Ninan v Valuer-General of Western Australia (No 2)

In the matter of Ninan v Valuer-General of Western Australia (No 2), the applicants sought an extension of time and leave to appeal against orders of the primary judge in five related proceedings. The applicants did not comply with the Rules, as their affidavit did not state the facts relied upon or reasons for the delay, nor did it identify any errors in the exercise of the primary judge’s discretion. The primary judge had dealt with interlocutory applications filed by the respondents seeking orders for summary dismissal or, alternatively, orders for the provision of security for costs. The grounds for summary dismissal relied upon by most of the respondents was that the proceedings were an abuse of process because they sought to relitigate a case which had been disposed of by earlier proceedings.

The court was required to determine whether the applicants had complied with the Rules and whether they had identified any error in the exercise of the primary judge’s discretion. The court found that the applicants had failed to comply with the Rules and had not identified any error in the exercise of the primary judge’s discretion. The primary judge had dealt with the interlocutory applications filed by the respondents seeking orders for summary dismissal or, alternatively, orders for the provision of security for costs. The court held that the primary judge had exercised his discretion correctly and that the applicants had failed to identify any error in the exercise of that discretion.

The court dismissed the application for an extension of time and leave to appeal and ordered the applicants to pay the costs of the application. The court held that the failure to comply with the Rules was not a mere formality, as the affidavit consisted of a wide-ranging set of submissions directed to what were said to be the applicants’ prospects of success in the substantive proceedings. The affidavit also contained unsubstantiated but serious allegations about the parties and against judges of the Court who had dealt with previous applications. The court held that the applicants had not identified any error in the exercise of the primary judge’s discretion and that the primary judge had exercised his discretion correctly.