Re Bride
[2022] WASC 327
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: RE BRIDE; EX PARTE EDWARD JAMES BRIDE [2022] WASC 327
CORAM: SMITH J
HEARD: 23 SEPTEMBER 2022
DELIVERED : 28 SEPTEMBER 2022
FILE NO/S: CIV 1981 of 2022
MATTER: IN THE MATTER OF BRIDE
EX PARTE
EDWARD JAMES BRIDE
Plaintiff
Catchwords:
Vexatious litigant - Vexatious Proceedings Restriction Act 2002 (WA) - Ex parte application to rescind prior orders of the court declaring the applicant a vexatious litigant - Application for leave to institute proceedings of a particular class that is the subject of prior orders under s 4(1)(d) prohibiting the applicant from commencing a particular class of proceedings
Legislation:
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
Solicitors:
| Plaintiff | : | In Person |
Cases referred to in decision:
Bride v Shire of Katanning [2013] WASCA 154
Bride v Shire of Katanning [2015] WASCA 77
Commonwealth Bank of Australia v Bride [2004] WASC 177
Shire of Katanning v Bride [2018] WASC 375
Shire of Katanning v Bride [No 2] [2016] WASC 314
SMITH J:
1.0 The application and the result
Edward James Bride made an application by an originating notice of motion dated 16 September 2022:
(a)to annul (rescind) an order made by EM Heenan J on 17 August 2004 prohibiting him from instituting proceedings of a particular class without the leave of the court;
(b)to annul (rescind) an order made by Tottle J on 1 November 2016 prohibiting him from instituting proceedings of a particular class without the leave of the court; and
(b)for leave to institute proceedings in the Supreme Court against the Commonwealth Bank of Australia (Commonwealth Bank), the Shire of Katanning (Shire) and the Shire's lawyer's McLeods Lawyers (McLeods), pursuant to s 6(1)(a) of the Vexatious Proceedings Restriction Act 2002 (WA).
After hearing from Mr Bride on 23 September 2022, the application was dismissed.
The reasons why the application was dismissed are as follows.
2.0 Orders made by the court prohibiting Mr Bride from pursuing or instituting any legal proceedings of a particular class
Between 1984 and 2004, Mr Bride commenced over 60 proceedings concerning:[1]
(i)the validity of his bankruptcy in 1984;
(ii)the validity of the Australian Bank mortgage C337514 over Lot 29 (and various other mortgages) and the Australian Bank's subsequent receivership (the Australian Bank subsequently merged with the Commonwealth Bank); and
(iii)the conduct of Mr Bride's receivers and trustee in bankruptcy.
[1] Shire of Katanning v Bride [No 2] [2016] WASC 314 [11] (Tottle J); Commonwealth Bank of Australia v Bride [2004] WASC 177 (EM Heenan J).
In Commonwealth Bank of Australia v Bride, EM Heenan J in 2004 found that Mr Bride and his wife Wendy Margaret Bride, both in their personal capacities and in their capacities as trustees of the Pinwernying Family Trust (the Trust), had instituted and conducted vexatious proceedings. His Honour made an order under s 4(1)(d) of the Vexatious Proceedings Restriction Act prohibiting Mr and Mrs Bride from pursuing or instituting any legal proceedings arising from or associated with their defaults under the securities over their Katanning properties in 1984 against those engaged in the enforcement of the securities, or the resolution of the litigation and the disputes which followed.[2]
[2] Commonwealth Bank of Australia v Bride [2004] WASC 177.
In Shire of Katanning v Bride [No 2], Tottle J in 2016 found that Mr and Mrs Bride instituted vexatious proceedings against the Shire and its solicitors McLeods, and that they were likely to do so in the future.[3] His Honour made an order under s 4(1)(d) of the Vexatious Proceedings Restriction Act that Mr and Mrs Bride:[4]
either personally or in a representative capacity, are hereby prohibited from instituting any action, proceeding, appeal, counterclaim or other application in any Court of the State Western Australia against the plaintiff in respect of any claim or matter:
(i)proceedings alleging fraud or unlawful conduct arising from or in connection with the Shire's conduct in Supreme Court proceedings CIV 2064 of 2007, CIV 2170 of 2009, CIV 2994 of 2009 and CIV 2853 of 2010, District Court proceedings APP 101 of 2005, CIV 2297 of 2002, Magistrates Court proceedings 19525 of 2004 and any interlocutory applications heard therein, or appeals therefrom;
(ii)proceedings relating to or arising from the Shire's conduct in asserting that the first and second defendant in their personal capacities or as trustees for the Pinwernying Trust are liable to pay to the Shire rates in respect of Lot 29 on Diagram 62969, Certificate of Title Volume 1682 Folio 357 (Lot 29) pursuant to the Local Government Act 1995 (WA) for the period of 1984 to 2011 (and continuing until such time as Mr Bride, Mrs Bride or the Trust cease to be the 'owner' of Lot 29 pursuant to s 1.4 of the Local Government Act 1995; and
(iii)proceedings asserting that the first and second defendants in their personal capacities or as trustees for the Pinwernying Trust are not liable to pay to the Plaintiff rates in respect of Lot 29 pursuant to the Local Government Act 1995.
