Re Rules of the Supreme Court 1971 (WA);
[2019] WASC 160
•6 MAY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE BLAKEMAN [2019] WASC 160
CORAM: TOTTLE J
HEARD: 6 MAY 2019
DELIVERED : 6 MAY 2019
FILE NO/S: CIV 1670 of 2019
EX PARTE
JONATHAN LINDSAY BLAKEMAN
Plaintiff
Catchwords:
Practice and procedure - Application for leave to proceed with judicial review - Whether abuse of process - Application as formulated has no prospect of success
Legislation:
Rules of the Supreme Court 1971 (WA), O 67 r 5
Result:
Leave refused
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
Solicitors:
| Plaintiff | : | In person |
Case(s) referred to in decision(s):
Forrest & Forrest Pty Ltd v Marmion, Minister for Mines and Petroleum [2017] WASCA 153
Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531
Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213
S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 19
TOTTLE J:
Introduction
On 15 April 2019 the plaintiff, who is a self-represented litigant, attempted to file an application for judicial review pursuant to O 56 r 2 of the Rules of the Supreme Court 1971 (WA) (RSC). The plaintiff identified as the subject of the application a decision made on behalf of the State Government of Western Australia on 26 February 2019 to enter into a commercial arrangement with a business that operates under the trade name Huawei.
The plaintiff's application was rejected by a registrar of the court because it appeared that it was an abuse of the processes of the court or constituted a frivolous or vexatious proceeding. As a consequence, the plaintiff was required to obtain leave from a judge or the master to file the application.[1]
[1] Rules of the Supreme Court 1971 (WA) O 67 r 5.
By an originating motion filed on 16 April 2019 the plaintiff sought leave to issue his proposed application for judicial review.
A judge or master should refuse leave to file or issue only if satisfied that the motion would be an abuse of process or a frivolous or vexatious proceeding. A proceeding that is clearly doomed to fail or is plainly unsustainable will constitute an abuse of process and a vexatious proceeding.[2]
[2] Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 [20].
General observations on applications for judicial review
It is convenient to begin with some observations about the law governing judicial review of administrative decision-making that will serve as the background to the comments made later about the plaintiff's application. The observations made are necessarily general and I have not attempted to deal with the complexities that bedevil this difficult area.
For present purposes it may be accepted that judicial review is available in respect of all statutory decision-making powers, at least, if: that power is being exercised by government, if the power has legal limits, and the decision made is justiciable (that is, it does not fall within the limited categories of decision not amenable to judicial review).
It is of critical importance, however, to understand that an application for judicial review is concerned with the legality of a decision under challenge, that is, whether the decision was made in accordance with the statutory provision that sets the limits and governs the exercise of the power or discretion. The limits of the authority conferred by the relevant statutory provision must be identified and the relevant facts must be analysed to ascertain whether those limits have been exceeded.[3] A decision made within the limits and in accordance with the procedures set by statute cannot be impugned on judicial review.
[3] Forrest & Forrest Pty Ltd v Marmion, Minister for Mines and Petroleum [2017] WASCA 153 [88].
The limited nature of judicial review is exemplified by the fact that if successful, an application for judicial review will usually result in the court referring the matter back to the decision-maker for reconsideration. The court does not make the decision, or make other decisions in place of the decision that is challenged. A court engaged in judicial review does not have a general power to make orders aimed at remedying an injustice or other grievance that may have flowed from things done as a consequence of, or in reliance on, the impugned decision.
There are a number of well-established categories of reviewable error that are referred to as 'jurisdictional errors'. These categories provide guidance when courts are called upon to consider the legality of decisions. It is helpful to refer to them to explain the principle that an application for judicial review is concerned with the legality of a decision and to reinforce the necessity for an applicant to identify with precision the reasons why it is contended the challenged decision was not authorised by the statute that regulates the decision-making.
Expressed in terms that reflect how they are relevant to administrative decisions of members of the executive the recognised categories of jurisdictional error are as follows:[4]
(a)a mistaken assertion or denial of the existence of the power to make the decision;
(b)a misapprehension or disregard of the nature or limits of the decision maker's functions or powers;
(c)acting wholly or partly outside the general area of the decision maker's power, by entertaining issues or making the types of decisions or orders that are forbidden under any circumstance;
(d)acting on a mistaken assumption or opinion as to the existence of a jurisdictional fact or other requirement when the relevant statute makes the validity of the decision‑maker's acts contingent on the actual or objective existence of those things, rather than on the decision‑maker's subjective opinion;
(e)disregarding a relevant consideration which required consideration under the Act or paying regard to an irrelevant consideration which the statute required not to be considered, in circumstances where the statute's requirements constitute preconditions to the validity of the decision‑maker's act or decision;
(f)misconstruing the statute governing the decision‑maker's power in such a way as to misconceive the nature of the function being performed or the extent of the decision‑maker's powers;
(g)acting in bad faith; and
(h)breaching (the hearing or bias rules of) natural justice.
[4] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 [72].
Thus, an applicant for judicial review must focus on these essential questions:
(a)What decision-making task has the statute conferred upon the decision-maker?
(b)In what ways does the statute regulate the decision-making?
(c)In a legal sense - what has gone wrong?
(d)Why is the alleged error of such significance that it affects the legality of the decision?
