Patrick Jebb as trustee of the Trafalgar West Investments Trust v Norwestern Cove Pty Ltd - [2020] WASC 142

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PATRICK JEBB as trustee of the TRAFALGAR WEST INVESTMENTS TRUST -v- NORWESTERN COVE PTY LTD [2020] WASC 142
CORAM:   HILL J
HEARD:   15 APRIL 2020
DELIVERED          :   6 MAY 2020
FILE NO/S:   COR 15 of 2020
BETWEEN:   PATRICK JEBB as trustee of the TRAFALGAR WEST INVESTMENTS TRUST
Plaintiff
AND
NORWESTERN COVE PTY LTD
Defendant

Catchwords:

Procedure - Application for permanent stay of proceedings - Abuse of process - Whether current proceedings are re-litigation of two earlier proceedings - Whether current claims could and should have been litigated to finality in either or both of the earlier proceedings - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4A and r 4B

Result:

Application for permanent stay of proceedings granted

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Mr M L Bennett

Solicitors:

Plaintiff	:	Jebb Legal
Defendant	:	Bennett + Co

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

Commonwealth Bank of Australia v Bride [2004] WASC 177
Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123
Jebb v Superior Lawns Australia Pty Ltd [2019] WASC 121
Jebb v Superior Lawns Australia Pty Ltd [2019] WASCA 208
Mineralogy Pty Ltd v Sino Iron Pty Ltd [2020] WASC 40
Sinclair v British Telecommunications plc [2000] 2 All ER 461
Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 7) [2015] WASC 280
UBS AG v Tyne [2018] HCA 45; (2018) 360 ALR 184

HILL J:

Introduction

On 4 February 2020, the plaintiff, Mr Jebb, in his capacity as trustee of the Trafalgar West Investments Trust (TWIT), commenced proceedings against Norwestern Cove Pty Limited (Norwestern Cove), a shareholder in Superior Lawns Australia Pty Ltd (Superior Lawns). While the proceedings are entitled 'In the matter of Superior Lawns Australia Pty Ltd', Superior Lawns is not a defendant to the proceedings. Notwithstanding that, the proceedings allege oppressive conduct in respect of the affairs of Superior Lawns and seek relief under s 233 of the Corporations Act 2001 (Cth).
Specifically, the plaintiff seeks declaratory relief in respect of a rights issue undertaken by Superior Lawns in May 2011 and the subsequent transfer on 22 July 2016 of shares issued under that rights issue to Norwestern Cove. The plaintiff seeks a declaration that Norwestern Cove holds approximately 46% of these shares on trust for the plaintiff, alternatively, a declaration that the plaintiff is entitled to beneficial ownership of 30% of all ordinary shares on issue in Superior Lawns.
Shortly after the commencement of the proceedings, Norwestern Cove sought orders for the proceedings to be adjourned pending the outcome of proceedings in the Federal Court and a special leave application filed by the plaintiff in the High Court of Australia. Subsequently, on 10 March 2020, Norwestern Cove filed a minute of orders seeking, in the alternative, a stay of the proceedings.
The basis for the defendant's application is that the allegations raised by the plaintiff in these proceedings are identical to allegations of oppression raised in two previous proceedings commenced in this court in respect of Superior Lawns; one by the former trustee of the Trafalgar West Investment Trust (COR 59 of 2011) (2011 Proceedings) and the other by the plaintiff in his own right (COR 177 of 2018) (2018 Proceedings).
The 2011 Proceedings were deemed to have been dismissed for want of prosecution on 25 July 2018. Shortly after this, in October 2018, the plaintiff commenced the 2018 Proceedings.
The 2018 Proceedings were dismissed in July 2019 following the failure of the plaintiff to comply with orders made by Justice Vaughan on 17 April 2019 as varied on 17 July 2019. The plaintiff unsuccessfully sought leave to appeal this decision[1] and has now filed an application for special leave in the High Court.[2]
[1] Jebb v Superior Lawns Australia Pty Ltd [2019] WASCA 208 (2018 Proceedings appeal decision).
[2] Affidavit of Alexander James Tharby filed 19 February 2020 [16].
The substantive merits of the dispute between the plaintiff, Superior Lawns, the members of the Flugge family and the current defendant has never been tried.
In April 2019, less than 12 months prior to the hearing before me, Justice Vaughan delivered comprehensive reasons for his decision on an almost identical application in the 2018 Proceedings.[3] As his Honour noted, the parties' dispute, which had by then 'spawned 24 written decisions' had already 'consumed a disproportionate share of the court's resources'.[4] Since then, a further two decisions have been delivered: the decision of Justice Vaughan on 17 April 2019 and the decision of the Court of Appeal on 12 December 2019.
[3] Jebb v Superior Lawns Australia Pty Ltd [2019] WASC 121 (2018 Proceedings decision).
[4] 2018 Proceedings decision [9].
In these circumstances, to facilitate the hearing of this application in a timely and cost efficient manner in accordance with the objects of the Rules of the Supreme Court (Rules), O 1 r 4B, I ordered that the affidavits read and tendered in evidence in the application before Justice Vaughan stand as evidence in these proceedings for the purposes of the defendant's application. The parties had the opportunity to file any additional affidavits in respect of the application and both availed themselves of this opportunity. The affidavits relied on by the parties in respect of the application are set out in the schedule to these reasons.
As has been previously noted by the court,[5] while the plaintiff is a self‑represented litigant, he is also a legal practitioner and carries on business as a legal practitioner. Even though he is representing himself in these proceedings, as a practitioner of the court, the plaintiff is required to observe the same professional and ethical standards as any other legal practitioner.
[5] 2018 Proceedings decision [6].
For the reasons which follow, I consider that the continuation of these proceedings constitutes an abuse of the process of the court warranting a permanent stay of these proceedings.

