Re Rules Of the Supreme Court 1971 (WA)
[2020] WASC 448
•4 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE SZULC [2020] WASC 448
CORAM: HILL J
HEARD: 20 NOVEMBER 2020
DELIVERED : 20 NOVEMBER 2020
PUBLISHED : 4 DECEMBER 2020
FILE NO/S: CIV 2030 of 2020
EX PARTE
MAXWELL JAN SZULC
Applicant
Catchwords:
Practice and procedure - Application for leave to file and issue originating motion and affidavit - Whether originating motion an abuse of process or frivolous or vexatious - Whether originating motion discloses cause of action - Turns on own facts
Legislation:
Rules of the Supreme Court 1971 (WA), O 54, O 67 r 5
Result:
Application dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
Solicitors:
| Applicant | : | In Person |
Case(s) referred to in decision(s):
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Martin-Smith v Woodhead [1990] WAR 62
Middleton v The State of Western Australia (1992) 8 WAR 256
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258
Re City of Stirling; Ex parte Tallot [2012] WASC 33
Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213
Smith v Maloney (1998) 19 WAR 209
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
HILL J:
(This decision was delivered extemporaneously on 20 November 2020 and has been edited from the transcript).
On 31 July 2020, the plaintiff attempted to file an originating motion pursuant to O 54 of the Rules of the Supreme Court 1971 (WA) (Rules) together with an affidavit in support of the originating motion. On 10 August 2020, a registrar directed that the originating motion and affidavit not be accepted for filing without leave of a judge having first been obtained under O 67 r 5 of the Rules.
On 13 October 2020, the plaintiff filed an ex parte originating motion seeking leave to file and serve the proposed originating motion and affidavit. By the proposed originating motion the plaintiff seeks to institute proceedings in this court against his son, Scott Andrew Szulc.
In the proposed originating motion, the plaintiff seeks an interlocutory injunction. It states that the ground for the application is that the defendant has breached the 'established agreement' and intends to sell the property.
The application is supported by two affidavits of the plaintiff. In the first affidavit, which was filed on 13 October 2020, the plaintiff deposes that he has been resident on the property since a letter of 25 March 2013, that his tenure is recorded in a letter dated 14 April 2013, and that the agreement is confirmed in an email dated 14 July 2017.
The plaintiff contends that there is no 'sunset clause' in the agreement which would enable the proposed defendant to sell the property before the plaintiff retires or dies. The plaintiff deposes that the application for an injunction is to stop the proposed defendant from dealing with the property to protect the plaintiff's interests and his future.
The plaintiff swore an affidavit in support of the originating motion, to which I have had regard in determining this application. This affidavit annexed the correspondence that is referred to by the plaintiff in his affidavit filed 13 October 2020, namely the letter dated 25 March 2013,[1] the letter dated 14 April 2013,[2] and the 14 July 2017 email.[3] The letter dated 25 March 2013 is a letter from the plaintiff to the proposed defendant and his wife. The letter contains a proposal as to the basis upon which the plaintiff would occupy the land in question. The plaintiff received a response to this letter on 14 April 2013. This letter does not accept the plaintiff's proposal and seeks to discuss a number of matters. The email from the proposed defendant to the plaintiff dated 14 July 2017 states:
As promised, you now have a property to live and carry out your business at no cost to you. You are not required to pay a mortgage or rates. The threat of a forced sale and eviction that has hung over your head for the past 30 years has been removed. So, where to from here?
[1] Affidavit of Maxwell Jan Szulc, Attachment 7.
[2] Affidavit of Maxwell Jan Szulc, Attachment 8.
[3] Affidavit of Maxwell Jan Szulc, Attachment 'ZZ1'.
When the matter came on for hearing before me on 11 November 2020, I raised with the plaintiff the evidentiary basis for his statement in the originating process that there was an established agreement between the parties. The applicant sought an adjournment to enable him to file further evidence of his agreement with the proposed defendant.
On 18 November 2020, the plaintiff filed a supplementary affidavit. The affidavit annexed two documents; the first, a letter from the plaintiff to a solicitor,[4] and the second, a copy of an email from the proposed defendant to the plaintiff.[5] The email refers to orders that had been sought for vacant possession which had now been removed. The email then states:
As stated, it was never our intention to have you removed from the property, this was a remnant of a standard property transaction only.
[4] Affidavit of Maxwell Jan Szulc filed 18 November 2020, Annexure 'A'.
[5] Affidavit of Maxwell Jan Szulc filed 18 November 2020, Annexure 'B'.
