Re Rules Of the Supreme Court 1971 (WA); Ex Parte Gates - [2018] WASC 213

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE GATES [2018] WASC 213
CORAM:   VAUGHAN J
HEARD:   12 JULY 2018
DELIVERED          :   18 JULY 2018
FILE NO/S:   CIV 2011 of 2018
MATTER:   An application under the Rules of the Supreme Court 1971 (WA) seeking leave to file and issue a writ of summons

EX PARTE
DREWFUS GATES
Plaintiff

Catchwords:

Practice and procedure - Application for leave to file and issue writ of summons - Whether writ an abuse of process or frivolous or vexatious - Where cause of action is possibly statute barred - Where writ discloses no cause of action and claim is not verified by admissible evidence

Legislation:

Limitation Act 1935 (WA), s 38
Rules of the Supreme Court 1971 (WA), O 67 r 5

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff

In person

Solicitors:

Plaintiff

In person

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

Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481
Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256
Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1
Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703; (2001) 112 FCR 336
Commonwealth v Mewett (1995) 59 FCR 391
Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394
Gillies v Moir [2014] NSWSC 1481
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Keating v Woods (Unreported, WASC, 17 May 1994)
Lashansky v The Legal Practice Board of Western Australia [2012] WASC 16
Moore v Inglis (1976) 9 ALR 509
Moullin v Westralian Farmers Co-operative Ltd (Unreported, WASC, 31 August 1990)
Neil v Nott [1994] HCA 23; (1994) 121 ALR 148
Oceanic Sunline Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197
Palmdale Insurance Co (in liq) v L Grollo & Co Pty Ltd [1986] VR 408
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S)
Peruvian Guano Co Ltd v Bockwoldt [1883] 23 Ch D 225
Pickering v Centrelink [2008] FCA 561
Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152; (1999) 161 ALR 548
Riches v Director of Public Prosecutions [1973] 1 WLR 1019
Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19
Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251
Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398
Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360
Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Scott v Bowden [2002] HCA 60; (2002) 194 ALR 593
Tardy v The Secretary of the Department of Community Services and Health (Unreported, NSWSC, 9 October 1990)
Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212
Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507
Valdez v Frazer [2017] FamCAFC
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509

VAUGHAN J:

Introduction

On or about 18 May 2018 the applicant, Mr Drewfus Gates, attempted to file a writ of summons. A registrar directed that the writ not be accepted for filing without leave of a judge having been first obtained under O 67 r 5 of the Rules of the Supreme Court 1971 (WA). Mr Gates then filed an ex parte originating motion seeking leave to file and issue the proposed writ.
By the originating motion Mr Gates asserts that he is the victim of a tort. It is said that the 'tort is of such an extreme nature that the Statutes of Limitation do not apply'.
Mr Gates is a self-represented litigant with no legal training. Accordingly, it is necessary to approach the proposed writ with some flexibility to assess whether it discloses a viable cause of action which, with appropriate amendment, could be put into proper form.[1] Care must also be taken to ensure that Mr Gates' rights are not obfuscated by his own advocacy.[2]
[1] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 - 537.
[2] Neil v Nott [1994] HCA 23; (1994) 121 ALR 148, 150.
Affording Mr Gates due allowances so far as he is a self‑represented litigant, I am nevertheless satisfied that Mr Gates' proposed writ would be an abuse of the process of the court and would be a frivolous and vexatious proceeding. For the reasons developed below I will refuse the application seeking leave to file and issue the proposed writ.

