JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: MR LIETZAU -v- BERRY [2025] WASC 56
CORAM: TOTTLE J
HEARD: 28 JANUARY 2025
DELIVERED : 26 FEBRUARY 2025
FILE NO/S: CIV 1010 of 2024
BETWEEN: MR LIETZAU
Applicant
AND
MICHAEL BERRY
First Respondent
CATHERINE CRAWFORD
Second Respondent
MS LIETZAU
First Other Party
SAMANTHA BAILY
Second Other Party
LEGAL AID COMMISSION OF WESTERN AUSTRALIA
Third Other Party
ANN KORZENIECKA
Fourth Other Party
RACHEL MILTON
Fifth Other Party
Catchwords:
Administrative law - Judicial review - Where parenting proceedings in Family Court and restraining order proceedings in the Magistrates Court - Where Family Court judge dismissed application for anti-suit injunction - Whether error of law made in application of the principles governing the grant of anti-suit injunctions - Whether asserted error of law a jurisdictional error - Where no error of law established - Where asserted error not a jurisdictional error - Turns on own facts
Administrative law - Judicial review - Where parenting proceedings in Family Court and restraining order proceedings in the Magistrates Court - Where magistrate dismissed application for stay of restraining order proceedings - Whether error of law made in application of principles governing the grant of stay - Whether asserted error of law a jurisdictional error - Where no error of law established - Where asserted error of law not a jurisdictional error - Turns on own facts
Administrative law - Judicial review - Where relief sought included orders of a disciplinary nature in respect of judicial officers - Judicial independence - Judicial immunity from suit - Application for relief sought scandalous and vexatious
Legal practitioners - Judicial review - Where relief sought included orders that legal practitioners be referred to the Supreme Court to show cause why names should not be removed from Supreme Court roll - Application scandalous and vexatious
Legislation:
Family Court Act 1997 (WA)
Family Law Act 1975 (Cth)
Legal Profession Uniform Law 2022 (WA)
Magistrates Court Act 2004 (WA)
Restraining Orders Act 1997 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| First Respondent | : | A Shuy & G Mullins |
| Second Respondent | : | A Shuy & G Mullins |
| First Other Party | : | No appearance |
| Second Other Party | : | BW Ashdown |
| Third Other Party | : | A Shuy & G Mullins |
| Fourth Other Party | : | RS Hooper SC |
| Fifth Other Party | : | BW Ashdown |
Solicitors:
| Applicant | : | In Person |
| First Respondent | : | State Solicitor's Office |
| Second Respondent | : | State Solicitor's Office |
| First Other Party | : | In Person |
| Second Other Party | : | In Person |
| Third Other Party | : | State Solicitor's Office |
| Fourth Other Party | : | In Person |
| Fifth Other Party | : | In Person |
Cases referred to in decision:
AA v BB [2013] VSC 120; (2013) 296 ALR 353
Bajaj v Magistrate Trevor Darge [2021] WASCA 218
CSR Ltd v Cigna Insurance Australia Ltd [1997] HCA 33; (1997) 189 CLR 345
CZA19 v Federal Circuit Court of Australia [2021] FCAFC 57; (2021) 285…
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- AGLC
- Mr Lietzau v Berry [2025] WASC 56
- Case
- [2025] WASC 56
- Decision Date
CaseChat Overview and Summary
The court examined the principles governing the grant of anti-suit injunctions and stays, emphasizing that such injunctions may be granted to protect the integrity of court processes or to restrain proceedings that are vexatious or oppressive. The court highlighted that the power to grant such injunctions is not confined to defined categories and is exercised when necessary for the protection of the court's own proceedings or processes. The court also noted that the equitable jurisdiction to grant injunctions may be exercised to restrain proceedings involving unconscionable conduct or the unconscientious exercise of legal rights. However, the court found that the decisions of the Family Court and the Magistrates Court did not establish any error of law. The court concluded that the asserted errors of law were not jurisdictional errors and that they turned on the facts of the case. Therefore, the applications for judicial review were dismissed.
