Re Rules Of the Supreme Court 1971 (WA) - [2025] WASC 296

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE LYNN [2025] WASC 296
CORAM:   HILL J
HEARD:   24 JULY 2025
DELIVERED          :   24 JULY 2025
FILE NO/S:   CIV 1553 of 2025
MATTER: IN THE MATTER OF AN APPLICATION UNDER O 67 R 5 OF THE RULES OF THE SUPREME COURT 1971 (WA)

EX PARTE
ELA LYNN
Plaintiff

Catchwords:

Practice and procedure - Writ of summons refused for filing by Registrar of the court pursuant to Order 67 Rule 5 of the Rules of the Supreme Court 1971 (WA) - Application by plaintiff for leave to file and issue a writ of summons - Whether writ of summons an abuse of the process of the court or whether proceeding is frivolous or vexatious - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) O 67 r 5

Result:

Originating process adjourned

Category: B

Representation:

Counsel:

Plaintiff

In Person

Solicitors:

Plaintiff

In Person

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

Albrecht v Australian Taxation Office [2015] WASC 246
Ogbonna v Qantas Airways Ltd [No 2] [2020] WASC 359
Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213
Tobin v Dodd [2004] WASCA 288
Wentworth v Rogers (No 5) (1985) 6 NSWLR 534
Zaghloul v Bayly [2021] WASCA 125

HILL J:

(This judgment was delivered extemporaneously and has been edited from the transcript to include references, headings and to correct matters of grammar and expression.)

The application before me today is the plaintiff's application by originating motion for leave to file a writ of summons pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (Rules). The proposed writ was refused for filing by a Registrar pursuant to O 67 r 5(1) of the Rules, which 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.
The plaintiff is a litigant in person. It is clear from the documents that have been filed in the application before me that she has not had the benefit of any significant legal assistance in the drafting of the proposed statement of claim.
The originating motion was supported by an affidavit of the plaintiff sworn 27 May 2025, as required by O 67 r 5(4) of the Rules. The affidavit annexed the proposed writ, the correspondence Ms Lynn had received from the court, and outlined the basis for the claim she seeks to bring.
The originating motion was originally listed for hearing before me on 30 May 2025. On that date, I indicated to the plaintiff that there were two fundamental issues with the proposed writ that had been filed. First, the Magistrates Court has exclusive jurisdiction over residential tenancies. For this reason, the contention that the filing of an action in the Magistrates Court was procedural coercion or an abuse of process could not be maintained. Second, at that time, the plaintiff had proceedings on foot in the District Court against at least some of the same defendants raising the same allegations. Allowing a party to bring the same claim at the same time in different courts would bring the administration of justice into disrepute and would, in my view, be an abuse of process.
At that hearing, the plaintiff indicated that she intended that these proceedings should subsume the proceedings in the District Court. However, in order to do this, it was necessary for the plaintiff to discontinue the proceedings in the District Court.
On this basis, I adjourned the originating motion sine die to enable the plaintiff to file an amended proposed writ and statement of claim.
Since that date, the plaintiff has filed four further affidavits:
(a)an affidavit of 3 June 2025, which annexed the amended proposed statement of claim;
(b)an affidavit of 23 June 2025, which confirmed that the District Court proceedings had been discontinued; and
(c)two affidavits of 22 July 2025 and 24 July 2025, which attach a large number of documents which Ms Lynn says support her claim.

Factual background

In the proposed writ, the plaintiff seeks to commence proceedings against five separate parties: two companies, and three individuals.
On reading the proposed written statement of claim in their entirety, it is clear that the plaintiff's claims arise in respect of her occupancy of a five‑bedroom house that the plaintiff leased from the first proposed defendant.
The plaintiff has been in dispute with the owner and the property manager over a number of issues in relation to the property, including repairs that the plaintiff says are required at the property, whether the lease should have been terminated, and whether the plaintiff could operate a home‑stay operation at the house.

Should leave be granted to the plaintiff to file the proposed writ?