Background facts

Mr Gates' application was supported by an affidavit sworn on 26 June 2018. The affidavit was short. It stated:
In 2001 I was deliberately, maliciously damaged in Royal Perth Hospital. I am claiming damages against the Defendant [name not reproduced]. I have attached a Writ '1', a Notice of Originating Motion '2' and a Letter of Demand '3' that was not responded to, which further explain the matter.
I have not reproduced the name of the intended defendant. It is not necessary that I do so for the reader of these reasons to understand the issues I am to determine and the basis for my conclusion. The name of the intended defendant appears in Mr Gates' affidavit and the draft writ. But the intended defendant is not before the court and is not aware of these proceedings. Accordingly, the intended defendant has not been able to answer the allegations made by Mr Gates. In the circumstances it would be unjust and unfair to name the intended defendant in these reasons.
The draft writ extends over 11 pages. It finishes with a claim for damages and costs. It commences with what is said to be a 'Statement of Claim' but is not identifiable as a statement of claim in accordance with O 20 r 2 and r 8 of the Rules of the Supreme Court. In reality it is the indorsement required by O 6 r 1 rather than a statement of claim. The so‑called 'Statement of Claim' refers to Mr Gates' date of birth and occupation. It then recounts circumstances in which Mr Gates was injured in a fire in Central Australia on 9 September 2001. Following the fire Mr Gates was apparently flown to Royal Perth Hospital. Mr Gates says that he spent from 10 September 2001 to 13 December 2001 at Royal Perth Hospital.
The 'Statement of Claim' then provides:
During this period [ie 10 September 2001 to 13 December 2001] I suffered what I felt was 'Cruel and Unusual Punishment', 'Torture' and 'Malicious Damage' at the hands of [name not reproduced]. This is the legal basis of my Claim. I make the following claims to the best of my knowledge, knowing that I was often in various states of consciousness largely due to large injections of Metoprolol.
The draft writ then sets out, over some nine pages, what are said to be 'Specific Claims'. While the initial paragraph sets out a factual assertion, said to give context to what follows, there are otherwise some 41 heads of claim or damage. That these comprise sub-claims rather than a pleading of material facts, such as might be found in a statement of claim, was confirmed by Mr Gates in the course of his oral submissions.
I do not intend to repeat the material in the 'Specific Claims'. The document is polemical in nature and advances extravagantly expressed allegations of misconduct on the part of the intended defendant. It suffices to say that in respect of alleged conduct in the course of Mr Gates' medical treatment there are a series of exceptionally serious allegations levelled against the intended defendant (although I should note that it is alleged that, among other things, certain medical procedures were carried out with inadequate consent). Many of those allegations would be liable to be struck out if the draft writ was to be filed and issued as the allegations are scandalous.
In the circumstances it is inappropriate to repeat the material in the 'Specific Claims' more fully. That is all the more so when: (1) first, the intended defendant is not before the court and is unable to respond to the allegations; and (2) second, Mr Gates' affidavit does not itself seek to verify the allegations.
In any case, questions necessarily arise as to what is asserted in parts of the 'Specific Claims' insofar as Mr Gates purports to record what happened to him while passed out, subject to cardiac arrest or affected by medications (the latter being acknowledged, at least in part, in the portion of the 'Statement of Claim' reproduced in par 8 above).
The 'Specific Claims' section also includes various alleged injuries and health consequences said to have been suffered by Mr Gates as a result of the impugned conduct.
The Letter of Demand is in fact attachment '2' rather than, as stated in the affidavit, attachment '3'. The Letter is dated 5 December 2017. It does not take matters much further, although it confirms that the actions complained of occurred in 2001. The Letter asserts that the intended defendant acted 'beyond the limits of negligence to the point of wilful damage and cruelty'. It concludes with a demand to be paid $750,000.
Attachment '3', the Notice of Originating Motion, is a slightly different version of the originating motion by which Mr Gates seeks leave to file the draft writ. It need not be further considered.
In the course of oral submissions Mr Gates informed me that he had not been told why the registrar did not accept the draft writ for filing. Mr Gates also said, in substance, that he styled the draft writ as a claim for 'malicious damage' (more correctly as claims for 'cruel and unusual punishment', 'torture' and 'malicious damage') because he was concerned that the time for other more usual claims (Mr Gates made mention of 'malpractice or bad medicine') would have passed. Mr Gates' knowledge of and concern as to the operation of limitation periods for the bringing of a claim is apparent from the statement in the originating motion that the limitations statutes do not apply because of the extreme nature of the alleged torts.
Mr Gates said that he was of the understanding that limitation periods would not apply to the sort of claims he wished to pursue. However, he was not in a position to direct me to any legal authorities in support of that understanding.