Background to the litigation

A brief summary of the relevant background to the dispute concerning the rights issue is as follows. This summary has been drawn from the decision of the Court of Appeal on 19 July 2018[6] and the 2018 Proceedings decision.
[6] Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123.
In March 2011, Margaret Flugge, as company secretary of Superior Lawns, wrote to the former trustee of the TWIT, indicating that the board of Superior Lawns had resolved to raise additional working capital by way of a pro rata rights issue at an issue price of $0.10 per share (Rights Issue).
In March 2011, the former trustee of the TWIT, Trafalgar West Investments Pty Ltd, commenced the 2011 Proceedings against Superior Lawns and five members of the Flugge family. Norwestern Cove was not a party to those proceedings.
On 25 March 2011, EM Heenan J granted an interim injunction restraining Superior Lawns from proceeding with the Rights Issue.
On 21 April 2011, the interim injunction was discharged subject to an undertaking being provided by Superior Lawns. The undertaking required Superior Lawns:
(a)to inform the former trustee of the TWIT within seven days of the rights issue being completed of the identity of the persons who were issued shares under the Rights Issue;
(b)not to discharge certain loan accounts following receipt of funds pursuant to the Rights Issue; and
(c)not to declare or pay any dividend on any shares issued pursuant to the Rights Issue until further order of the court.
On 25 May 2011, Superior Lawns advised the former trustee of the TWIT that on 3 May 2011, Kingsley Flugge and Margaret Flugge as trustees for the Jacaranda trust had applied for 3,495,652 shares and that this share subscription had been partly funded in cash and partly by converting a loan provided by Margaret Flugge. The former trustee of the TWIT did not take up the Rights Issue. As a consequence, the effect of the issue of the shares to the Flugges under the Rights Issue was to dilute the shareholding of the former trustee of TWIT in Superior Lawns from 30% to approximately 0.01%.
On 26 October 2011, Mr Jebb, acting as appointor of the TWIT, substituted himself as trustee of the TWIT. On 8 December 2011, a share transfer form was signed and on 9 January 2012, Mr Jebb was registered as the holder of these shares in the share register of Superior Lawns.
Significant time and resources were spent after this date on various interlocutory applications in the 2011 Proceedings, including applications to substitute Mr Jebb as the plaintiff in these proceedings, security for costs, amendments to the pleadings, and disputes between Mr Jebb and his litigation funder. The applications are summarised in the schedule of the 2018 Proceedings decision. When the application to substitute Mr Jebb as plaintiff in the 2011 Proceedings was unsuccessful, the original trustee was reappointed as trustee of the TWIT and re‑entered in the share register of Superior Lawns.
In December 2016, the original trustee resigned as trustee of the TWIT and Mr Jebb was again appointed. On 8 February 2017, the members of the original trustee resolved to wind up that company and appoint liquidators.
On 18 January 2018, the case manager of the 2011 Proceedings ordered that the proceedings be placed on the Inactive Cases List. On the same date, notice was provided to the parties of that fact as well as the effect of O 4A r 28 of the Rules. Over the six months that followed, the plaintiff made a number of applications including an application to substitute Mr Jebb as plaintiff in the 2011 Proceedings and for the 2011 Proceedings to be removed from the Inactive Cases List. None of these applications were successful.
On 18 July 2018, the 2011 Proceedings were deemed to have been dismissed.
On 12 October 2018, the plaintiff commenced the 2018 Proceedings against Superior Lawns, five members of the Flugge family and Norwestern Cove.
Shortly after the commencement of the 2018 Proceedings, the defendants filed an application for a permanent stay of those proceedings on the basis that the proceedings were said to be an abuse of the process of the court. Alternative relief was sought for the 2018 Proceedings to be stayed until the likely taxed costs of the 2011 Proceedings were paid into court.
The application for a stay was heard by Justice Vaughan on 7 March 2019. In delivering comprehensive and detailed reasons for his decision granting a temporary stay on 17 April 2019, his Honour found that:[7]
The allegations of oppression in the current proceedings substantially mirror those alleged in the earlier proceedings (which had been commenced some seven and a half years earlier in March 2011).
[7] 2018 Proceedings decision [3].
This finding was not challenged by the plaintiff on appeal.[8]
[8] 2018 Proceedings appeal decision [9].
Justice Vaughan ordered a temporary stay of the proceedings until the plaintiff paid the balance of the defendants' costs of the 2011 Proceedings into court. If this balance was not paid within three months of the date of the order, the 2018 Proceedings were ordered to be dismissed.
Prior to 17 July 2019, the plaintiff did not:
(a)pay these costs into court as ordered or at all;
(b)apply to vary the orders of his Honour or to extend the time period within which to make the payment.
As a consequence, in July 2019, the 2018 Proceedings were dismissed.
The plaintiff sought leave to appeal his Honour's decision to grant a temporary stay. On 12 December 2019, his application was heard and dismissed by the Court of Appeal. On 9 January 2020, the plaintiff applied to the High Court for special leave to appeal the decision of the Court of Appeal.[9] At the date of the hearing before me, the application had not been heard or determined.
[9] Affidavit of Alexander James Tharby filed 19 February 2020 [16].
On 10 May 2019, Superior Lawns and the Flugges served a bankruptcy notice on the plaintiff (Bankruptcy Notice). The Bankruptcy Notice related to costs orders in CIV 1704 of 2018 and CACV 58 of 2018 which had been assessed in April 2019.[10]
[10] Affidavit of Alexander James Tharby filed 19 February 2020 [10] ‑ [11], 'AJT-3'.
On 30 May 2019, the plaintiff commenced proceedings in the Federal Court, being proceedings WAD 302 of 2019, seeking orders to set aside the Bankruptcy Notice.[11] This application was heard and dismissed on 6 December 2019.[12] On 20 December 2019, the plaintiff applied for a review of this decision.[13]
[11] Affidavit of Alexander James Tharby filed 19 February 2020 [12].
[12] Affidavit of Alexander James Tharby filed 19 February 2020 [13], 'AJT-4'.
[13] Affidavit of Alexander James Tharby filed 19 February 2020 [15], 'AJT-6'.
On 24 January 2020, Superior Lawns and the Flugges issued a creditors' petition against the plaintiff relying on the plaintiff's failure to comply with the Bankruptcy Notice (Creditors' Petition).[14] The Creditors' Petition is listed for hearing, together with the application for review, on 24 June 2020.[15]
[14] Affidavit of Alexander James Tharby filed 19 February 2020 [17], 'AJT-8'.
[15] Affidavit of Alexander James Tharby filed 27 March 2020 [7].
On 4 February 2020, the plaintiff commenced these proceedings and seeks orders for an urgent trial to be heard and determined prior to the hearing in the Federal Court on 24 June 2020. The plaintiff's stated purpose in commencing the proceedings, as set out in his affidavit filed 4 February 2020, is to:[16]
(a)allow me to either sell part of the Trusts shareholding, or secure loan funds against the Shares, to enable me to pay unpaid costs orders from prior proceedings and fund either the continuation of COR 177 of 2018 (if my appeal to the High Court is upheld) or support a fresh application over the [related party property transactions and shareholder loans disputes].
(b)ensure control of [Superior Lawns] cannot be transferred to third parties without my knowledge or consent pending the [related party property transactions and shareholder loans disputes] being determined at a trial in separate proceedings;
(c)restore my right to seek audited accounts and directors' reports (pursuant to section 293 of the Act) and request general meetings of [Superior Lawns] be held to assist me oversee the Trust's investment in [Superior Lawns] and scrutinise related party dealings between [Superior Lawns] and [Norwestern Cove]; and
(d)restore the value of the Trust's assets to enable me to resist, or satisfy, any security for costs orders in the above applications.
[16] Affidavit of Patrick Gerard Gladwyn Jebb filed 4 February 2020 [10]. See also plaintiff's submissions filed 10 April 2020 [5].
The plaintiff also intends to seek orders in separate proceedings to release Superior Lawns from its undertaking not to declare dividends so that any dividends can be used to fund any costs orders and the proposed applications.[17]
[17] Affidavit of Patrick Gerard Gladwyn Jebb filed 4 February 2020 [11].
At the hearing, the plaintiff informed me that if he was successful in these proceedings, he will pay the outstanding costs of Superior Lawns previously awarded against the former trustee. In this regard, he contended that Superior Lawns would benefit from these proceedings and that he did not understand why it was opposed. I note that this submission assumes that the plaintiff would be successful in these proceedings and is dependent on the defendant being unsuccessful in the current proceedings.