[3] Shire of Katanning v Bride [No 2] [2016] WASC 314 [72].
[4] Shire of Katanning v Bride [No 2] [2016] WASC 314 [81].
3.0 The Vexatious Proceedings Restriction Act - Leave to institute proceedings
Pursuant to s 6(1)(a) of the Vexatious Proceedings Restriction Act, application for leave to institute proceedings in the Supreme Court of a particular class that is required by an order under s 4(1)(d) is to be made to a judge, and is to be accompanied by an affidavit in support of the application. Section 6(3) requires that the affidavit accompanying the application for leave is to list all 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.
Neither the application nor the affidavit are to be served on any other person unless the court orders, under subsection (6), that they are to be served on another person.[5]
[5] Vexatious Proceedings Restriction Act 2002 (WA), s 6(4).
The court is to dismiss the application for leave if it considers that the affidavit does not disclose everything required by subsection (3) to be disclosed, or the proceedings are vexatious proceedings, or there is no prima facie ground for the proceedings.[6]
[6] Vexatious Proceedings Restriction Act 2002 (WA), s 6(5).
Leave is not to be granted unless the court is satisfied that the proceedings are not vexatious proceedings, and there is a prima facie ground for the proceedings.[7]
[7] Vexatious Proceedings Restriction Act 2002 (WA), s 6(7).
Although s 6(6) of the of the Vexatious Proceedings Restriction Act provides that before the court grants an application for leave it is to order that a copy of the application and accompanying affidavit be served on the person against whom the proceedings are to be instituted and give those persons an opportunity to oppose the application for leave, s 6(4) provides that neither the application nor the affidavit are to be served on any other person, unless the court orders that they be served.
In circumstances where it is clear from the matters stated in an originating motion, and or in a supporting affidavit, that the proceedings sought to be instituted:
(a)do not comply with s 6(3), or
(b)are vexatious; or
(c)there is no prima facie ground for the proceedings;
the court need not make an order that any other person be served with the application and accompanying affidavit before dismissing the application.
4.0 There is no material before the court which would justify the court from exercising its discretion to rescind the prior orders made under s 4(1)(d) of the Vexatious Proceedings Restriction Act
For the reasons I give below, it is clear that no order should be made to rescind the orders made by Tottle J or EM Heenan J because it is clear that the proceedings that Mr Bride now seeks to bring are vexatious.
The persons against whom such proceedings are sought to be bought should not be troubled by having to use their financial and human resources to defend proposed proceedings which have no prospect of success.
In addition, the court should not allow proposed proceedings to proceed which have no prospect of success. To do so is plainly a waste of the court's scarce resources and a diversion of court resources from more worthy litigation.
5.0 The application for leave does not comply with s 6(3) of the Vexatious Proceedings Restriction Act
Section 6(3) requires that the affidavit accompanying the application for leave is to list all the occasions on which the applicant has made an application for leave under subsection (1).
In an affidavit sworn by Mr Bride on 16 September 2022, the applicant discloses to the best of his knowledge, he has been declared a vexatious litigant on three occasions being:
(a)by the order made by EM Heenan J;
(b)by the order made by Tottle J; and
(c)by the Federal Court of Australia on application by the Commonwealth Bank.
The applicant has not disclosed any applications for leave to institute proceedings. The records of the court reveal that in the period from 2018 until 2022, Mr Bride has made four applications for leave to institute proceedings against the Commonwealth Bank and the Shire.
In proceedings CIV 2853 of 2010, the Shire obtained judgment against Mr Bride for $102,926.81 for unpaid local government rates and services charges that were due by Mr Bride as owner of Lot 29.[8]
[8] Shire of Katanning v Bride [2018] WASC 375 [1] ‑ [3] (Curthoys J).
On 16 January 2018, Mr Bride filed an originating motion seeking leave to institute proceedings against the Commonwealth Bank in CIV 1057 of 2018. The application in CIV 1057 of 2018 was dismissed on 5 April 2018 by Chaney J.