Legal framework

Order 67 r 5 of the Rules of the Supreme Court provides:
(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.
The requirement for leave of a master or judge to file or issue a writ which appears to a registrar to be an abuse of process or a frivolous or vexatious proceeding 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.[3]
[3] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312.
Order 67 r 5(1) does not state the criteria that is to be applied in determining whether to grant or refuse leave to file or issue a proposed writ. However, it is accepted that a judge or master should refuse leave to file or issue only if satisfied that the writ would be an abuse of process or a frivolous or vexatious proceeding.[4] Moreover, the caution attendant upon the exercise of the power of summary dismissal elsewhere in the Rulesof the Supreme Court applies with no less force in the context of O 67 r 5.[5]
[4] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S) [23].
[5] Perpetual Trustees Victoria Ltd v Allen [23].
Accordingly, the question for determination is whether Mr Gates' proposed writ would be an abuse of process or a frivolous or vexatious proceeding.
In his oral submissions Mr Gates was at pains to explain that the draft writ was neither frivolous nor vexatious. Mr Gates submitted that it was a real claim and that he was not a vexatious person. As to abuse of the process of the court, Mr Gates said that he had done the best he could do to comply with the court's requirements; and, if there was more that needed to be done, he would do it. Mr Gates submitted that he did not seek to abuse the court's process.
I accept that Mr Gates genuinely believes he has a real claim. I also accept that Mr Gates has no improper motive in seeking to invoke the court's jurisdiction. To the contrary, Mr Gates considers that he has cause to seek redress and he seeks to file the draft writ so as to seek that redress.
However, those submissions do not answer whether Mr Gates' proposed writ would be an abuse of process of the court or a frivolous or vexatious proceeding. Those terms have acquired a technical legal meaning in the present context as opposed to the more generalised way in which Mr Gates approached the phrases found in O 67 r 5(1).
There is considerable overlap between the concepts of 'abuse of process' and whether a proceeding is 'frivolous' or 'vexatious'. The expressions are often used in conjunction or interchangeably.
What amounts to an abuse of the court’s process is insusceptible of a formulation comprising closed categories.[6] 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.[7] 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.[8] However, the onus of satisfying the court that there is an abuse of process is a heavy one.[9] The power to dismiss proceedings as an abuse of process should be exercised with caution[10] and only in the most exceptional or extreme case.[11]
[6] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9].
[7] Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378, 393.
[8] Tomlinson v Ramsey Food Processing Pty Ltd [2015] HCA 28; (2015) 256 CLR 507 [25]; Timbercorp Finance Pty Ltd (in liq) v Collins [2016] HCA 44; (2016) 259 CLR 212 [69].
[9] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, 529.
[10] Moore v Inglis (1976) 9 ALR 509, 516.
[11] Walton v Gardiner (392).
In Rogers v The Queen McHugh J observed:
Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: (1) the court’s procedures are invoked for an illegitimate purpose; (2) the use of the court’s procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court’s procedures would bring the administration of justice into disrepute.[12]
[12] Rogers v The Queen [1994] HCA 42; (1994) 181 CLR 251, 286.
Subsequently, in Ridgeway v The Queen, Gaudron J referred to 'abuse of process' in terms that included within the concept the notion of proceedings that are frivolous, vexatious or oppressive. Her Honour's observations bear repeating:
The powers to prevent an abuse of process have traditionally been seen as including a power to stay proceedings instituted for an improper purpose, as well as proceedings that are 'frivolous, vexatious or oppressive'. This notwithstanding, there is no very precise notion of what is vexatious or oppressive or what otherwise constitutes an abuse of process. Indeed, the courts have resisted, and even warned against, laying down hard and fast definitions in that regard. That is necessarily so. Abuse of process cannot be restricted to 'defined and closed categories' because notions of justice and injustice, as well as other considerations that bear on public confidence in the administration of justice, must reflect contemporary values and, as well, take account of the circumstances of the case. That is not to say that the concept of 'abuse of process' is at large or, indeed, without meaning. As already indicated, it extends to proceedings that are instituted for an improper purpose and it is clear that it extends to proceedings that are 'seriously and unfairly burdensome, prejudicial or damaging' or 'productive of serious and unjustified trouble and harassment'.[13] (citations omitted)
[13] Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19, 74 - 75. These observations were referred to with apparent approval by the plurality in Batistatos v Roads and Traffic Authority of New South Wales [14].
Proceedings will constitute an abuse of process if they are clearly doomed to fail[14] or are plainly unsustainable.[15]
[14] Walton v Gardiner (393).
[15] Perpetual Trustees Victoria Ltd v Allen [23].
In the context of an application to strike out a claim or pleading the terms 'frivolous' and 'vexatious' have often been used interchangeably.[16] For example, an action is frivolous if it is obviously (or plainly)[17] unsustainable and an abuse of the process of the court.[18] It may for the same reason be categorised as vexatious.[19]
[16] Pridmore v Magenta Nominees Pty Ltd [1999] FCA 152; (1999) 161 ALR 548 [24].
[17] Perpetual Trustees Victoria Ltd v Allen [23].
[18] Samuels v Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [11].
[19] Peruvian Guano Co Ltd v Bockwoldt [1883] 23 Ch D 225, 230.
An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless.[20] So too a matter that is without substance or is fanciful is frivolous.[21] The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed[22] or in which there is no serious question to be tried.[23] An action is vexatious if it has no reasonable prospects of success.[24] The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed.[25]
[20] Valdez v Frazer [2017] FamCAFC 18 [9].
[21] Pickering v Centrelink [2008] FCA 561 [27].
[22] Pridmore v Magenta Nominees Pty Ltd [24].
[23] Samuels v Western Australia [11].
[24] Valdez v Frazer [9].
[25] Pridmore v Magenta Nominees Pty Ltd [24].
Apart from the hopeless case - those that are obviously untenable or manifestly groundless - an action may be vexatious due to the motive of the litigant. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought. So too proceedings are vexatious if they are brought for collateral purposes.[26]
[26] Attorney General (NSW) v Wentworth (1988) 14 NSWLR 481, 491.
A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment.[27]
[27] Oceanic Sunline Special Shipping Co Inc v Fay [1988] HCA 32; (1988) 165 CLR 197, 247.

