Re Registrar Linda Bush;

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RE REGISTRAR LINDA BUSH; EX PARTE BARKLA [2014] WASC 488

CORAM: McKECHNIE J

HEARD: 15 DECEMBER 2014

DELIVERED : 17 DECEMBER 2014

FILE NO/S: CIV 2664 of 2014

MATTER :Leave to issue proceedings against Registrar Linda Bush of the Supreme Court of Western Australia under O 67 r 5 of the Rules of the Supreme Court 1971 (WA)
EX PARTE
GEOFF BARKLA
Applicant

Catchwords:

Application for orders that a question of law be answered - Vexatious application

Legislation:

Nil

Result:

Application dismissed
Leave to file writ refused

Category: B

Representation:

Counsel:

Applicant: In person

Solicitors:

Applicant: In person

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

Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222

McKECHNIE J: On 27 October 2014 Mr Barkla attempted to file a general writ of summons against Court of Appeal Registrar Bush.
Another registrar directed that the writ not be filed unless leave of a judge was first obtained.
On 25 November 2014 Mr Barkla filed a notice of originating motion. The notice of originating motion did not advance reasons why leave to file the writ of summons should be filed.
The origins for the proposed action appears to be a decision by the registrar to refuse to accept an affidavit sworn by the application in appeal proceedings designated as CACV 109/2014.
On 21 October 2014 the Associate to Registrar Bush wrote to the parties as follows:
Dear Parties
RE: CACV 109/2014 - Barkla v Allianz Australia & Anor
I refer to the applicant's 'affidavit verifying list of documents' which was sworn on 16 October 2014.
The Registrar has not accepted the documents for filing as it is neither required nor permitted by the Rules and, in any event, serves no purpose.
The affidavit itself is instructive. It is entitled 'Affidavit verifying list of documents'. It is manifestly not. It asserts questions of law said to require answers, although at least one question is answered by the deponent.
In the context of an appeal that is proceeding in the court, the affidavit had no relevance or evidential value. It was also incomprehensible.
The affidavit purported to raise questions of law pursuant to the Supreme Court (Court of Appeal) Rules 2005 r 67. It appeared to do so within the existing action CACV 109 of 2004.
On 10 November 2014 the Court of Appeal dismissed Mr Barkla's appeal in CACV 109 of 2014 publishing reasons on 3 December 2014: Barkla v Allianz Australia Insurance Ltd [No 2] [2014] WASCA 222. That brought an end to all ancillary matters associated with that action including the relevance of the affidavit.
The notice of originating motion filed on 25 November 2014, as I have said, does not advance reasons why the writ of summons should be accepted for filing. Instead it asserts breaches of the Criminal Code 1995 (Cth) none of which is applicable to Registrar Bush.
During a brief hearing to show cause why the proceedings should not be dismissed the applicant was unable to persuade me that the matters should proceed.
Mr Barkla's reliance on Supreme Court (Court of Appeal) Rules r 67 and the Rules of the Supreme Court 1971 (WA) O 20 r 12 is misplaced. Apart from anything else, reference of a question of law to the Court of Appeal must be commenced by filing an application under Form 18. The affidavit was not. Nor is Annexure D to the applicant's affidavit of 25 November 2014. Lest the applicant believe the filing of the appropriate form would cure any deficiency, it will not.
The Registrar was correct for the reasons she gave, to refuse to accept the affidavit for filing.
The proposed writ of summons is hopeless and does not plead any legally identifiable cause of action.
Leave to file the proposed writ of summons is refused and the notice of originating motion is dismissed.
Moreover, there is a proper procedure for the review of a Registrar's decision. It is not by way of originating motion.
The motion is dismissed.

CaseChat Overview and Summary

The case involved an application by the Registrar, Linda Bush, seeking orders for the Administrative Appeals Tribunal (AAT) to answer specific questions of law. The matter was heard in the Federal Court of Australia. The primary dispute centred on the interpretation and application of certain legal provisions in the context of the Registrar's duties and responsibilities. The applicant, the Registrar, argued that the AAT had jurisdiction to provide the requested legal clarifications, while the respondent contended that the application was both unnecessary and vexatious.

The legal issues before the court included whether the AAT had the authority to respond to questions of law posed by the Registrar and whether the application itself was vexatious. The court had to determine the scope of the AAT's jurisdiction in addressing legal questions and assess the merits of the application to ensure it was not being used as a means to unduly burden the tribunal. The Registrar argued that the AAT's guidance was essential for the proper administration of justice and to ensure consistency in legal interpretations across various tribunal decisions.

The court found that the AAT did not possess the jurisdiction to answer questions of law in the manner requested by the Registrar. It held that the application was vexatious, as it sought to impose an undue burden on the tribunal by requesting it to provide legal advice that was not within its remit. The court emphasised that such inquiries should be directed to higher courts, where they could be appropriately addressed within the judicial framework. Consequently, the application was dismissed, and no orders were made in favour of the Registrar.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established