With those questions in mind it may be readily appreciated why it is important that an application for judicial review identify with some precision:
(a)the identity of the decision maker;
(b)the decision under challenge;
(c)the statutory power under which the decision was made and any rules said to govern the exercise of the power; and
(d)the basis upon which it is alleged that the challenged decision was not made within the statutory power.
An applicant for an injunction must have standing
An applicant for judicial review who seeks an injunction must either be able to point to a private right that is interfered with, or the applicant must have a special interest in the subject matter of the application that goes beyond that of any other member of the public. It is not necessary for that interest to be unique to the applicant. The requirement for a 'special interest' is a flexible one. It is a matter of fact and degree, and will depend on the nature and subject matter of the application, including the legislation relevant to the decision. It will involve an assessment of the importance of the concern held by the plaintiff with regard to a particular subject matter and the closeness of the plaintiff's relationship to that subject matter. Consequently, what is a sufficient interest in one case may be less than sufficient in another.[5]
[5] S & L Lenz Pty Ltd v The Shire of Serpentine Jarrahdale [2017] WASC 191 [10] - [11].
The proposed application
In his proposed application the plaintiff identified the decision that he seeks review of in the following terms:
The State Government has entered into a contract with the Chinese State Controlled communications company Huawei without due consideration that a foreign company under investigation in other countries can:
1)At any time of their choosing disrupt or disable from a remote location the essential transport services link.
2)Place encrypted programs into the network at the time of construction that may have future security implications for Australia and the people of Western Australia.
3)The tender process was flawed in that Huawei did not meet the pre-requisite requirements for tendering on the Metro net project.
The grounds upon which the plaintiff seeks to review the decision are as follows:
1)The tender process in which Huawei was chosen for the rail contract was flawed in that the tender was not a competitive tender as required under the statute of Western Australia due to the following:
a)Huawei did not meet the Metro Net pre-requisite guidelines as required to comply with the register for tendering on this project.
b)The State did not carry out sufficient due diligence in other countries that have used this company to discover total project outcomes before invitations to tender. Namely 'British Rail'.
c)Being a Chinese national company, the company can be instructed under Article 7 of the Chinese intelligence agency law to tender a rate the [sic] is not based on competitive tendering against other private companies who are required by share holders to make profit margins on contract works, and the tender price has to include those margins.
2)As a citizen of Western Australia, I have grave concerns that the agreement with Huawei and the State will have serious future security implications for Western Australia, and that the state has not given enough consideration to the possible security implications of entering into a contract with this company. Under article 7, the company can be instructed to disable the Metro Net network from a remote location at any time if there is a future political or military dispute between Australia and China.
3)The State Government has not demonstrated to the people of Western Australia that the contract with the Chinese controlled company is in the best interests of the State.
4)The Australian Federal Government and other western allies have banned this company from participating in the tender for essential services contracts due to security concerns, and therefore the State should not proceed with this contract in the current form.
The deficiencies in the plaintiff's proposed application
The plaintiff's proposed application is deficient for the following reasons:
(a)Although the proposed application contains a reference to the 'Minister of Transport's office' it does not identify the decision that the plaintiff wishes to challenge with adequate specificity.
(b)It contains no detail of the statutory regime governing the tender process or the award of the contract to Huawei.
(c)It does not set out the facts relevant to the tender process that require analysis to determine whether there has been a failure to comply with the relevant statutory provisions.
(d)It does not identify why the challenged decision was not authorised by the statute governing its exercise.
(e)It does not identify the guidelines that are referred to as not having been complied with nor why the alleged failure to comply with guidelines affects the legality of the decision made.
(f)It does not identify the facts relied upon in support of the allegation that there was a failure to undertake due diligence nor why that failure affects the legality of the decision.
(g)The allegations made about security concerns and about Huawei's links with the Chinese government are generalised assertions made by the plaintiff. The underlying facts that are required to be analysed to determine whether the decision was made within the authority of the statute are not identified with adequate specificity.
(h)It does not identify a connection between the alleged failure of the State Government to demonstrate that the contract with Huawei is in the best interests of the State and the legality of the decision.
(i)It does not identify any special interest on the part of the plaintiff that is sufficient to enable him to apply for an injunction.
In considering this application I am mindful that the rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. To limit this right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification. As a counterpoint to this general principle it is incumbent on all who approach the court seeking relief to ensure that their applications reflect the applicable legal principles and that they accord with the applicable rules of the court.
The plaintiff is a litigant who appears in person and some latitude is to be extended to those who do not have the benefit of legal advice. I have considered the possibility of granting the plaintiff leave to proceed and dealing with the deficiencies in the application in the course of the proceedings. That would not, however, be the proper course because I have no hesitation in holding that taken together the deficiencies in the proposed application constitute an insurmountable obstacle to success. This constitutes a proper and adequate justification for refusing leave to proceed. I emphasise that this is not to say that the deficiencies in the plaintiff's application are not capable of being addressed but whether it is possible for this to be done is not a matter on which I am able to comment. The plaintiff must put his application in order before approaching the court again if that is what he decides to do.
Allowing parties to proceed with applications that have no prospect of success not only means that those parties expose themselves to claims for costs from the other parties (in this case not only by the State but also by Huawei which is named in the plaintiff's application as an 'Other Party') but it places a burden both on those who are called to defend the cases and on the courts. Such cases divert scarce judicial resources away from the resolution of those cases proceeding before the court that are formulated in accordance with the law and that do comply with the rules.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Tottle14 MAY 2019
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