Opperman v The State of Western Australia
[2017] WASC 174
•26 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: OPPERMAN -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 174
CORAM: KENNETH MARTIN J
HEARD: 9 MAY 2017
DELIVERED : 9 MAY 2017
PUBLISHED : 26 JUNE 2017
FILE NO/S: CIV 3232 of 2016
BETWEEN: SHANE GARY OPPERMAN
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Originating motion by self-represented litigant seeking leave to issue writ and for leave application to be heard by interstate judge - Abuse of process - Leave refused - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 67 r 5
Result:
Leave refused
Originating motion dismissed
Category: C
Representation:
Counsel:
Plaintiff: In person
Defendant: Ms C J Thatcher
Solicitors:
Plaintiff: In person
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Opperman v The State of Western Australia [2011] WASC 25
Rajski v Powell (1987) 11 NSWLR 522
KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 9 May 2017 and has been edited from the transcript.)
This is an application made by a notice of originating motion dated 28 December 2016. But the originating process appears to have been filed at the court on 29 December 2016 and this is somewhat curious. A notice of originating motion seems to have been used here by the plaintiff to circumvent the provisions of the Rules of the Supreme Court 1971 (WA) (RSC), O 67 r 5, in respect of a proposed writ of summons being not accepted for filing by the registry of this court. In such situations, O 67 r 5 does not contemplate, as I assess it, the ancillary use of an originating motion by the would‑be litigant plaintiff. An originating motion (see RSC O 4 r 1(c)) actually begins a separate proceeding in this court (such as for the commencement of an appeal or the commencement of the application seeking one of the prerogative writs) which is given a separate action number as, indeed, this one now has.
What O 67 r 5 contemplates, if a proposed writ is rejected at the registry, is an application being made ex parte to a judge or to the master for a ruling upon whether or not leave should be given to proceed the initially lodged writ ‑ which to that point has not been accepted by the court.
Here, Mr Opperman, acting in person, filed a notice of originating motion and he appended within it his further document called 'Writ of Summons'. Plainly that proposed appended writ of Mr Opperman has not yet been accepted and filed in this court.
By the terms of Mr Opperman's notice of originating motion, he seeks two things. First, he seeks the leave of the court to have a judge from another State or Territory preside over the action which is the subject of his attached writ. Second, Mr Opperman seeks the leave of the court to file that attached writ.
Dealing with the leave that is sought in respect of having a judge from another State or Territory preside over the subject matter of the attached writ, this request was the subject of elaboration in a written document which was emailed to my associate by Mr Opperman over the preceding weekend.
By that document, commencing at par 194 on page 55, Mr Opperman articulates at length his theories of bias and how people might act with bias without even knowing it. At par 195, he gives an example of a judge presiding over a criminal trial where the daughter of the judge is a victim and he says, 'the Supreme Court and the people you work with or have worked with are like family, you know them at a personal level.' He next says at par 196:
The State is a very large entity with many branches of responsibility and in this case I am suing a retired judge who happens to have worked for the same state branch I am suing. Namely, the Supreme Court of Western Australia.
He continues:
Am I the only one who can see a conflict of interest here?
At par 197, he says:
I have requested an interstate judge, but I am not going to further argue this point. The decision to allow or disallow a neutral judge is entirely yours. Your reputation and the reputation of the Supreme Court is at stake.
Following at par 198:
All I am going to say is that I applied for an unbiased, neutral judge and it was either accepted or it was not. In fact, I should not even have to make this request, it should be obvious and automatic.
Mr Opperman continues beyond par 199 through to par 202, to which I do not need to refer.
Plainly, the two leave questions now arising are related. The relationship arises out of what looks to be the proposed cause of action Mr Opperman is seeking the court's leave to pursue by his proposed writ if it is allowed to be filed. There is some insight about all that from the terms of the proposed indorsement which one finds to his proposed writ.
I am of the view that there is no need for an interstate judge made out. Nor do I see a basis for me to disqualify myself from dealing with this present application for leave, predicated on the fact that a nominated proposed third defendant is a retired judge of this court - being the judge (EM Heenan J) who decided Mr Opperman's case or, more correctly, upheld pleading strikeout applications brought against Mr Opperman's pleading on 4 February 2011, under published reasons for decision, Opperman v The State of Western Australia [2011] WASC 25.