In accordance with the Rules, the plaintiff's motion for leave to file the proposed writ was listed before me today for an ex parte hearing.
In considering an application for leave brought by a litigant in person, the court must consider whether the proposed writ could be put into proper form with appropriate amendment and some assistance (where appropriate) from the court.[1] In doing so, the court should approach the matter with a degree of flexibility and bear in mind that the rules of pleadings are a means to an end and not an end in themselves.[2]
[1] Wentworth v Rogers (No 5) (1985) 6 NSWLR 534, 536, 543.
[2] Tobin v Dodd [2004] WASCA 288 [16] ‑ [18] (E M Heenan J, Murray J agreeing), [69] ‑ [70] (Le Miere J); Albrecht v Australian Taxation Office [2015] WASC 246 [22] ‑ [23] (Pritchard J); Ogbonna v Qantas Airways Ltd [No 2] [2020] WASC 359 [6] ‑ [7] (Le Miere J); Zaghloul v Bayly [2021] WASCA 125 [81] ‑ [82] (Murphy, Mitchell & Vaughan JJA).
The effect of a refusal to accept a writ for filing is similar to the exercise of a power which would bring about a summary dismissal of proceedings. For this reason, consistent with the approach that is taken in relation to summary judgment applications, the court must exercise caution before dismissing a claim summarily.
That said, there are two purposes which underlie O 67 r 5 of the Rules. The first is to reinforce the inherent power of the court to protect itself from the unwarranted waste of its time and resources, consistent with the objects set out in O 1 r 4B of the Rules. The second is to avoid the loss that would otherwise be suffered by those required to defend actions which lack substance.
In Re Rules of the Supreme Court 1971 (WA); Ex parte Gates, Vaughan J (as his Honour then was) summarised the concepts of both an abuse of process, and the characterisation of a proceeding as frivolous or vexatious. His Honour noted that there is considerable overlap between these concepts and that they are often used in conjunction or interchangeably. His Honour stated that:[3]
What amounts to an abuse of the court's process is insusceptible of a formulation comprising closed categories. It extends to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Abuse of process occurs in any circumstance in which the use of the court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. However, the onus of satisfying the court that there is an abuse of process is a heavy one. The power to dismiss proceedings as an abuse of process should be exercised with caution and only in the most exceptional or extreme case. (footnotes omitted)
[3] Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 [25].
The application of these principles to the proposed written statement of claim that have been prepared by Ms Lynn requires the court to undertake a balancing process, involving consideration of Ms Lynn's private interests and the public interest. Ultimately, however, the question of whether the filing of the proposed written statement of claim would amount to an abusive process, or whether the proposed proceedings are frivolous or vexatious, is an evaluative assessment. It is not discretionary.
The plaintiff's claims are said to arise in relation to a consumer contract under the Australian Consumer Law.[4]
[4] Sch 2 to the Competition and Consumer Act 2010 (Cth).
From my review of the proposed statement of claim, my preliminary view is that with appropriate amendment, the document is likely to be able to be put in a proper form to enable leave to be granted. However, before this occurs, I consider that there are a number of matters that need to be addressed.
First, the current version of the statement of claim does not specifically identify the contract by date or description, or say who the parties to the agreement are. These matters need to be pleaded. If any expressed terms of the contract are relied upon by Ms Lynn, they will need to be pleaded.
Second, a major complaint of the plaintiff concerns a two‑person occupancy restriction, given the plaintiff's 'stated intention to host homestay guests', and what are described in the document as 'verbal assurances by the agent'. However, at present, the proposed statement of claim does not provide details of:
(a)the basis for the plaintiff's understanding that short‑term homestay residents were permitted,[5] or who she expressed the stated intention to host homestay guests to;[6] and
(b)what statements were made by or to the plaintiff (and by whom), what was said, and when.
[5] [14] of the proposed statement of claim.
[6] [15] of the proposed statement of claim.
Third, at [75] ‑ [76] of the proposed statement of claim, the plaintiff refers to the commencement of the District Court proceedings, as well as the proceedings for eviction in the Magistrates Court. As explained previously, the District Court does not have jurisdiction in relation to residential tenancies, which are in the exclusive jurisdiction of the Magistrates Court. Any suggestion that all issues between the parties could be resolved in what is described as a 'higher jurisdiction' is not, in my view, a claim that can be maintained.
Fourth, the preliminary statement which is contained in the proposed statement of claim sets out the basis for the plaintiff's claim. In my view, some of these matters are not causes of action, including procedural coercion, financial harm or financial coercion, and surveillance. The summary also refers to a claim for defamation, although none is pleaded. It is important that the proposed statement of claim explain with some precision what the plaintiff's claims are and how they arise.
Finally, the plaintiff proposes that the writ be issued against five separate defendants. However, at present, it is not clear what claims are made against which defendants, and the basis on which each of these claims is advanced. This will also need to be addressed by Ms Lynn before leave is granted.

Conclusion

It is my view that, subject to amendments being made to the draft writ to address the matters that I have referred to, it is likely that the proposed writ can be brought into a proper form. For this reason, I consider that the appropriate orders today are to give the plaintiff the opportunity to file a further amended proposed writ to address the matters that have been identified before the application is relisted for consideration.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KC
Associate to the Honourable Justice Hill
30 JULY 2025