Consequence of the expiration of applicable limitation period

Mr Gates has suggested that the claims specified in the draft writ are not subject to a statutory bar due to the expiration of an applicable limitation period. However, as will be seen, prima facie there is a limitation period that is potentially applicable. Accordingly, it is necessary to consider whether the proposed writ would be an abuse of process or a frivolous or vexatious proceeding on the basis that Mr Gates' proposed claims are statute barred.
The alleged acts Mr Gates complains of, and the damage he alleges was suffered as a result, arose during the latter part of 2001. Based on the allegations in the draft writ the latest date on which the claims arose was 13 December 2001.
The applicable limitation statute is the Limitation Act 1935 (WA).[28] By s 38(1)(c)(vi) it provides for actions and proceedings founded on tort (which category would incorporate claims such as those the subject of the draft writ) to be commenced within six years after the cause of the action or proceedings. Accordingly, it is to be expected that any claim by Mr Gates in terms of the draft writ would be met by a defence on the part of the intended defendant to the effect that the statutory limitation period has expired. The question for present purposes is whether that means that the proposed writ is an abuse of process or a frivolous or vexatious proceeding.
[28] In general the limitation periods provided for under the Limitation Act 2005 (WA) only apply to causes of action that accrue on or after 15 November 2005: s 2 and s 4. Subject to exceptions that are not presently relevant, where a cause of action accrued before 15 November 2005 it is the Limitation Act 1935 (WA) that is applicable: Lashansky v The Legal Practice Board of Western Australia [2012] WASC 16 [27] - [29].

