise reason advanced by the successful party, or indeed by any party. The rarity and relative novelty of proceedings under the Act, the serious nature of an order depriving a person of a right to institute proceedings without leave, and the very lengthy and complex history of litigation by the Michaels are all reasons amply justifying the certificate for second counsel which his Honour gave.
40 Paragraph (b) is concerned with the costs of 26 and 30 March 2004, being the first two days of the hearing before his Honour. The paragraph refers to objections to evidence. Looking to [11] of his Honour's reasons, it appears that, on those days, there was argument concerning the admissibility of large portions of affidavits sought to be relied on by the Attorney General. His Honour upheld the appellant's objection, which resulted in the hearing of the application being adjourned to enable the Attorney General to lead admissible evidence of those matters. It seems therefore that this paragraph has at its heart a suggestion that it would have been appropriate for his Honour to have split the costs of the proceedings, so as either not to award against the appellants the costs of those two days, or perhaps to award the appellants the costs of those two days.
(Page 17)
41 The short answer to that proposition is that the Court may, in an appropriate case, decline to award costs to a party, or award costs against a party, even where the party has been successful in a proceeding overall, if there is a significant issue in respect of which that party was unsuccessful, which occupied a relatively discrete portion of the proceeding. However, whether it is appropriate to do so is very much a matter for the discretion and judgment of the trial Judge, depending upon the importance of the issues and the manner in which the case was run before him or her: Cretazzo v Lombardi (1975) 13 SASR 4, at 12 (per Bray CJ), 16 (per Jacobs J). Nothing in the submissions of the appellant suggests that his Honour has erred in failing to dissect out that portion of the hearing concerned with the admissibility of affidavits. We note in that respect that it may be significant that it is not suggested that the material contained in the affidavits was irrelevant, but only that it was in inadmissible form, the objections having been concerned with the fact that it was at first sought to present that material in hearsay form.
42 Paragraph 7(c) is not clear. It reads:
"The Order for Costs to be made quickly because of the late start to the proceedings on the morning of 16 September 2005 due to the unavoidable delay by the Appellant and his wife - caused by the Police attending a crime scene on the Freeway - thus depriving the Appellants from properly debating the Order."
43 It seems from this that the appellant was late to court on the day on which judgment was delivered and the orders, including costs orders, made. It appears that the appellant is concerned with the time available to him to debate the order. It appears from the ground itself, however, that the appellant was heard in relation to the orders. Assuming that the appellant's complaint is only concerning the expedition with which those orders were made, it is plain that this contention, too, lacks substance.
44 Paragraph (d) complains that the Attorney General had a prepared submission in relation to costs which "totally ignored" the appellant's written submission on that subject. A party is, of course, not obliged to take into account or respond to the submissions of another party. It is the obligation of a party to present submissions which it considers to be relevant. There is no substance in this contention.
(Page 18)
Ground 8
45 This ground is simply not intelligible. To the extent that it can be understood, it lacks substance. It asserts that his Honour should have requested "substantiation" from counsel for the State Solicitor, who the appellant alleges made a false allegation about the appellant to the Parliament of Western Australia, leading to the passing of the Vexatious Proceedings Restriction Act 2002. It is also asserted that his Honour should have taken "special notice" of a statement made by the Hon Cheryl Edwardes. The statement is not identified. To the extent that the allegedly false allegation, or the statement may have in some way explained or clarified the legislative purpose in enacting the Act, as the ground may be intended to suggest, they are irrelevant. That is because it is not asserted in any of the grounds that his Honour erred in any way in his construction of the Act. If his Honour did not err, then his failure to have regard to some extrinsic material is simply irrelevant.
Conclusion
46 In our view, the respondent is correct in asserting that these grounds have no prospect of success. We would therefore not grant the appellant an extension of time within which to appeal.
5
18
1