P Vivante and Co Pty Ltd v Yap [No 2] - [2011] WADC 166

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION: PERTH

CITATION: P VIVANTE & CO PTY LTD -v- YAP [No 2] [2011] WADC 166

CORAM: DAVIS DCJ

HEARD: 30 SEPTEMBER 2011

DELIVERED : 30 SEPTEMBER 2011

FILE NO/S: CIV 1536 of 1989

BETWEEN: P VIVANTE & CO PTY LTD
Plaintiff
AND
CHENG SEE YAP
Defendant

Catchwords:

Practice and procedure - Application by defendant to set aside default judgment from 1989 - Abuse of process - Leave of a judge required to issue application

Legislation:

Rules of the Supreme Court 1971 O 67 r 5

Result:

Leave to file application refused

Representation:

Counsel:

Plaintiff: Not applicable
Defendant: In Person

Solicitors:

Plaintiff: Not applicable
Defendant: Not applicable

Case(s) referred to in judgment(s):

Granich Partners v Yap [2003] WASC 206
P Vivante & Co Pty Ltd v Yap [2007] WADC 149
Yap v Australian Securities and Investment Commission [2008] FCA 534
Yap v P Vivante & Co Pty Ltd (Unreported, WASCA, Library No. 930339, 10 June 1993)
Yap v P Vivante & Co Pty Ltd [2007] WASCA 287

DAVIS DCJ: [This judgment was delivered extemporaneously on 30 September 2011 and edited from transcript.]