On 29 October 2018 in CIV 2886 of 2018, Mr Bride filed an originating motion seeking leave to bring an appeal against orders made on 19 January 2018 and 16 July 2018 by Master Sanderson in favour of the Shire in proceedings by the Shire against Mr Bride in CIV 2853 of 2010. The application in CIV 2886 of 2018 was dismissed by Curthoys J on 12 November 2018.
CIV 2853 of 2010 are proceedings instituted by the Shire against Mr Bride in which the Shire sought a property seizure and sale order against Mr Bride to seize and sell Lot 29 on Diagram 62969 Volume 1682 Folio 357 (Lot 29). In this proceeding, the Sheriff issued an interpleader summons on 18 June 2018 to determine the validity of a claim made by Mr Bride that he was not the beneficial owner of Lot 29 and that the land was owned by the Trust. In reasons for decision delivered by Curthoys J on 6 December 2018, his Honour found that the interpleader claim by Mr Bride was a proceeding for the purposes of the order made by Tottle J on 1 November 2016 and made an order that, unless by 4.00 pm on 14 December 2018 Mr and Mrs Bride as trustees of the Trust make an application for leave to proceed under the Vexatious Proceedings Restriction Act, their claim to the land as trustees would be barred and the Shire be at liberty to sell Lot 29 to enforce the judgment.[9]
[9] Shire of Katanning v Bride [2018] WASC 375.
Following the order made by Curthoys J on 6 December 2018, on 10 December 2018, Mr Bride made an application for leave to proceed in respect of the interpleader claim in CIV 2853 of 2010 under the Vexatious Proceedings Restriction Act. The application for leave was granted by Curthoys J on 18 January 2018. Mr Bride made a further and separate application for leave to proceed under the Vexatious Proceedings Restriction Act in the same matter on 7 May 2019. This application did not relate to the interpleader proceedings and the application for leave was dismissed on 21 June 2019.
On this basis alone, by failing to list all the occasions on which Mr Bride has made an application for leave to institute proceedings, the court is required, under s 6(5)(a) of the Vexatious Proceedings Restriction Act, to dismiss the application for leave.
Even if Mr Bride had disclosed these applications for leave, I still would have made the order to dismiss the application for the following reasons.
6.0 The proceedings sought to be instituted by Mr Bride are vexatious proceedings
The meaning of what constitutes vexatious proceedings within the meaning of the Vexatious Proceedings Restriction Act was set out by Tottle J in Shire of Katanning v Bride [No 2] as follows:[10]
[10] Shire of Katanning v Bride [No 2] [2016] WASC 314 [19] - [22].
By s 3 of the Act 'vexatious proceedings' means proceedings:
(a)which are an 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;
(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.
In Principal Registrar v Chin [2012] WASC 7, Murray J said that proceedings may constitute an abuse of process:
not because of a wrongful motive on the part of the [litigant] but because of their character. They are repetitious and seek, time and again, to ventilate matters upon which there have been clear decisions showing that whatever process is employed to bring the matter before the court, the matters sought to be ventilated are without merit [140].
Further or collateral attempts, by proceedings, to challenge a final decision of a court binding on the party attempting the challenge will render the proceedings by which the challenge is made an abuse of process and such proceedings will constitute vexatious proceedings: Granich [46].
The Shire submitted, and I accept, that vexatious proceedings include:
(i)claims with unintelligible pleadings, appeals from striking out pleadings, misconceived or hopeless appeals, appeals which lack any legal basis and the institution of applications or proceedings which have absolutely no prospect of success: Commonwealth Bank of Australia v Bride [2004] WASC 177 [127]; and
(ii)claims instituted by a litigant who 'sees dark conspiracies and a threat of great harm to himself or herself in wrongs of another': Attorney General v Michael [1999] WASCA 181 [126] (Anderson J).
6.1 Proposed proceedings against the Commonwealth Bank of Australia
In the originating notice of motion, Mr Bride claims that he wishes to institute proceedings as the trustee for the Trust against the Commonwealth Bank as successor of The Australian Bank Ltd for general, exemplary and punitive damages, and compensation for the bank's misconduct in the Katanning Local Court and further misconduct in the Perth District Court in relation to Lot 29.
Mr Bride's complaints appear to rise out of whether he is liable for the payment of outstanding rates and charges to the Shire in respect of Lot 29 from 1994 because he claims that he and Mrs Bride vacated Lot 29 in or about January 1985 and did not resume possession until late 2005.[11]
[11] See Shire of Katanning v Bride [No 2] [2016] WASC 314 [9] - [10] and [13].
It is clear that this proposed proceeding has no prospect of success.
First, any cause of action sought to be pleaded against the Commonwealth Bank is unintelligible. Put another way, no known cause of action is disclosed in the matters stated in the notice of motion and the supporting affidavits.