Claim in the 2011 Proceedings

In the 2011 Proceedings, the former trustee of the TWIT sought orders pursuant to s 232 and s 233 of the Corporations Act seeking, inter alia, a declaration of oppressive conduct.[18]
[18] Affidavit of Alexander James Tharby filed 8 November 2018 [12], 'AJT-6' – 'AJT-7'(Further Amended Originating Process (pursuant to leave granted on 12 August 2015)).
As was noted by the case manager of the 2011 Proceedings, the originating process raised two different 'baskets' of oppression claims:[19]
[The] first 'basket' of statutory oppression grievances concerns wrongs alleged to have been directly perpetrated by one or other of the defendants against Trafalgar, qua that corporation being a minority shareholder in Superior Lawns (initially a 20% shareholder from 16 June 2006, but later rising to become a 30% shareholder from 16 December 2008, before the contentious rights issue of 2011 saw Trafalgar's proportionate shareholding in Superior Lawns diminish to an infinitesimal level).
…
The second 'basket' of oppression grievances articulated by Trafalgar … seeks to complain of derivative, or quasi‑derivative, wrongs which Trafalgar would seek to ventilate at a trial, in effect, as the causes of action of Superior Lawns which are directed against various defendants. This is done only in a context of Trafalgar seeking the end relief under s 232 / s 233 of the Corporations Act of a court ordered compulsory acquisition order against the defendants for its minority shareholders in Superior Lawns at a 'buy-out' price fixed by the court. These derivative grievances are directed at having the assessed value of the assets of Superior Lawns increased - to take account of the value of such factors, thereby, it would be hoped, pushing up the value of Superior Lawns shares for the purposes of the compulsory 'buy out' relief sought under s 232 / s 233, if Trafalgar wins and gets that far.
[19] Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd (No 7) [2015] WASC 280 [28], [30].
The proceedings specifically raised the Rights Issue and sought orders that any valuation of the shares beneficially owned by the TWIT occur on the basis that the shares issued pursuant to the Rights Issue were to be ignored.[20]
[20] Affidavit of Alexander James Tharby filed 8 November 2018 [12], 'AJT-6' ‑ 'AJT-7'(Further Amended Originating Process (pursuant to leave granted on 12 August 2015)).