There are two ways in which a limitation statute may operate. Some statutory limitation provisions operate to extinguish the cause of action once a time limits expires. Others only bar the remedy. Section 38 of the Limitation Act 1935 (WA) operates to bar the remedy rather than extinguish the cause of action.[29] As the Law Reform Commission of Western Australia explained:
The major practical effect of this distinction is that if the running of the period merely bars the plaintiff’s right of action, it is possible for the defendant to waive his rights if he chooses to do so. A limitation defence must be specially pleaded and if the defendant chooses not to plead the defence the plaintiff’s claim can proceed despite the expiry of the limitation period. In the exceptional cases in which the running of the period does extinguish the right, the rule is different …[30] (citations omitted)
[29] Law Reform Commission of Western Australia, Report on Limitation and Notice of Actions, Final Report (1997) [7.56].
[30] Law Reform Commission of Western Australia, Report on Limitation and Notice of Actions, Final Report (1997) [7.57].
Additionally, a defendant may be estopped from asserting a limitation defence if the conditions for an estoppel are satisfied.[31]
[31] Commonwealth v Verwayen [1990] HCA 39; (1990) 170 CLR 394, 407, 452 - 453.
Where a limitation provision bars the remedy, meaning that it is for the defendant to plead the statute by way of defence, a statement of claim will not be struck out as disclosing no reasonable cause of action merely because the limitation period expired before the issue of the writ.[32] It is otherwise in those jurisdictions, such as New South Wales, where a limitation period extinguishes the cause of action. There the claim may be summarily dismissed as disclosing no reasonable cause of action.[33]
[32] Riches v Director of Public Prosecutions [1973] 1 WLR 1019, 1027.B - E; Ronex Properties Ltd v John Laing Construction Ltd [1983] QB 398, 404.C - F, 405.B, 408.B - C; Palmdale Insurance Co (in liq) v L Grollo & Co Pty Ltd [1986] VR 408, 409; Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [2001] FCA 703; (2001) 112 FCR 336 [37].
[33] Tardy v The Secretary of the Department of Community Services and Health (Unreported, NSWSC, 9 October 1990) 7.
There are a number of authorities that have considered whether a claim that is subject to a limitation bar (rather than extinguishment) may be struck out on the ground that it is frivolous or vexatious or an abuse of the process of the court.
In Riches v Director of Public Prosecutions Stephenson LJ accepted that a statute barred claim may be struck out as an abuse of process of the court; but that was in circumstances where it was clear from the summons that the statute was going to be relied on and counsel had informed the court that he had express instructions to rely on the statute.[34] Lawton LJ was of the same opinion.[35] Both grounded their view on the basis that no resources should be wasted on litigation which could only end with the failure of the plaintiff's claim.
[34] Riches v Director of Public Prosecutions (1026.E).
[35] Riches v Director of Public Prosecutions (1027.B - E).
Similar obiter observations were made in Ronex Properties Ltd v John Laing Construction Ltd. There Stephenson LJ stated:
There are many cases in which the expiry of the limitation period makes it a waste of time and money to let a plaintiff go on with his action. But in those cases it may be impossible to say that he has no reasonable cause of action. The right course is therefore for a defendant to apply to strike out the plaintiffs' claim as frivolous and vexatious and an abuse of the process of the court, on the ground that it is statute-barred. Then the plaintiff and the court know that the Statute of Limitations will be pleaded; the defendant can, if necessary, file evidence to that effect; the plaintiff can file evidence of an acknowledgment or concealed fraud or any matter which may show the court that his claim is not vexatious or an abuse of process …[36]
[36] Ronex Properties Ltd v John Laing Construction Ltd (408).
Donaldson LJ said to similar effect:
Where it is thought to be clear that there is a defence under the Limitation Acts, the defendant can either plead that defence and seek the trial of a preliminary issue or, in a very clear case, he can seek to strike out the claim upon the ground that it is frivolous, vexatious and an abuse of the process of the court and support his application with evidence. But in no circumstances can he seek to strike out on the ground that no cause of action is disclosed.[37]
[37] Ronex Properties Ltd v John Laing Construction Ltd (405).
In both Riches v Director of Public Prosecutions and Ronex Properties Ltd v John Laing Construction Ltd the acceptance that a limitation barred action may be struck out on the ground that it was frivolous or vexatious or an abuse of process was dependent on the defendant making clear that it would rely on a limitation defence.
The non‑New South Wales[38] Australian authorities are less embracing of the possibility that a statute barred claim may be struck out as an abuse of process or on the ground that it is frivolous or vexatious. In Palmdale Insurance Co (in liq) v L Grollo & Co Pty Ltd Vincent J considered that Stephenson LJ, in the passage referred to above at par 39, had not presented the issue correctly.[39] Vincent J considered that it was not legitimate to infer from the fact that the relevant limitation period had expired that a claim was prima facie frivolous, vexatious or an abuse of the process of the court.[40] In Vincent J's view, unless there was something more which raised an adverse inference, the plaintiff ought not be required to justify the proceedings prior to the delivery of a defence.[41] It was not enough that the defendant's solicitor swore an affidavit to the effect that he had been instructed to take the defence that the proceedings were barred by reason of the limitation statute.
[38] The New South Wales authorities stand apart as they consider the issue in a different statutory context - one where the statutory limitation provision provides for extinguishment of the right rather than a bar to the remedy. Hence, in the same way that a cause that has been extinguished discloses no reasonable cause of action, proceedings agitating that cause may be an abuse of process. See eg Gillies v Moir [2014] NSWSC 1481 [89] - [90].
[39] Palmdale Insurance Co (in liq) v L Grollo & Co Pty Ltd (409).
[40] Palmdale Insurance Co (in liq) v L Grollo & Co Pty Ltd (409).
[41] Palmdale Insurance Co (in liq) v L Grollo & Co Pty Ltd (409 - 410).
French J (as his Honour then was) reviewed the authorities in Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd. His Honour concluded:
To plead a cause of action which is, on the face of it, out of time cannot, without more, amount to an abuse of process where the expiry of the limitation period does not extinguish the cause of action. For until the respondent has pleaded it is not known whether the statutory time bar will be raised. And if the time limitation is pleaded, the applicant may raise in reply some plea such as waiver or estoppel on the part of the respondent. It is not always the case that a respondent will plead the limitation point. In some cases, particularly when the respondent has been aware of the applicant's concerns for a long time and that action is a possibility, it may regard it as inappropriate to raise the plea. For the same reasons, it cannot be said that the commencement of proceedings out of the time defined by a non-extinguishing limitation provision is frivolous or vexatious.[42]
[42] Carey-Hazell v Getz Bros & Co (Aust) Pty Ltd [38].
Those observations were made in a context where a defendant sought to strike out a claim on the grounds, among others, that the proceedings were frivolous or vexatious or an abuse of the process of the court because of a limitation issue. Accordingly, the defendant had manifested an intention to rely on a limitation defence.
There are Western Australian cases where, without elaboration, proceedings have been struck out as frivolous or vexatious and an abuse of process where the court has concluded that the action is clearly statute barred.[43] But in those cases the defendant had raised the limitation defence and unequivocally evinced an intention to rely on it. The cases were thus consistent with Riches v Director of Public Prosecutions and Ronex Properties Ltd v John Laing Construction Ltd.