Second, the matters referred to in the notice of motion and the affidavit of Mr Bride sworn on 18 May 2022 that relate to the bringing of proceedings against the Commonwealth Bank are further and collateral attempts to challenge previous court decisions which are binding on Mr Bride, including the decision to appeal from the District Court to a single judge of this court, single judge decisions of this court, and decisions of the Court of Appeal. These decisions are summarised in the decision of EM Heenan J in Commonwealth Bank of Australia v Bride,[12] and Tottle J in Shire of Katanning v Bride [No 2].[13]
[12] Commonwealth Bank of Australia v Bride [2004] WASC 177 [1] - [5] and [9] - [14]; See also the decision of the Court of Appeal in Bride v Shire of Katanning [2015] WASCA 77.
[13] Shire of Katanning v Bride [No 2] [2016] WASC 314 [13].
Plainly, what is sought by the applicant by the filing of this notice of motion is an attempt to bring further or collateral proceedings to challenge final decisions of this court and as such is an abuse of process and constitutes vexatious proceedings.
The matters sought to be raised in proposed proceedings by Mr Bride are matters which he has raised unsuccessfully in prior proceedings. Further, and in any event, even if Mr Bride now seeks to raise an argument that was not raised in earlier proceedings in respect of any issue that arises out of the Commonwealth Bank being in possession of Lot 29 for a period of time, these are matters which could and should have been raised in the original proceedings.
Third, all of the matters which are raised in the notice of motion and the affidavit of Mr Bride sworn on 18 May 2022 that relate to bringing proceedings against the Commonwealth Bank arise out of events that occurred in respect of a mortgage on Lot 29 and what appears to be a complaint about whether the Commonwealth Bank was or was not a mortgagee in possession between January 1985 and late 2005. Consequently, any proceedings which could be found to arise in the period of time that Mr and Mrs Bride were out of possession of Lot 29 would be statute barred under the Limitation Act 2005 (WA).
For these reasons, pursuant to s 6(7) of the Vexatious Proceedings Restriction Act, I am prohibited from granting leave to Mr Bride to institute the proceedings sought to be instituted by him against the Commonwealth Bank because I cannot be satisfied that the proceedings are not vexatious proceedings or that there is a prima facie ground for the proceedings.
6.2 Proposed proceedings against the Shire of Katanning and McLeods Barristers and Solicitors
The new cause of action sought to be brought against the Shire and McLeods is also not clear. No known cause of action is disclosed in the notice of motion or in the supporting affidavits.
In the originating motion, Mr Bride claims that the Shire represented by McLeods have relentlessly pursued and harassed him and Mrs Bride since 1994 for rates owed on Lot 29 when the Shire and McLeods positively knew that the Commonwealth Bank was at all relevant times a mortgagee in possession of Lot 29 and as such the Commonwealth Bank was legally responsible for the Shire rates on Lot 29. Mr Bride seeks to claim costs and what appears to be a claim for damages for strain, stress and emotional distress.
Mr Bride appears to seek to make a similar claim against McLeods on the basis that they acted on behalf of the Shire.
It is clear that these proposed proceedings also have no prospect of success.
First, the matters stated in the notice of motion and in the affidavit of Mr Bride sworn on 18 May 2022 contain a bundle of documents which appear to indicate that Mr Bride concedes that he has been in dispute with the Shire about the non-payment of rates for Lot 29 since 1994 and he owes money to the Shire for rates but disputes the quantum and has made recent attempts in or about 2021 and 2022 to reach a settlement with the Shire. His complaints in the attached documents in his affidavit and originating motion about the negotiations do not form a proper basis for a cause of action at law.
Second, Mr Bride appears by this application for leave to seek to make a collateral attack on a judgment obtained by the Shire against him on 25 October 2011 for unpaid rates owed on Lot 29 from 1984, in respect of which was the subject of an unsuccessful appeal by Mr and Mrs Bride in 2013 and a subsequent unsuccessful application for special leave to appeal to the High Court from the decision of the Court of Appeal.[14] Mr Bride's complaints were also the subject of a further unsuccessful appeal in 2015 to the Court of Appeal.[15]
[14] Bride v Shire of Katanning [2013] WASCA 154.
[15] Bride v Shire of Katanning [2015] WASCA 77.
For these reasons, pursuant to s 6(7) of the Vexatious Proceedings Restriction Act, I am prohibited from granting leave to Mr Bride to institute the proceedings sought to be brought by him against the Shire or McLeods because I cannot be satisfied that the proceedings are not vexatious proceedings or that there is a prima facie ground for the proceedings.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
TS
Associate to the Honourable Justice Smith
28 SEPTEMBER 2022
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