Claim in 2018 Proceedings

In the 2018 Proceedings, the plaintiff brought an application pursuant to s 233 of the Corporations Act seeking a declaration of oppressive conduct. The plaintiff sought, inter alia, an order that:[21]
the shares transferred to Norwestern Cove Pty Ltd be deemed to be held as to 46% on behalf of the plaintiff (on the basis that the pre-emption clause of [Superior Lawn's Constitution] was complied with) or alternatively on the basis that the shares issued pursuant to a rights issue completed in 2011 be ignored (such that the plaintiff's shares are deemed to be 30% of the issued capital of [Superior Lawn]).
[21] Affidavit of Alexander James Tharby affirmed 19 February 2020 'AJT-1'.
Justice Vaughan summarised the claims of oppressive conduct as falling within 10 different heads. Relevantly these included:[22]
(6)An alleged improper 2011 rights issue whereby [Superior Lawns] allotted approximately 3.5 million ordinary shares at 10 cents a share. It is alleged by Mr Jebb that this occurred at an undervalue and diluted the TWIT's then shareholding to the negligible level of about 0.01% of the issued shares.
…
(10)The transfer to [Norwestern Cove] of all of the shares in [Superior Lawns] (other than those held by Mr Jebb). It appears to be alleged that Norwestern Cove took the shares in breach of certain rights of pre-emption.
[22] 2018 Proceedings decision [36].
His Honour expressed a provisional view of the strength of the rights issue claim as follows:[23]
My provisional view of the strength of the rights issue claim is more optimistic than my provisional view in relation to the Sydney Road property claim.
Again, the rights issue claim may have issues as concerns discretionary relief. Mr Jebb was not a member at the time of the rights issue. And the allotment occurred in May 2011. However, the rights issue was plainly extremely dilutive. It resulted in TWI holding less than 0.01% of the shares on issue whereas previously it had held a 30% interest. The issue effectively valued the prior shares on issue ‑ 1,150 ordinary shares - at a mere $115.00. It put a negligible value on TWI's then shareholding.
The notice of offer in respect of the rights issue said that it was to provide $1 million in additional working capital to meet costs of litigation, repayment of related party loans and operations. An undertaking provided restricted [Superior Lawns] from repaying disputed related party loans. In fact the rights issue resulted in the allotment of 3,495,652 shares at 10 cents a share. A report from an accounting firm suggests that there is some inconsistency in [Superior Lawns'] financial reports as to the amount received in cash for the rights issue. A statement of cashflows refers to an amount of $349,565 whereas a directors' report mentions only $200,000 with the balance being raised by the discharge of a shareholder loan.
Mr Jebb adduces evidence that about two months after the rights issue [Superior Lawns] borrowed a further $400,000 to meet similar objects as were said to have been the subject of the rights issue.
Proceeding with the rights issue, and its extreme dilutive effect, in circumstances where the company was able to obtain loan funds for the same purposes a little more than two months later, is sufficient to raise a serious issue as to the necessity for the rights issue. When that is coupled with the dilutive effect of the rights issue - and the limited value it placed on the existing shares - I am satisfied that this aspect of the oppression proceedings is reasonably arguable and better than merely weak. That is all the more so when it is plain that the rights issue took place at a time when TWI had already threatened oppression proceedings. (footnotes omitted)
[23] 2018 Proceedings decision [85] - [89].

I note that Justice Vaughan's finding in respect of the strength of this argument (that it was reasonably arguable) was not the subject of a cross‑appeal or any finding of the Court of Appeal.