His Honour's reasons for decision are a matter of public record. They are fully comprehensive. His Honour determined that leave ought not be granted to Mr Opperman to re‑plead a defective pleading, namely the statement of claim, as it was in its then form. His Honour's reasons in that respect are found between pars 91 through 98 of that decision. They speak eloquently for themselves. Mr Opperman, at that time, was acting in person ‑ as he is now.
I add, however, with those reasons delivered in February 2011, that there was subsequently no appeal ever lodged or pursued in respect of those strike out determinations. The 2011 determinations effectively brought Mr Opperman's action CIV 2220 of 2009 to an end.
The issue now sought to be ventilated by Mr Opperman by the terms of the draft writ, if allowed, is whether there is some ostensible bias or even actual bias on my part, or in the other judges of this court, requiring our plenary disqualifications from hearing the present application in lieu of an interstate judge. That is something I have now evaluated - but reject as unjustified and inappropriate.
The test for ostensible bias is whether a reasonable person who is a neutral observer, seeing everything, would think that there is a basis to believe that a judge hearing their case or application might not bring an impartial or unbiased mind to a determination of a matter.
Here, the essence of Mr Opperman's request for an interstate judge is only that as Heenan J was, until the time of his retirement in June 2015, a member of this court, that therefore he is, in effect, 'one of the family', so that the present justices of the court would likely render a partisan determination against Mr Opperman by reason of a former curial occupation, alone.
That bias argument is of no merit. Courts routinely deliberate upon the decisions of other justices of this court. The fact that Heenan J was a member of the court until his 2015 retirement and decided a pleadings strikeout application against Mr Opperman is a wholly insufficient basis to reasonably believe that all members of this court (including myself) would likely be biased in the eyes of a neutral observer. I do not accept that submission. Consequently, I have proceeded to sit and determine the residue of Mr Opperman's present application seeking leave to file his proposed writ.
Mr Opperman appearing in person today has not elaborated beyond his written notes I received over the weekend. That leads me to the substance of his arguments in respect of the leave for his proposed writ that is now sought by Mr Opperman, substantively under par 2 of his notice of originating motion.
Mr Opperman filed a notice of originating motion. It has been served upon the first defendant - that is, on The State of Western Australia - as respondent. As Mr Opperman filed a notice of originating motion, it has been made returnable before me today - in open court. Ms Thatcher has appeared as counsel on the part of The State of Western Australia as the named respondent given notice of Mr Opperman's originating motion.
Ms Thatcher provided the court the benefit of helpful written submissions in respect of the State's opposition to any grant of leave to Mr Opperman. A comprehensive list of authorities in support of those submissions, which I have read, has also been provided.
The State's written submissions have been provided to Mr Opperman. The written document that was received from Mr Opperman over the weekend has numerous paragraphs that were 'cut and pasted' out of the State's submissions in Mr Opperman's attempt to respond.
However, the fundamental and residual problem, always bearing in mind Mr Opperman is not legally represented, is with Mr Opperman's submission that Heenan J lacked any jurisdiction in 2011. This deficiency recurrently presents as an insurmountable obstacle for Mr Opperman in his seeking to pursue a truncated proceeding both against the State and against the Hon EM Heenan, as defendants, with his Honour named as proposed third defendant to the proposed writ.
The inescapable problem is that his Honour plainly did not lack jurisdiction to render the determinations made and explained under his reasons for decision and the subject of consequent orders upon those reasons of 4 February 2011.
Judges of this court, by reason of RSC O 20 r 19 and also the court's inherent jurisdiction, plainly do hold the jurisdiction to determine pleading strike out applications of the nature that Heenan J resolved against Mr Opperman in 2011. Judges of this court are plainly empowered to render such determinations and, as his Honour did, to order that there should be no further leave to Mr Opperman to make any further amendments to his pleading (statement of claim), thereby in effect bringing to an end those proceedings.
The proposed writ, in respect of which leave is now sought to issue under Mr Opperman's notice of originating motion, seeks to circumvent the obstacle now identified by invoking on the proposed writ what is a ritualistic formula. Mr Opperman, in effect, refers to his Honour (and the State) as 'knowingly exceeding' jurisdiction and exercising powers that his Honour is said not to have held in giving that 2011 judgment. That, in the end, is a hopelessly misconceived proposition. His Honour plainly did have the power as well as the jurisdiction to reach the conclusions that he did in 2011. No appeal against them has been advanced and they stand as a full force and effect accordingly.