[43] See eg Moullin v Westralian Farmers Co-operative Ltd (Unreported, WASC, 31 August 1990) 3 - 4; Keating v Woods (Unreported, WASC, 17 May 1994) 13. The possibility is also noted in Saldanha v Fujitsu Australia Ltd [No 2] [2011] WASC 360 [98].
To the extent that there are differences between the English Court of Appeal authorities in Riches v Director of Public Prosecutions and Ronex Properties Ltd v John Laing Construction Ltd as opposed to the Australian authorities, I consider that French J's exposition in Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd sets out the law in Australia. Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd is the most recent authority. French J also provides the most comprehensive review of the authorities and a conclusion that is consistent with the principle that a cause of action is not extinguished by the expiry of a limitation period. The statement of principle in Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd is also consonant with the warning of the plurality in Wardley Australia Ltd v Western Australia[44] that it is undesirable that limitation questions should be decided in interlocutory proceedings except in the clearest of cases.
[44] Wardley Australia Ltd v Western Australia [1992] HCA 55; (1992) 175 CLR 514, 533.
In truth, and all the more so given the present factual context, the practical difference between the English and Australian authorities is minor. The English cases countenance a strike out application based on the grounds of abuse of process or that the proceedings are frivolous or vexatious only: (1) in a very clear case; and (2) where the defendant has made it clear that it will rely on the expiration of the statutory limitation period as a defence. While under Carey‑Hazell v Getz Bros & Co (Aust) Pty Ltd it may not be possible to characterise the proceedings as an abuse of the process of the court, or frivolous or vexatious, it will still be possible for the defendant to apply for summary dismissal under O 16 of the Rules of the Supreme Court on the basis that the defendant has a good defence on the merits.
I must bear in mind that I am assessing Mr Gates' draft writ at an earlier time to that at which the claims in the various authorities I have referred to were challenged as being an abuse of process or a frivolous or vexatious proceeding. Importantly, I am assessing the proposed writ before it is known whether the intended defendant will raise the limitation defence; and, if so, what answer, if any, might be given by Mr Gates. For plainly, on the authorities, Mr Gates is only called upon to answer the limitation defence when it is made. The expiry of the relevant limitation period is irrelevant until the defendant raises the plea in bar to the remedy. Until that time the question of limitation does not arise for consideration by the court.[45]
[45] Commonwealth v Mewett (1995) 59 FCR 391, 398.
In the circumstances it is both incorrect in principle and contrary to authority to conclude, without more, that the proposed writ is an abuse of process or a frivolous or vexatious proceeding merely because it might be that a claim by Mr Gates would be met by a successful limitation defence on the part of the intended defendant. The expiry of the limitation period does not extinguish the cause of action. And as matters presently stand - the proposed writ not having been filed and issued let alone served - it is not known whether the limitation point will be taken.
Accordingly, even if Mr Gates' proposed claim is statute barred by reason of the operation of the Limitation Act 1935 (WA), it does not follow that, as matters presently stand, the proposed writ is an abuse of process or a frivolous or vexatious proceeding. I would not refuse leave to file and issue the draft writ for limitation reasons alone. I should make clear, however, that nothing in this conclusion affects what I, or another judicial officer, may conclude if the proposed writ was issued and the intended defendant then sought to strike out the writ. As my review of the authorities shows, in that factual context a different outcome may prevail.