Claim in these proceedings

In these proceedings the plaintiff again alleges oppressive conduct in respect of the affairs of Superior Lawns and seeks relief under s 233 of the Corporations Act 2001.
Specifically, the plaintiff seeks declaratory relief in respect of the Rights Issue and the subsequent transfer to Norwestern Cove on 22 July 2016 of shares issued under the Rights Issue. The plaintiff seeks a declaration that Norwestern Cove holds approximately 46% of these shares on trust for the plaintiff, alternatively, a declaration that the plaintiff is entitled to beneficial ownership of 30% of all ordinary shares on issue in Superior Lawns. No orders are sought for the purchase of the plaintiff's shares in Superior Lawns.
As noted above, the purpose of the proceedings is to restore the plaintiff's interest in Superior Lawns to 30% which will enable the plaintiff to either sell part of his shareholding or obtain a loan, secured against the shares.
Prior to the hearing of the application, the plaintiff filed further evidence and submissions concerning recent events in respect of Superior Lawns that he had recently become aware of.[24] No amended originating process was filed prior to the hearing.
[24] Fourth affidavit of Patrick Gerard Gladwyn Jebb filed 8 April 2020; Plaintiff’s outline of submissions filed 10 April 2020.
Superior Lawns is not a party to these proceedings. The defendants contend that Superior Lawns should have been joined as a party and that the failure to do so was a tactical decision by the plaintiff to avoid the costs consequences of the previous proceedings.
The plaintiff denied that this was the case and submitted that Superior Lawns was not a necessary party as no orders were sought against it in the originating process. The plaintiff submitted that it did not join Superior Lawns to ensure that the company did not incur any further costs and so that it did not pay the costs of Norwestern Cove's defence.[25]
[25] ts 10 ‑ 11.
The additional claims raised by the plaintiff concern agreements which Superior Lawns is said to be a party to and recent decisions made by the directors of Superior Lawns. My preliminary view, without reaching any conclusion, is that (at least) Superior Lawns would be a necessary party to these additional claims.
At the commencement of the hearing, the plaintiff was afforded the opportunity to seek an adjournment of the hearing to enable him to amend the originating process and join any necessary parties, such as Superior Lawns, to these proceedings. The plaintiff did not apply for an adjournment. He expressly accepted that the application should be heard and determined on the basis of the originating process that had been filed and without regard to these additional claims.[26] As a consequence, in reaching my decision, I have not had regard to the allegations concerning recent events in Superior Lawns and these matters are not the subject of this judgment.
[26] ts 19.
Neither party sought orders to join Superior Lawns to these proceedings. For this reason, I express no concluded view as to whether Superior Lawns should be joined to these proceedings.
As presently framed in the originating process dated 4 February 2020, the claims in these proceedings are identical to the claims of oppressive conduct raised in heads 6 and 10 of the 2018 Proceedings and the 'first basket' of claims raised by the former trustee of the TWIT in the 2011 Proceedings. At the hearing before me, the plaintiff accepted this was the case.[27]
[27] ts 35.
I accept for the purposes of this application that the plaintiff's case in respect of the Rights Issue is reasonably arguable. This is on the basis that:
(a)the Rights Issue significantly diluted the shareholding of the former trustee of the TWIT;
(b)the price at which the Rights Issue occurred effectively valued the plaintiff's shareholding in Superior Lawns at approximately $150;
(c)the Rights Issue only raised $200,000 of the $1 million referred to in the notice of offer for working capital to meet the costs of litigation, repayment of related party loans and operations;
(d)approximately two months after the Rights Issue, Superior Lawns obtained loan funds of $400,000 for similar objects.
In respect of the loan funds, counsel for the defendant submitted that these funds were raised 'to instil … confidence for the bankers and the secured and unsecure lenders in the financial stability and well‑being of [Superior Lawns]'.[28]
[28] ts 24.
The purposes for which these funds were raised is not a matter that I can or should determine on the application before me.

Application for stay

At the hearing before me, counsel for the defendant contended that the proceedings should be permanently stayed as an abuse of the process of the court.
The defendant relied on three related aspects of abuse of process: first, that the plaintiff's claims were made and should have been prosecuted in two sets of earlier proceedings and that it was an abuse of process to raise the same claims in a third set of proceedings; second, the plaintiff is seeking special leave to appeal the 2018 Proceedings which seeks different relief in respect of the same claim; and third, the plaintiff has left a 'carnage of creditors' in his wake and has refused or failed to pay previous costs orders. On these grounds, it was submitted that it would bring the administration of justice into disrepute if the plaintiff were allowed to continue these proceedings.
Counsel for the defendants accepted that consideration of the question of abuse of process is fact specific having regard to the particular circumstances of each case. In this case, counsel for the defendants emphasised that:
(a)the parties to these proceedings were both parties to the 2018 Proceedings, as was Superior Lawns which ought to be joined as a defendant to these proceedings;
(b)the plaintiff had sought to litigate the issues in these proceedings in the 2018 Proceedings. These claims could have been litigated to finality in the 2018 Proceedings. This did not occur as a result of the failure by the plaintiff to comply with orders of the court which included a requirement for payment of the costs of the 2011 Proceedings;
(c)if the plaintiff's application for special leave to appeal to the High Court was successful, there would be two proceedings on foot in respect of the same issues but seeking different relief;
(d)these proceedings were commenced almost two years after the plaintiff became a shareholder of Superior Lawns in his own right, seven months after the dismissal of the 2018 Proceedings and shortly after he was served with the Creditor's Petition;
(e)the plaintiff has conducted serial proceedings which have been dismissed due to the plaintiff's failure to progress the matters to trial;
(f)even if these proceedings are allowed to proceed, they will not finalise the dispute between the parties. In the affidavits filed in support of the originating process, the plaintiff refers to the commencement of separate and additional proceedings after these proceedings have been determined.
The application for a stay was opposed by the plaintiff. He denied that the commencement of these proceedings was an abuse of the process of the court. He contended that he had a strong and meritorious claim that the Rights Issue was completed at an under value and was, as a result, oppressive to his interests. He reiterated that his claim had not been the subject of a determination on the merits.
The plaintiff submitted, both in writing and orally, that the purpose of these proceedings was to raise funds to enable him to repay the costs which underpin the Bankruptcy Notice. On this basis, any stay or adjournment of the proceedings until after the determination of the special leave application and/or hearing in the Federal Court would 'frustrate the entire purpose of the application and stymie the proceedings'.[29]
[29] Plaintiff's submissions [31].
Mr Jebb asserted that in making an order to temporarily stay the 2018 Proceedings, Justice Vaughan had not intended to 'stifle the proceedings'.[30] As was noted by the Court of Appeal, it was and is for the plaintiff to demonstrate his financial incapacity to pay the costs of the 2011 Proceedings and that his Honour had not been satisfied of that incapacity.[31]
[30] Plaintiff's submissions [60] ‑ [61].
[31] 2018 Proceedings decision [202]; 2018 Proceedings appeal decision [27].
In the course of his submissions, Mr Jebb contended that he had not been afforded a 'realistic opportunity' to litigate his claim concerning the Rights Issue as he did not have sufficient resources to fund the action through to trial.[32] Most of his submissions (both written and oral) were directed to the substantive merits of his claim for oppression. However, that was not the application before me and nothing in these reasons constitute a finding on the substantive merits of the plaintiff's claim.
[32] Plaintiff's submissions [53].
The plaintiff submitted that the defendant's application for a stay was itself an abuse of process and that public confidence in the administration of justice may be adversely affected if a stay was granted. This was on the basis that any stay granted by the court would be the result of the high cost of legal proceedings and the better opportunities that well‑resourced litigants have to assert and defend their rights.[33]
[33] Plaintiff's submissions [85].
The plaintiff continued to deny that he was responsible for the delays in the 2011 Proceedings and submitted that the defendants caused most of the delays in progressing these proceedings.[34] A similar submission was made to Justice Vaughan in the application before him. Justice Vaughan rejected that submission and found that substantial parts of the delay were attributable to the former trustee and the plaintiff.[35] This finding was not disturbed on appeal.
[34] Plaintiff's submissions [109].
[35] 2018 Proceedings decision [16].
I accept that the former trustee of the TWIT and the plaintiff were primarily responsible for the failure to progress the 2011 Proceedings. The repeated refusal by the plaintiff, particularly as a legal practitioner, to accept findings of the court or his responsibility to progress the 2011 Proceedings and 2018 Proceedings reflects poorly on him.