This is not anything that comes close to being a case of a judge exceeding jurisdiction while exercising judicial functions - knowingly or otherwise. On that fundamental flaw, a refusal of leave to Mr Opperman to file the proposed writ and a dismissal of this originating motion, in my view, must follow.
The related problem for Mr Opperman is that, with the reasons of his Honour of February 2011 never having been appealed within time or at all, that they stand as the orders and determinations of a superior court of record. The attempt to undermine them collaterally by contending for negligence by a judge or matters of that kind, as is seen on Mr Opperman's papers, is misconceived and is doomed to failure.
At common law a justice of this court simply cannot be sued for negligence over decisions they reach. The present would be a paradigm example of an impermissible collateral attack upon a decision. Mr Opperman's attempt here to invoke the formula, 'knowingly exceeded his jurisdiction' is an attempt to open a window to get around the obstacle by an attempted invocation of observations made by the New South Wales Court of Appeal in passages from Rajski v Powell (1987) 11 NSWLR 522.
If proper attention is given to the reasons of the court in Rajski, it may be seen that the key observations were by his Honour, Priestley JA, starting at page 537. They were the orders and reasons agreed with by Hope JA, at page 537. What Priestley JA observed upon at page 540 concerned, hypothetically, the scenario of a judge knowingly acting without jurisdiction.
In Rajski those hypothetical observations reflected in the orders eventually made, giving an opportunity to that plaintiff to file some further evidence predicated upon a hypothesis of some possible claim of that kind.
For the present case, Mr Opperman's attempt to ritualistically call in aid the terminology of knowingly acted in excess of jurisdiction, fails at the outset. Plainly here, there was never any lack of jurisdiction in Heenan J in his determinations and reasons that were reached in [2011] WASC 25.
There is, as I also observed, presently a lack of any affidavit filed by Mr Opperman to support this application, as contemplated under O 67 r 5. What has been received effectively is merely a long written submission by Mr Opperman articulating some rather extreme assertions at various places. That does not constitute evidence. It is not admissible evidentiary material. Taken at its best, a reference at par 9 and references to a 'JQ' as referred, constitute unsourced hearsay at best. They provide zero foundational basis for an order of the nature as seen at the end of the Rajski reasons of Priestley JA.
In all the circumstances then, I would refuse leave in respect of Mr Opperman filing the attached proposed writ to his originating motion in CIV 3232 of 2016. The consequence is that these proceedings brought by notice of originating motion must be dismissed.
In relation to costs, the difficulty is that what Mr Opperman filed here, quite irregularly, was a notice of originating motion with a proposed writ. So what happened is that he has begun a fresh proceeding, which is CIV action number 3232 of 2016.
I am not sure how Mr Opperman managed all that with the Central Office. I certainly do not endorse it as any proper mechanism of procedure for the future. The consequence was that notice was given to the respondent to the originating motion, the State of Western Australia.
I think this is a somewhat unprecedented scenario. Things have somewhat gone haywire procedurally, in terms of Mr Opperman's issue of an originating motion with a proposed writ of summons appended and the seeking leave to file that writ. What ought to have happened is that there ought to have been an in chambers interlocutory motion, which is a creature of an entirely different character (see RSC O 4 r 2(b) and O 59 r 3(1)(a)), referred to a judge in chambers or the master to deal with the issue of leave to issue the proposed writ which looks to have been rejected by the registry of the court at an earlier attempt to file it.
That is not what has happened. In the circumstances, the originating motion came to be served on the State. That was fully understandable, given it refers to notice being given of Mr Opperman's application.
I note what Ms Thatcher on behalf of the State has said in seeking an order for costs. I have, as previously noted, been most helpfully assisted by her submissions in preparing for this application.
But in all the circumstances, I will not make an order for costs against Mr Opperman. First, I simply issue an order that leave in the two respects sought under the notice of originating motion of Mr Opperman be refused for the reasons which I have articulated.
Secondly, I will order that this notice of originating motion do be dismissed as of now.
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