No further orders were made as the court found that the applicant had not established any error of law in the decisions of the Family Court and the Magistrates Court. The court also dismissed the applicant's relief seeking orders of a disciplinary nature in respect of judicial officers and orders referring legal practitioners to the Supreme Court, finding these applications to be scandalous and vexatious.
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
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Ratio Decidendi
Legal Principle Established
As to the power to grant anti-suit injunctions the majority stated:[33]The counterpart of a court's power to prevent its processes being abused is its power to protect the integrity of those processes once set in motion. And in some cases, it is that counterpart power of protection that authorises the grant of anti-suit injunctions. Thus, for example, if 'an estate is being administered . . . or a petition in bankruptcy has been presented ... or winding up proceedings have been commenced ... an injunction [may be] granted to restrain a person from seeking, by foreign proceedings, to obtain the sole benefit of certain foreign assets'. Similarly, as Gummow J pointed out in National Mutual Holdings Pty Ltd v Sentry Corporation, a court may grant an injunction to restrain a person from commencing or continuing foreign proceedings if they, the foreign proceedings, interfere with or have a tendency to interfere with proceedings pending in that court. The inherent power to grant anti-suit injunctions is not confined to the examples just given. As with other aspects of that power, it is not to be restricted to defined and closed categories. Rather, it is to be exercised when the administration of justice so demands or, in the context of anti-suit injunctions, when necessary for the protection of the court's own proceedings or processes. (italics added)[33] CSR Ltd v Cigna Insurance Australia Ltd (391 - 392). The majority explained that in addition to the inherent power to protect its own processes a court may exercise its equitable jurisdiction to grant injunctions restraining the bringing of legal proceedings if such proceedings involve unconscionable conduct or the unconscientious exercise of legal rights. Within the scope of this equitable jurisdiction the majority drew a distinction between the exercise of the jurisdiction to restrain unconscionable conduct in aid of legal rights, for example restraining proceedings brought in breach of a contract not to sue and the exercise of the jurisdiction to restrain proceedings in another court which, according to the principles of equity, are vexatious or oppressive. The majority developed the analysis of this latter aspect of the equitable jurisdiction with references to 'double litigation' cases as follows:[34]In Societe Aerospatiale, the Privy Council emphasised that the various cases decided in the nineteenth century with respect to vexation and oppression, including Peruvian Guano Co v Bockwoldt, have continuing significance for the grant of anti-suit injunctions. Those cases establish that the mere co-existence of proceedings in different countries does not constitute vexation or oppression. In particular, Peruvian Guano establishes that 'double litigation [which] has no other element of oppression than this, that an action is going on simultaneously abroad, which will give other or additional remedies beyond those attainable in [the domestic forum]' does not amount to vexation or oppression. More recently, in Bank of Tokyo Ltd v Karoon, Robert Goff LJ pointed out, correctly, in our view, although without specific reference to the underlying equitable principle, that foreign proceedings are to be viewed as vexatious or oppressive only if there is nothing which can be gained by them over and above what may be gained in local proceedings. On the other hand, they are vexatious or oppressive if there is a complete correspondence between the proceedings or, in terms used in Carron Iron Co, if 'complete relief' is available in the local proceedings.Given that, in England, the power to grant injunctions has for many years been conferred by statute, it is not surprising that the cases decided in that country in recent years do not make a clear distinction between injunctions granted in exercise of the inherent power and those granted in the exercise of equitable jurisdiction. However, the older cases referred to in Societe Aerospatiale make it abundantly clear that the power to stay foreign proceedings which are vexatious or oppressive, in the sense already described, is a power which derives from equity. Because the power to grant injunctions in respect of foreign proceedings which are vexatious or oppressive, in the sense described, derives from equity, it is not to be confined to the examples found in the decided cases. Rather, it is a power the limits of which are determined by the dictates of equity and good conscience. (footnotes omitted)[34] CSR Ltd v Cigna Insurance Australia Ltd (393 - 394).