Re City of Stirling; Ex Parte Tallot
[2012] WASC 33
•1 FEBRUARY 2012
RE CITY OF STIRLING; EX PARTE TALLOTT [2012] WASC 33
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 33 | |
| Case No: | CIV:2720/2011 | 1 FEBRUARY 2012 | |
| Coram: | HALL J | 1/02/12 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused | ||
| B | |||
| PDF Version |
| Parties: | AARON TALLOTT CITY OF STIRLING |
Catchwords: | Practice and procedure Leave to file and issue proceedings O 67 r 5 Supreme Court Rules 1971 (WA) No cause of action identified |
Legislation: | Supreme Court Rules 1971 (WA), O 67 r 5 |
Case References: | Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303 Walton v Gardiner (1993) 177 CLR 378 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
AARON TALLOTT
Plaintiff
AND
CITY OF STIRLING
Defendant
Catchwords:
Practice and procedure - Leave to file and issue proceedings - O 67 r 5 Supreme Court Rules 1971 (WA) - No cause of action identified
Legislation:
Supreme Court Rules 1971 (WA), O 67 r 5
Result:
Leave refused
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : No appearance
Solicitors:
Plaintiff : In person
Defendant : No appearance
Case(s) referred to in judgment(s):
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Walton v Gardiner (1993) 177 CLR 378
(Page 3)
1 HALL J: The applicant in these proceedings, Mr Tallott, seeks to commence proceedings against the City of Stirling. In August 2011 he attempted to file documents in this regard. A registrar determined that the documents could not be filed without leave of a judge being first obtained pursuant to O 67 r 5 of the Supreme Court Rules 1971 (WA). Mr Tallott now seeks such leave.
2 The application for leave is made by an originating motion filed on 14 September 2011. It simply states that what is sought is that 'leave be granted to commence action against the defendant'. The motion names the proposed defendant as the City of Stirling.
3 In support of his application for leave Mr Tallott has filed numerous affidavits. None of them annex a proposed writ of summons or other originating process that he seeks to file. Accordingly, it is necessary to try and discern the nature of the proceedings that Mr Tallott wishes to commence from a perusal of his affidavits.
4 In one of the affidavits Mr Tallott says that he has been living in a van at Scarborough for the last seven months. He says he has been harassed by officers of the City of Stirling. It would appear that this has occurred in the context of City officers seeking to take action in regard to alleged unlawful camping and the lighting of fires on the beach. Mr Tallott believes that City officers have acted unlawfully. He refers in this regard to what he describes as stalking, the taking of personal information, surveillance and theft of his car. He suggests that this conduct constitutes terrorism under the Criminal Code (Cth).
5 In the many other affidavits Mr Tallott annexes, amongst other things, annotated copies of various statutes, international treaties and codes of conduct. He asserts that the City and its officers have breached various laws and that he has the evidence to prove it. He refers in his affidavits to having a claim of right under s 255 of the Criminal Code (WA). Section 255 of the Code provides a defence to a criminal charge or, more properly, it provides an excuse for conduct that would otherwise be illegal. That section is relevant in the context of a person charged with assault, it does not provide a cause of action.
6 Order 67 rule 5 provides:
Abuse of process etc., procedure in case of
(1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the registrar to be an
- abuse of the process of the Court or a frivolous or vexatious proceeding, the registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a judge or a master first had and obtained by the party seeking to file or issue it.
- (2) In the case of a motion or an application ordinarily returnable before a master in chambers, an application for leave to file or issue such motion or application shall be made to a master in chambers.
(3) In all other cases, an application or commission shall be made to a judge in chambers.
(4) Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.
7 That rule reinforces the inherent power of the court to protect itself from unwarranted wastage of time and resources and to avoid the loss caused to those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312. Proceedings will constitute an abuse of process if they are clearly foredoomed to fail: Walton v Gardiner (1993) 177 CLR 378, 393.
8 I have read all of the material submitted by Mr Tallott in support of this application for leave. I have also listened carefully to his oral submissions today.
9 It is clear that Mr Tallott is sincere in his conviction that he is the victim of injustice. He strongly believes that he has a right to live his life as he wishes, including camping on the beach. He is passionate in his cause and convinced that the City has acted unlawfully against him. He draws upon wide-ranging social and political debates to support his position. He says that his claims would vindicate the rights of all Australians.
10 The court is not, however, a forum for political or philosophical debates that are unconnected to a real defined cause of action. There is no obvious basis in the material provided for legal proceedings to be commenced in this court. No originating process clearly identifying the cause of action is provided and no such cause of action emerges from the papers or the submissions. In those circumstances leave must be refused.
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