Re An Application Under S 6 of the Vexatious Proceedings Restriction Act;

[2017] WASC 102

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION: RE AN APPLICATION UNDER S 6 OF THE VEXATIOUS PROCEEDINGS RESTRICTION ACT; EX PARTE BARKLA [2017] WASC 102

CORAM:   TOTTLE J

HEARD:   1 MARCH 2017

DELIVERED          :   13 APRIL 2017

FILE NO/S:   CIV 1192 of 2017

EX PARTE

GEOFF BARKLA
Plaintiff

Catchwords:

Vexatious Proceedings Restriction Act 2002 (WA) - Whether leave should be granted to institute proceedings pursuant to s 6 of the Act - Where applicant wishes to appeal against an interlocutory order of a judge of the District Court - Where applicant has failed to comply with s 6(3) of the Act - Application dismissed

Legislation:

District Court of Western Australia Act 1969 (WA)
Vexatious Proceedings Restriction Act 2002 (WA), s 6

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Solicitors:

Plaintiff:     In person

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

Spiers Earthworks Pty Ltd v Landtec Projects Corporation Pty Ltd [2010] WASCA 43

TOTTLE J: 

Introduction

1. This is an application made under s 6 of the Vexatious Proceedings Restriction Act 2002 (WA) for leave to institute a proceeding, namely an application for leave to appeal from an interlocutory order of a judge of the District Court of Western Australia.

2. On 21 September 2016, an order was made by a judge of this court prohibiting the applicant from instituting any proceedings, as that word is defined under the Act, without first obtaining the leave of a court under s 6 of the Act.

3. Section 79(1)(b) of the District Court of Western Australia Act 1969 (WA) provides, in effect, that a party dissatisfied with an interlocutory order of a judge of the District Court requires leave of the Court of Appeal to appeal to the Court of Appeal against the order with which that party is dissatisfied.

4. Making an application for leave to appeal is to 'institute proceedings' for the purpose of the Act. 

Procedural background

1. By a notice of originating motion bearing the date 24 January 2017, filed in the Central Office of this court on 6 February 2017, the applicant sought relief expressed in the following terms:

   [A]n order that the Appellant be permitted to appear by 'Video Link' in hearings be [sic] the District Court WA and Supreme Court WA AND that the costs of and incidental to this application may be paid by the Respondent And [sic] further take notice that the grounds of this application are:

   Application for leave is sought pursuant to section 6 of the Vexatious Proceedings Act 2002 WA to apply for leave to appeal against an order McCann DCJ made on the 5th September 2016 'requiring' the Appellant to appear in person at any future Court appointments in the matter of CIV 2764 of 2016 Barkla v Allianz Australia.  The nature of this claim is for permission for a 'Video Link' in the District Court WA for 'Future Economic Loss' in which Allianz 'Accept Liability' (please see attached Insurer's Notice that liability is Accepted) for a worker's compensation injury in which medical expert Dr Kate Nielsen advises is now 'permanent impairment'.

2. It appears the applicant commenced an application for leave to appeal against McCann J's order but that the acting Court of Appeal Registrar directed the applicant's attention to the need to obtain leave of the court under s 6 of the Act before any application for leave to appeal could proceed.

3. It appears that the applicant filed two affidavits sworn by him on 30 December 2016 in his proposed application for leave to appeal.  One affidavit is short, comprising two paragraphs in which the applicant states that he is entitled to a 'fair hearing' and a 'video link' to enable him to pursue his claim.  He goes on to say that to deny him his right to be heard would be a 'gross miscarriage of justice'.

4. The second affidavit comprises 11 paragraphs and attaches various documents that appear to relate to the applicant's proceedings before the District Court.  In the body of the affidavit the applicant sets out various complaints that he has about the course that his District Court proceedings have followed and about the conduct of various judicial officers.  The relevance of those complaints to the present application is unclear.

5. In par 10 of the affidavit the applicant deposes that:

   The fact is the appellant has a 'pensioner card' and cannot afford air fare tickets and accommodation as he resides in South Australia and the Courts of Western Australia had never had an issue with me having Video Links in the past, so it may be reasonable for the appellant to believe that Justice McCann who has made the order that the Appellant not permitted [sic] to appear by Video Link.  Maybe bias and unfair in making this order.  The Appellant offers to pay for a Video Link.

6. The applicant does not identify in his affidavit the date on which the order against which he wishes to appeal was made.  The notice of originating motion, however, refers to McCann DCJ's order as having been made on 5 September 2016.

7. Upon my leave, the applicant filed a further two affidavits sworn by him on 7 and 8 March 2017 in support of his application for leave under the Act. 

8. In the affidavit sworn on 7 March 2017, relevantly for the purposes of the present application, the applicant deposes that he had offered to pay for a video link and asserts that the defendant in the District Court action did not oppose him appearing by video link.  He deposes that he has been permitted to appear by video link some 26 times and has appeared before me on this application by video link.