Legal Principles

The legal principles that govern this application were not in dispute between the parties.
In UBS AG v Tyne, Kiefel CJ, Bell and Keane JJ stated:[36]
The courts must be astute to protect litigants and the system of justice itself against abuse of process. It is to hark back to a time before this Court's decisions in Aon and Tomlinson … to expect that the courts will indulge parties who engage in tactical manoeuvring that impedes the 'just, quick and efficient' resolution of litigation. To insist, for example, on 'inexcusable delay' as a precondition of the exercise of the power to stay proceedings as an abuse of process is to fail to appreciate that any substantial delay is apt to occasion an increase in the cost of justice and a decrease in the quality of justice. And other litigants are left in the queue awaiting justice. Further, there is no reason why the courts should tolerate attempts to manipulate other parties and the courts themselves by the deployment, by a single directing mind and will, of different legal entities under common control for such a purpose. The concern is as to whether the processes of the court are being abused. Given that this is the central concern, the circumstance that the abuse is effected by the use of multiple entities orchestrated by a single mind and will is no reason to tolerate it.
[36] UBS AG v Tyne [2018] HCA 45; (2018) 360 ALR 184 [45].
They went on to state that:[37]
The fact that UBS is a large commercial corporation does not deny that permitting the Trust's claim to proceed will subject it to unjustifiable oppression. That oppression is found not only in the significant delay in the resolution of the dispute and the inevitability of increased costs to UBS. At its core is the vexation of being required to deal again with claims that should have been resolved in the SCNSW proceedings. The fact that UBS had not been required to admit or defend the Trust's claim does not lessen that vexation. Between December 2010 and May 2013, when the SCNSW proceedings were finally determined, UBS was engaged in litigation with a party controlled by Mr Tyne, arising out of its alleged dealings with Mr Tyne in respect of the loss that is claimed by the Trust in these proceedings. On the final determination of the SCNSW proceedings, it was reasonable for UBS to order its affairs upon the understanding that the dispute between it and Mr Tyne, and the entities that he controlled, arising out of those dealings was at an end.
For the Federal Court to lend its procedures to the staged conduct of what is factually the one dispute prosecuted by related parties under common control with the attendant duplication of court resources, delay, expense and vexation, as Dowsett J found, is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public moneys. The primary judge was right to permanently stay the proceedings as an abuse of the process of the Federal Court. (footnotes omitted)
[37] UBS AG v Tyne [58] ‑ [59].
The principles which govern an application such as the one before me were recently summarised by Kenneth Martin J in Mineralogy Pty Ltd v Sino Iron Pty Ltd[38] which I adopt without repeating.
[38] Mineralogy Pty Ltd v Sino Iron Pty Ltd [2020] WASC 40 [68].
The principles that are of particular relevance to the application before me are:
(a)even where there has been no determination of the merits of the dispute and where it may be possible to have a fair trial of the proceedings, a proceeding may still amount to an abuse of process if it is unjustifiably oppressive or would bring the administration of justice into disrepute;[39]
(b)the policy goals and objects of O 1 r 4A and 4B of the Rules, namely case management principles and the efficient use of resources, are relevant considerations;[40]
(c)a defendant having to defend successive actions brought by the same controlling mind and will is likely to give rise to the perception that 'the administration of justice is inefficient, careless of costs and profligate in its application of public moneys'.[41]
[39] Mineralogy Pty Ltd v Sino Iron Pty Ltd [68(h)] citing with approval Vaughan J in the 2018 Proceedings decision [119].
[40] Mineralogy Pty Ltd v Sino Iron Pty Ltd [68(k)] citing with approval Vaughan J in the 2018 Proceedings decision [128].
[41] Mineralogy Pty Ltd v Sino Iron Pty Ltd [68(l) - (o)].