The plaintiff filed written submissions in support of his application.[6] In his written submissions, the plaintiff referred to previous proceedings between him and his son, being CIV 2445 of 2014. From the court record, I am also aware that there was an appeal from a decision of Master Sanderson in those proceedings, being appeal number CACV 1 of 2017. The dispute in those proceedings concerned the purchase by the proposed defendant of the plaintiff's half share in the property that is the subject of the proposed proceedings.
[6] Plaintiff's submissions filed 9 November 2020.
The plaintiff is a self‑represented litigant. He is a farmer who, I understand, has no formal legal training. For this reason, it is necessary to approach the proposed notice of originating motion with some flexibility to assess whether it discloses a viable cause of action which, with appropriate amendment, can be put into proper form.[7]
[7] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 537; Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 [3].
Legal principles
Order 67 r 5 of the Rules relevantly provides that:
(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.
…
(4)Applications for leave under subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.
There are two main reasons for the requirement for leave to file an originating process which appears to a registrar to be an abuse of process or a frivolous or vexatious proceeding. First, it reinforces the inherent power of the court to protect itself to from the unwarranted waste of its time and resources, and second, it avoids the loss that would otherwise be suffered by those required to defend actions which lack substance.[8]
[8] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312.
Order 67 r 5(1) of the Rules does not set out the criteria I am to apply in determining whether to grant or refuse leave to file or issue the proposed originating motion. However, from the express words used in the Rules, it is clear that I should only refuse leave to file or issue the originating motion if I am satisfied that the originating motion would be an abuse of process or a frivolous or vexatious proceeding.[9] In considering this issue, I adopt the same approach as that used in the exercise of the power of dismissal elsewhere in the Rules.[10]
[9] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258 [23].
[10] Ex parte Gates [20]; Perpetual Trustees Victoria Ltd v Allen [23].
What amounts to an abuse of the court's process is not susceptible to a formulation which comprises of closed categories.[11] However, proceedings are likely to constitute an abuse of process if they are clearly doomed to fail,[12] or are plainly unsustainable.[13]
[11] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9].
[12] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393; Re City of Stirling; Ex parte Tallot [2012] WASC 33 [7].
[13] Perpetual Trustees Victoria Ltd v Allen [23].
In Ex Parte Gates, Vaughan J undertook a comprehensive review of the meaning of each of the terms 'abusive process', 'frivolous' and 'vexatious', and stated that:[14]
An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed. (citations omitted)
[14] Ex parte Gates [31].
In exercising a power which denies a potential plaintiff the opportunity to have their matter heard, I am aware that this is a power which should not be exercised lightly. I am particularly aware that a court, at first instance, should be careful not to risk stifling the development of the law by summarily dismissing actions in respect of which there is a reasonable possibility that, in the development of the law, a cause of action may be found to lie.[15]
[15] Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365, 373 ‑ 374; Middleton v The State of Western Australia (1992) 8 WAR 256, 264.
Plaintiff's claim
In oral submissions the plaintiff sought to explain why the draft originating motion was not an abuse of process or vexatious or frivolous.
Mr Szulc acknowledged it had been difficult to find documents in support of the agreement; first, because the agreement was between family members, and second, because there was significant correspondence between him and the proposed defendant in which the proposed defendant had indicated he had no intention of selling the property or removing him from it.
Mr Szulc emphasised that if the property is sold, he will have no remedy.
The plaintiff's claim in the proposed originating motion asserts that there is an agreement between the plaintiff and the proposed defendant for the plaintiff to occupy the land, and by reason of that agreement, the proposed defendant is not entitled to sell the property.
Disposition
All litigants, including self‑represented litigants, are bound to comply with the Rules.
Under O 54 r 5(3) of the Rules, an originating motion must contain a concise statement of the nature of the claim made or the relief or remedy sought.
Even allowing for the plaintiff's status as a self‑represented litigant, the draft originating motion does not comply with the Rules. The document that was sought to be filed is not 'a concise statement of the nature of the claim made'. In addition, the affidavit that was sought to be filed by the plaintiff in support of the originating motion does not set out the facts upon which the plaintiff relies. For this reason, it also does not comply with the Rules.[16]
[16] Rules of the Supreme Court 1971 (WA) O 37 r 6(1).
As a preliminary point, I observe that the claim brought by the plaintiff is not one that should be made by originating motion under the Rules. The plaintiff seeks an injunction to prevent the sale of land, which is based on an alleged breach of contract. If the matter is to proceed, there are likely to be significant disputes of facts between the parties. Where this is the case, proceedings should be commenced by writ of summons.[17]
[17] Martin-Smith v Woodhead [1990] WAR 62, 65.
This, of itself, is not a sufficient reason to refuse leave to the plaintiff as the court has power to order that an originating summons proceed as if commenced by writ of summons.[18] For this reason, I now turn to consider the matters that are raised by the plaintiff in support of his application.