9. In the affidavit sworn on 8 March 2017, the applicant refers to documents filed in the District Court and attaches some of these documents to the affidavit. These include a notice to admit facts and a 'writ and notice of interrogatories specified in this notice pursuant to the District Court Rules 2005 Reg 47(3) this action is a personal injuries action'. A cursory examination of these documents suggests that the applicant has misconceived the court processes of writs of summons, notices to admit, and interrogatories. On their face these documents suggest that the applicant was engaged in an exercise that constituted an abuse of the processes of the court. The applicant attaches to his affidavit the Associate's record of the orders made by McCann DCJ on 5 September 2016. The record suggests that the application before the court was a strike out application. The orders made on 5 September 2017 were as follows:

   1.Both parties' applications are adjourned indefinitely.

   2.Proceedings in this matter (CIV/2764/2016) are stayed permanently until further order.

   3.Any order or direction previously made permitting Mr Barkla to attend by video link is countermanded and it is expressly ordered that henceforth Mr Barkla appear in person if he wishes to appear.

   4.Until further order, Mr Barkla is a restrained from providing copies of any correspondence he sends to this Court, or to Mills Oakley, regarding this matter to anyone except the court or Mills Oakley unless with the prior written leave of a judge of this court.

   5.Liberty to either party to apply in writing on 21 days' notice.

10. This is the order with which the applicant is dissatisfied and against which he wishes to appeal.

Statutory framework

1. Section 6 of the Act provides that an application for leave to institute proceedings is to be accompanied by an affidavit in support of the application, and that the affidavit is to list all of the occasions on which the applicant has made an application for leave under subsection (1), and to disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant: see s 6(3).

2. Section 6(5) of the Act provides that the court is to dismiss the application for leave if it considers that:

   (a)the affidavit does not disclose everything required by subsection (3) to be disclosed; or

   (b)if the proceedings are vexatious proceedings; or

   (c)that there is no prima facie ground for the proceedings.

3. 'Vexatious proceedings' means proceedings:

   (a)which are abuse of the process of a court or a tribunal;

   (b)instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose; or

   (c)instituted or pursued without reasonable ground; or

   (d)conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

Determination

1. I am prepared to treat the applicant's affidavits of 30 December 2016, together with his affidavits sworn on 7 and 8 March 2017, as his affidavits in support of the application for leave.  This is the course that the applicant wishes me to adopt.

2. I am not satisfied, however, that the affidavits disclose everything that is required to be disclosed by s 6(3) of the Act.

3. The affidavits do not disclose the occasions on which the applicant has made an application for leave to institute proceedings.  In the course of the hearing the applicant told me that this is the first occasion upon which he has applied for leave to institute proceedings.

4. I have reservations about whether the applicant has disclosed all facts material to the application, whether supporting or adverse to the application, that are known to him.  The full extent of the material that is directly relevant to the decision which the applicant wishes to challenge is that contained in par 10 of his longer affidavit of 30 December 2016 and the Associate's record of the orders made.  The affidavits contain no explanation of the nature of the application that was before McCann DCJ on 5 September 2016 or the background to that application.

5. Without full and proper information about the procedural background to the order in respect of which the applicant seeks leave to appeal it is difficult to address the present application. I consider that the application should be dismissed on the ground that there has been a failure to comply with the requirements of s 6(3) of the Act.

6. Further, I consider that the application should be dismissed on the following alternative, and perhaps more substantive, ground - namely, that the proposed application for leave is a proceeding that is vexatious in that it is without reasonable grounds.

7. The decision from which the applicant wishes to appeal is an interlocutory decision concerning a matter of practice or procedure.  The principles relating to the grant of leave for interlocutory appeals are summarised in Spiers Earthworks Pty Ltd v Landtec Projects CorporationPty Ltd [2010] WASCA 43 (Pullen JA and Kenneth Martin J):

   No rigid rules govern the grant of leave for interlocutory appeals.  Usually, however, an appellant needs to show that the decision appealed against is wrong, or at least is arguably attended with sufficient doubt to support a grant of leave to appeal.  There is usually a further requirement to demonstrate that substantial injustice would be done in leaving the challenged interlocutory decision unreversed:  see Wilson v Metaxas [1989] WAR 285; Wing Luck Foods v Lay Choo Lim [1989] WAR 358 and The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, per Malcolm CJ at 54 - 55 … [36].

8. Particular caution is to be exercised in considering an application for leave to appeal from a decision dealing with matters of practice and procedure.

9. Granting or refusing a party leave to appeal by video link is quintessentially a matter of practice and procedure.  There are a variety of matters that have the capacity to bear upon whether leave to appear by video link should be granted.  One that immediately comes to mind as being potentially relevant in this case is whether a party is taking steps that abuse the processes of the court.  As I have already indicated, my impression from the documents that the applicant has attached to his affidavits in support of this application is that he had misconceived the nature and purpose of the notice to admit procedure and the circumstances in which interrogatories might be administered and that his attempts to employ those processes constituted an abuse of process. 

10. There is no right to appear by video link.  It is a facility used by the court where appropriate and its use lies within the discretion of the relevant judicial officer.  In this case, McCann DCJ may well have been of the view that he would not permit the applicant to appear by video link if he was satisfied that the applicant wished to pursue a course of conduct that constituted an abuse of process.  If so, this seems to me to be a sound exercise of the court's discretion.  In any event, on the basis of the materials the applicant has put before me in support of his application for leave to commence an application for leave to appeal, I consider that the proposed application for leave to appeal has no reasonable grounds and that thus it is a vexatious proceeding.

11. For the reasons set out above I dismiss the application.