Disposition

In my view, for the following reasons, the current proceedings constitute an abuse of the process of the court which justifies a permanent stay.
First, as was noted by Justice Vaughan in considering a similar application in the 2018 Proceedings, there was then a powerful case that those proceedings constituted an abuse of the process of the court which justified a permanent stay.[42] The case that was considered by his Honour has been made more powerful by the commencement of a third set of proceedings (albeit only the second proceedings where the present defendant was a party) which seek to raise the same issues concerning whether the Rights Issue in Superior Lawns in 2011 was oppressive to the interests of the TWIT.
[42] 2018 Proceedings decision [165].
Second, the previous proceedings have been dismissed by the court by reason of the failure of the plaintiff to comply with the court's orders (in respect of the 2018 Proceedings) or to prosecute the proceedings in a timely fashion (in respect of the 2011 Proceedings). I accept that there has been no determination of the merits of the plaintiff's complaints in respect of the Rights Issue in either the 2011 or 2018 Proceedings, however, the commencement of these proceedings does not accord with the principle of finality.
Third, the reason that the claim was not prosecuted by the plaintiff in the 2018 Proceedings was the plaintiff's failure to comply with the court's orders requiring him to pay the costs of the 2011 Proceedings. To allow the plaintiff to continue to prosecute these proceedings where he has failed to comply with an order of the court would bring the administration of justice into disrepute and would lead right-thinking members of the public to consider the system to be inefficient and profligate in the application of public monies.
Fourth, substantial parts of the delay in progressing the 2011 Proceedings over a period of seven years are attributable to the former trustee and the plaintiff. The reason for the failure to progress the 2018 Proceedings is entirely attributable to the plaintiff, as noted above.
Fifth, I accept that the conduct of both the 2011 Proceedings and the 2018 Proceedings by the former trustee and the plaintiff was incompatible with the object and goals of O 1 r 4A and 4B of the Rules which has resulted in the numerous judgments already produced by this court. Proceedings in relation to the claims raised by the plaintiff have now been on foot for almost 10 years and the issue is no closer to a determination on the merits. This impacts not only on the defendant, but also the court and other litigants.
Sixth, the defendant having to defend an identical action brought by the same plaintiff as the 2018 Proceedings is likely to give rise to the perception that the administration of justice is inefficient, careless of costs and profligate in its application of public money.
Seventh, if the plaintiff's application for special leave to appeal to the High Court is successful, there will be two sets of proceedings on foot dealing with identical issues.
In this case, I accept that the plaintiff's claims could and should have been litigated to finality in the 2018 Proceedings. The claim that is made in these proceedings is identical to that made in the 2018 Proceedings, save for the different relief sought by the plaintiff in the current proceedings and the non‑joinder to these proceedings of Superior Lawns and the Flugges.
In my view, the plaintiff acted unreasonably in failing to prosecute the 2018 Proceedings. No explanation has been provided for his failure to do so apart from his inability to meet the costs order in the 2011 Proceedings which was a pre‑condition for the continuation of the 2018 Proceedings. However, as noted above, the plaintiff did not apply to vary the orders or seek an extension of time to comply with the orders.
Taking into account the competing public and private interests of both the plaintiff and the defendant, I am satisfied that the continuation of these proceedings constitutes an abuse of the process of the court warranting the grant of a permanent stay.

Application for a temporary stay

Given my conclusion in respect of the defendant's application for a permanent stay of these proceedings, it is unnecessary for me to consider the alternative application for a temporary stay. For the sake of completeness, I deal with this application briefly below.
The factors which I have referred to above are also relevant to the defendant's alternative application that the proceedings should be stayed until the plaintiff has paid the costs of the 2011 Proceedings and the 2018 Proceedings.
The plaintiff raised three arguments in opposition to the application to the temporary stay.
First, he submitted that the present defendant was not a defendant to the 2011 Proceedings but only the 2018 Proceedings. On this basis, he contended that if a temporary stay was to be ordered, it should only be in relation to the costs of the 2018 Proceedings and not both proceedings. I do not accept this submission. The orders made by Justice Vaughan in the 2018 Proceedings (of which the defendant was a party) required payments to be made into court before the claim could be prosecuted against the defendant. This order should be complied with prior to the defendant being required to defend the plaintiff's claim.

Second, the plaintiff repeatedly referred to his intention to pay the outstanding costs liabilities in respect of both the 2011 and 2018 Proceedings if he was successful in these proceedings. He made a similar submission to Justice Vaughan in the application before him in the 2018 Proceedings which his Honour rejected.[43]
[43] 2018 Primary Decision [197]
I also reject this submission. As was noted by his Honour, this proposal assumes that the plaintiff will be successful in the present proceedings and does not address how the costs will be paid if the defendant is successful. More importantly, it removes 'altogether the disciplinary aspect of the jurisdiction'.[44]
[44] Sinclair v British Telecommunications plc [2000] 2 All ER 461, 470; 2018 Primary Decision [196].
I accept that an important consideration is whether staying proceedings to enable arrangements to be made to pay the costs of both earlier sets of proceedings would stifle the proceedings. As was noted by Justice Vaughan, I accept that the plaintiff is impecunious. The plaintiff did not adduce any updated evidence of his financial circumstances and whether he continues to have the support of his creditors, family and friends to pay day‑to‑day expenses.
In submissions before me, the plaintiff referred to the fact that he had not complied with these orders as leading to an inference that the plaintiff was unable to borrow funds. I do not accept this submission or that this is the only inference that can be drawn. It may be that the plaintiff chose not to pay these funds into court. There is no evidence before me in any of the four affidavits filed by the plaintiff in these proceedings as to what, if any, attempts were made to borrow funds or why the orders of Justice Vaughan were not complied with.
Without any updated evidence before me, I do not see any reason to depart from the inference drawn by Justice Vaughan that the plaintiff has some capacity to borrow funds.
Third, the plaintiff submitted that the costs that had not been paid by him were paid by Superior Lawns and not the defendant.[45] He made a similar submission to Justice Vaughan in the application before him in the 2018 Proceedings which his Honour rejected.[46] I also reject this submission. The orders made in the 2018 Proceedings were in favour of all defendants to those proceedings including the defendant in these proceedings.
[45] ts 36.
[46] 2018 Proceedings decision [195].
In all of the circumstances, even if I did not consider that these proceedings were an abuse of the process of the court (which I do), I consider that allowing the plaintiff to continue with these proceedings without first paying into court the costs of both the 2011 Proceedings and the 2018 Proceedings would constitute an abuse of the process of the court.
To allow the plaintiff to continue these proceedings without complying with the previous order of the court would, in my view, bring the administration of justice into disrepute. Right‑thinking people would not accept that the plaintiff can commence new proceedings and pursue an identical claim against the defendant without regard to what has occurred previously. This is incompatible with contemporary values and the principles of case management set out in O 4 r 1A and 1B of the Rules.