The defendant, Mrs Yap, has, by a chamber summons dated 25 August 2011, sought orders to set aside default judgment entered against her over 22 years ago on 10 April 1989.
The chamber summons is before me pursuant to the Rules of the Supreme Court 1971 O 67 r 5. It has been referred to a judge of this court because it appears to the principal registrar that the chamber summons is an abuse of the process of the court. He has accordingly refused to file and issue the chamber summons without Mrs Yap first obtaining the leave of a judge.
The chamber summons seeks orders that:
1.Default judgment entered 10 April 1989 be set aside unconditionally;
2.Any other orders as the court thinks just; and
3.The plaintiff do pay the defendant's out of pocket expenses as the court sees fit.
Mrs Yap was, in fact, successful in setting aside the default judgment in 1992, but it was set aside conditionally. By orders made on 23 June 1992, she was given leave to defend the action on conditions, including payment of the sum of $39,000 into court within 14 days from the date of the order, the filing of an appearance within three days, and the filing of a defence within 10 days from the date of the order. It was further ordered that in the event that the $39,000 was not paid into court within the time specified, the plaintiff had liberty to enter judgment.
Other than the filing of an appearance, Mrs Yap did not comply with the conditions, and so judgment in the action was entered against her in favour of the plaintiff on 25 August 1992.
Mrs Yap was unsuccessful in her attempt to appeal from the orders made by the registrar on 23 June 1992; taking the matter first to a District Court judge, Judge Viol, who on 21 August 1992 dismissed Mrs Yap's application for leave to appeal out of time from the registrar's orders. Mrs Yap appealed from Judge Viol's decision to the Full Court of the Supreme Court which dismissed her appeal: see Yap v P Vivante & Co Pty Ltd (Unreported, WASCA, Library No. 930339, 10 June 1993).
Since then, Mrs Yap has, on more than one occasion, brought applications to seek to set aside the default judgment entered on 10 April 1989. Most recently, on 6 July 2007, Judge O'Brien dismissed an application by Mrs Yap to set aside the default judgment. Judge O'Brien held that Mrs Yap's application was both misconceived, as the judgment had already been set aside on conditions which had not been complied with, and an abuse of the court's process: see P Vivante & Co Pty Ltd v Yap [2007] WADC 149.
Mrs Yap appealed Judge O'Brien's decision. On 19 December 2007, the Court of Appeal dismissed Mrs Yap's appeal: see Yap v P Vivante & Co Pty Ltd [2007] WASCA 287.
The chronology of this action and the number of applications and appeals which Mrs Yap has brought in her many attempts to set aside the default judgment entered on 10 April 1989 are set out in Judge O'Brien's judgment in P Vivante & Co Pty Ltd v Yap, and I do not intend to repeat them.
Mrs Yap has filed, for the purpose of today's hearing, two lengthy affidavits; one sworn 25 August 2011, and another sworn 12 September 2011. Both attach a vast number of documents. The second affidavit sworn 12 September 2011 is presented, in her words, to 'satisfy the judge that leave should be given to issue the chamber summons dated 25 August 2011'.
I have read these affidavits. In both, Mrs Yap refers to the actions said to be taken or not taken by her former solicitors, Granich & Co. That indeed is the focus of her first affidavit sworn 25 August 2011. In the second affidavit of 12 September, Mrs Yap sets out a long history of a number of matters. All of the matters which Mrs Yap has referred to in these two affidavits have been the subject of proceedings in this court, the Supreme Court, and the Federal Court.
Among the proceedings referred to by Mrs Yap in her second affidavit of 12 September 2011 are Federal Court proceedings where, at par 15 of her affidavit, she says:
This is my reason for abuse of process for being ignored for some 20 years till Justice French in FWAD 246 of 2007 in his judgment require fresh evidence to release me of my sufferings as a result of this gross injustice in District Court 1536/89.
The reference to District Court 1536 of 1989 is, of course, a reference to this action number. Mrs Yap suggested to me in her oral submissions today that French J had mentioned or allowed her to lead fresh evidence.
There is a judgment of French J in Federal Court No. WAD 246 of 2007. It is reported as Yap v Australian Securities and Investment Commission [2008] FCA 534. That case concerned an application brought by Mrs Yap for the re‑instatement of a deregistered company, Cheshire Securities Pty Ltd. Mrs Yap's application was dismissed by his Honour Justice French, both under s 31A of the Federal Court Australia Act 1976 (Cth), and on the basis that it was an abuse of process. At [13], French J stated he was satisfied that Mrs Yap has 'habitually, persistently, and without reasonable grounds, instituted vexatious proceedings in this and the Supreme Court of Western Australia'. He directed that in future Mrs Yap may not institute a proceeding in the Federal Court without the leave of that court.
Mrs Yap has, as I have already mentioned, claimed in both affidavits that the solicitors who were acting for her in this District Court action failed to put before this court her arguable defences that, in her words, 'proved the plaintiff's claim in this action is false', and thereby her abuse of process is justified.
In her oral submissions to me today when I asked her what new evidence she had which had not been before the court in 2007 when she had last made application to set aside default judgment, she said that her former solicitors did not comply with the orders of the registrar made on 13 June 1992 and there had been a failure of the solicitors to put her arguments to the court.
There are at least two difficulties with this. First, as set out by Judge O'Brien in P Vivante & Co Pty Ltd v Yap at [15] and [16], Mrs Yap's defence to the plaintiff's claim in this action was examined by the Full Court of the Supreme Court of Western Australia in Yap v P Vivante & Co Pty Ltd and was found to be shadowy.
Secondly, Mrs Yap has repeatedly but unsuccessfully attempted to assert that her former solicitors were negligent or otherwise in breach of duty when acting for her in this action. In this regard, I have read the judgment of his Honour E M Heenan J in Granich Partners v Yap [2003] WASC 206, which sets out the history of both this action and the unsuccessful proceedings brought by Mrs Yap against her former solicitors, leading to an order made against Mrs Yap pursuant to the Vexatious Proceedings Restriction Act 2002 (WA). Her claims against her former solicitors were dismissed by Commissioner Martin QC in this court on 7 May 1996. Her appeal from that decision was dismissed by the Full Court of the Supreme Court of Western Australia, and the High Court refused her application for special leave to appeal from the Full Court's decision. Heenan J also sets out other Federal Court proceedings in which Mrs Yap has sought to raise the same or similar issues.
Mrs Yap has failed to satisfy me that leave should be given to issue the chamber summons dated 25 August 2011. There is, in my view, nothing in her affidavits which raises any matter which has not been fully ventilated and determined by this court, the Supreme Court or the Federal Court.
The application which Mrs Yap now wants to bring by her chamber summons dated 25 August 2011 is a repeat application seeking the same order to set aside the default judgment which was last dealt with and dismissed by each of Judge O'Brien and the Court of Appeal in 2007. This chamber summons dated 25 August 2011 is clearly an abuse of process and is bound to fail.
Accordingly, I refuse leave to Mrs Yap to file her chamber summons in relation to the default judgment entered on 10 April 1989.
The order I make is that leave to file the chamber summons dated 25 August 2011 is refused.