[18] Smith v Maloney (1998) 19 WAR 209, 221.
In its current form, the originating motion does not identify when or how the contract was created, whether it is oral, written or partly oral and partly written, and the relevant terms of the contract. I have reviewed the documents which the plaintiff has referred to in his affidavit sworn in support of the proposed originating motion. On their face, these documents do not constitute or evidence an agreement. There is no offer and acceptance, and it is not clear what the terms of the agreement are. By way of example, the email of July 2017 on which the plaintiff relies, states 'So, where to from here?'.[19] Rather than confirming the existence of an agreement, as asserted by the plaintiff, the terms of this email suggest that the plaintiff and his son are yet to agree the terms on which the plaintiff will continue to occupy the property.
[19] Affidavit of Maxwell Jan Szulc, Attachment 'ZZ1'.
The additional evidence filed by the plaintiff does not cure this defect. While the email from the proposed first defendant says that it was never his intention to remove the plaintiff from the property, it does not confirm the terms of the agreement between the parties.[20]
[20] Affidavit of Maxwell Jan Szulc filed 18 November 2020, Annexure 'B'.
On the evidence before me, I accept that the plaintiff is currently in occupation of the land in question, and has been for some significant time. However it is not clear on the evidence before me as to the basis for this occupation, namely whether he has a leasehold interest or simply a licence to occupy the land, and more importantly, whether this interest is sufficient to prevent the registered proprietors of the land from selling the land. In this regard it is not apparent from the documents that have been filed as to the basis on which the plaintiff contends he is entitled to an injunction to prevent the sale of the land.
I also accept on the evidence before me that the proposed defendant has previously made representations concerning the plaintiff's continued occupation of the property. Specifically, the evidence before me is that the proposed defendant represented in 2016 that vacant possession of the land was not sought as part of the orders in the case then on foot.[21] In 2017, he stated that at that time, he had made no demand, request or implication that the plaintiff would be removed from the property, and had informed the plaintiff of this.[22] However, neither of these representations are to the effect that the plaintiff is entitled to occupy the property until his retirement or death.
[21] Affidavit of Maxwell Jan Szulc filed 18 November 2020, Annexure 'B'.
[22] Affidavit of Maxwell Jan Szulc, Attachment 'ZZ1'.
In my view, it is necessary for the plaintiff to plead either how the contract was created in its material terms or alternatively, the particular representations that have been made by the defendant which supports his assertion that he is entitled to occupy the property until his retirement or death. These matters are necessary in order to comply with the plaintiff's obligations under the Rules.
Summary
For these reasons, I consider that the draft notice of originating motion does not disclose a viable claim which, with appropriate amendment, could be put in a proper form. What is required if the plaintiff wishes to pursue a claim against the proposed defendant is for the plaintiff to file a new document or documents that address recognised causes of action which may entitle him to the relief sought. It is not for the court to suggest a form of originating process or writ of summons which might entitle the plaintiff to relief. To do so would be to go beyond the proper assistance that the court might offer to a self‑represented litigant.[23]
[23] Ex parte Gates [65].
In addition, the plaintiff has not adduced any evidence in admissible form of facts which might give rise to a cause of action against the proposed defendant. Order 67 r 5(4) of the Rules requires that the application for leave to file and serve a draft originating process be supported by affidavit. This requires the plaintiff to depose to the facts which support the claim made by him. In this case, the affidavits filed by the plaintiff do not serve this purpose.
Finally, allowing the plaintiff to file the proposed originating motion in its present form would bring the administration of justice into disrepute. In his written submissions, the plaintiff referred to the previous proceedings between the parties and maintained the allegation that he had not received any money for the transfer of his interest in the land to the defendant. This contention was the subject of the previous proceedings. It would be an abuse of the process of the court to enable the plaintiff to rerun this part of the argument in these proceedings and, in my view, to permit the plaintiff's claim to proceed would not accord with the expectation that the court's resources would be used efficiently and economically. This requires parties and the court to conduct litigation promptly and efficiently in a manner consistent with the attainment of justice.
It follows from these reasons that if the plaintiff seeks to file another originating process or writ of summons which complies with the Rules, it will be necessary for the court to assess the matter afresh having regard to the matters raised by these reasons.
Conclusion
In the circumstances of this case, I am satisfied that the plaintiff's proposed originating summons would be an abuse of the process of the court and would be a frivolous and vexatious proceeding, within the meaning of those terms in the Rules, and that leave should be refused.
For these reasons, I refuse the plaintiff's application. The order of the court will be that the application by ex parte originating motion dated 13 October 2020 for leave to file and issue a proposed originating motion is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SL
Associate to the Honourable Justice Hill4 DECEMBER 2020
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