Vexatious Proceedings Restriction Act 2002 (WA)

In the defendant's submissions filed 27 March 2020, the defendant made submissions as to whether leave ought to be granted to Norwestern Cove to apply for orders under the Vexatious Proceedings Restriction Act 2002 (WA) (VPR Act).
The minute of orders filed by the defendant on 10 March 2002 did not seek any orders under the VPR Act nor was there any indication by the defendant on the first appearance before me on 12 March 2020 of its intention to seek any such orders. The application that was listed for hearing before me was an application by the defendant for a stay of these proceedings.
The plaintiff objected to this aspect of the defendant's submissions on the basis that the application was not raised at the directions hearing programming the defendant's application to hearing.[47]
[47] Plaintiff's submissions [12].
Pursuant to s 4 of the VPR Act:
(2)An order under subsection (1) may be made by the Court on its own motion or on the application of ‑
…
(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.
(3)The Court must not make an order under subsection (1) -
(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.
In my view, on a proper construction of this section, it is not open for a party to seek orders under the VPR Act without filing a formal application or originating motion seeking such orders. This is because the consequences of such an application are significant. The restriction of a party's rights to commence proceedings is a serious interference with an important civil right which should only be contemplated in special or unusual circumstances.[48] Accordingly, the terms of the VPR Act, which require an application, should be strictly complied with.
[48] Commonwealth Bank of Australia v Bride [2004] WASC 177 [131].
As there is no application under the VPR Act before me, I do not propose to deal with the defendant's submissions further.

Conclusion and Orders

For the reasons set out above, the plaintiff's claim for oppression in these proceedings are, in my view, an abuse of the process of the court. As a consequence, the defendant's application for a permanent stay of these proceedings should be granted.
I will hear from the parties as to the costs of the application.

SCHEDULE A

No	Evidence	Parts not read
*COR 177 of 2018 proceedings*
1	Affidavit of Patrick Jebb sworn 12 October 2018	[104], [115], [116], [117], [119] (second sentence), [127], [141], [142(c)], [148], [163], [174], 'PGJ‑19', 'PGJ-20'
2	Second Affidavit of Patrick Jebb sworn 7 November 2018	[6(b)], [6(e)] [4]-[79] (taken as submission only)
3	Third affidavit of Patrick Jebb sworn 5 December 2018	[6], [12] (the words "and contrary… to do"), [14], [16], [17] (the words "in order to … these claims"), [57]
4	Fifth Affidavit of Patrick Jebb sworn 25 March 2019
5	Affidavit of Jerome Flugge sworn 8 November 2018	[30], [42] ‑ [45]
6	Affidavit of Jerome Flugge sworn 16 November 2018
7	Affidavit of Linley Flugge sworn 8 November 2018	[14] ‑ [17], [36]
8	Affidavit of Craig Flugge sworn 12 November 2018
9	Affidavit of Alexander Tharby affirmed 8 November 2018	[49] (first sentence)
10	Affidavit of Alexander Tharby affirmed 25 March 2019
11	Exhibit 1 – Reasons for decision: *Trafalgar West Investments Pty Ltd v Superior Lawns Australia Pty Ltd [No 13]* [2019] WASC 58
12	Exhibit 2 – Defendants' Amended Draft Bill of Costs dated 15 January 2019 (filed in COR 59 of 2011)
13	Exhibit 3 – Orders of Registrar Whitbread in CIV 1704 of 2018
14	Exhibit 4 – Orders of Registrar Whitbread in CACV 58 of 2018
*CACV 58 of 2018 proceedings*
15	Affidavit of Patrick Jebb sworn 18 June 2018 (paragraphs 46 and 47 only)
16	Affidavit of Patrick Jebb sworn 22 June 2018 (paragraph 3 only)
*COR 59 of 2011 proceedings*
17	Affidavit of Patrick Jebb sworn 14 December 2015
*CIV 1179 of 2017 proceedings*
18	Affidavit of Patrick Jebb sworn 13 July 2017 (pages 7 to 41 and 65 to 69 only)
*COR 15 of 2020 proceedings*
19	Affidavit of Patrick Jebb sworn 4 February 2020
20	Affidavit of Alexander Tharby affirmed 19 February 2020
21	Affidavit of Patrick Jebb sworn 19 February 2020
22	Affidavit of Patrick Jebb sworn 9 March 2020
23	Affidavit of Alexander Tharby affirmed 27 March 2020
24	Affidavit of Patrick Jebb sworn 8 April 2020	[6] ‑ [24]

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill
6 MAY 2020