Disposition

It remains necessary to determine whether, putting aside the limitation issue, Mr Gates' proposed writ would be an abuse of process or a frivolous or vexatious proceeding.
At the outset, even allowing for Mr Gates' status as a self-represented litigant, it should be recorded that the draft writ fails to comply with the base requirements of O 6 r 1 of the Rules of the Supreme Court. In no way could the 11 pages of discursive and argumentative assertion contained in the draft writ be described as 'a concise statement of the nature of the claim made'.
Mr Gates sought to explain his approach to the document on the basis that there was no way to disentangle the flow of events, the medical facts and the consequential damages without making the document twice as long and making it harder for the court to grasp the whole situation.
Giving all due allowances for Mr Gates' status as a self-represented litigant, I respectfully disagree with this rationale. A self-represented litigant is subject to the rules of the court in the same way as all other litigants. The Rules of the Supreme Court are designed to enhance the efficiency and economy of litigation and reduce the unnecessary expenditure of private and public resources. The production of a writ with a concise statement of the nature of the claim made, in the sense of disclosing the causes of action relied on, suffices to give notice of the plaintiff's claim and the cause for that claim. The document produced by Mr Gates is more likely to obscure than it is to notify. And its argumentative nature will inevitably lead to interlocutory disputation if leave is granted to file and issue the document as a writ.
The non-compliance with the Rules is aggravated by the scandalous nature of a number of the irrelevant allegations contained in the document. That is all the more so when it is recalled that a writ is a public document that may be inspected by any member of the public without leave.[46]
[46] Rules of the Supreme Court O 67B r 6(3).
As well as the burdensome nature of the draft writ, consideration must be given to the three causes of action identified within it as providing the legal basis for Mr Gates' claim: the alleged torts said to have been suffered by Mr Gates comprising of 'cruel and unusual punishment', 'torture' and 'malicious damage'.
There are no stand-alone torts of 'cruel and unusual punishment' or 'malicious damage' as a matter of Australian law. In terms of intentional wrongs comprising trespass and intentional interference with the person the standard text refers to torts of assault and battery, false imprisonment and emotional distress.[47] To those might be added, more generally, trespass to the person in the sense of intentional physical harm without lawful justification or excuse.[48]
[47] C Sappideen and P Vines, Fleming's The Law of Torts (10th ed, 2011) [2.160] - [2.120].
[48] C Sappideen and P Vines, Fleming's The Law of Torts (10th ed, 2011) [2.10] - [2.20]. See eg Bunyan v Jordan [1937] HCA 5; (1937) 57 CLR 1, 10.
There is a Canadian academic article that proposes the judicial recognition of a 'tort of torture' at common law; it calls for the creation of a new cause of action in tort based in part on the internationally defined prohibition and on a novel form of trespass.[49] But this is concerned with injurious acts performed, ordered, consented to or acknowledged by a public official rather than private acts.[50] It would not apply to Mr Gates' allegations against the intended defendant. In any event, as is implicit in the call for recognition of a new cause of action, there is no nominate tort of torture in Canadian law.[51] That is also the position in Australia. For example, the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is not part of the municipal law of Australia and creates no legally enforceable rights in Australian courts.[52] It is not for a single judge to recognise some new tort of torture as is propounded in Mr Gates' draft writ.
[49] F Larocque, 'The Tort of Torture' (2009) 17 Tort Law Review 158.
[50] F Larocque, 'The Tort of Torture' (2009) 17 Tort Law Review 158, 161.
[51] F Larocque, 'The Tort of Torture' (2009) 17 Tort Law Review 158, 158.
[52] Scott v Bowden [2002] HCA 60; (2002) 194 ALR 593 [7]. But cf the Crimes (Torture) Act 1988 (Cth) which gives effect in Australia as to certain provisions of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
Accordingly, 'cruel and unusual punishment', 'torture' and 'malicious damage' are not recognised stand-alone torts under Australian law.
I accept that some of the heads of claim within the 'Specific Claims' in the draft writ might be made to fit within a recognised cause of action; for example, in negligence, assault and battery, or other intentional trespass to the person causing physical harm. But that is not to the point. Mr Gates has chosen - for reasons he explained as being grounded in a particular belief as to the operation of the applicable statutory limitation regime - to rely on particular legal bases for his claim. He has identified particular 'causes of action' on which he relies. Whether the proposed writ would be an abuse of process or a frivolous or vexatious proceeding must be determined based on the draft writ as it presently stands.
In my opinion a claim based on 'cruel and unusual punishment', 'torture' and 'malicious damage' is not known to law and is doomed to fail.
The present case is not, in my view, one in which the draft writ discloses a viable cause of action which, with appropriate amendment, could be put in a proper form. Rather, what is required is a wholly new indorsement that addresses the recognised causes of action which might entitle Mr Gates to relief (recognising that any such entitlement may be subject to the operation of the Limitation Act 1935 (WA)). It is not for the court to suggest the form that such a new indorsement might take, let alone draft the indorsement. To do so would be to go beyond the appropriate assistance that the court might offer to a self-represented litigant.
It follows from what I have said that I am only ruling on whether a writ in the form of the present draft writ would constitute an abuse of process of the court or a frivolous or vexatious proceeding. If, following delivery of these reasons, Mr Gates seeks to file another writ with a different indorsement it will be necessary to assess it having regard to the matters I have raised in these reasons.
Finally, and in my view critically, the plaintiff has not adduced evidence in admissible form of any facts which might found a cause of action. I have already referred to the limited nature of Mr Gates' supporting affidavit. It amounts to no more than an asseveration that in 2001 Mr Gates was deliberately and maliciously damaged in Royal Perth Hospital. While the affidavit refers to the draft writ and the Letter of Demand it in no way verifies any of the factual contentions specified in those documents. It might be difficult for Mr Gates to do so to the extent that, as is apparent from the draft writ, Mr Gates makes assertions as what happened to him while passed out, subject to cardiac arrest or affected by medication.

The absence of appropriate supporting affidavit evidence is a material matter. Order 67 r 5(4) of the Rules of the Supreme Court requires that the application for leave to file and issue the draft writ be supported by affidavit. The intention is that litigants who present a writ for filing that appears to a registrar to be an abuse of the court's process, or a frivolous or vexatious proceeding, be required to depose to the factual contentions advanced in support of their claims - thereby being exposed to the usual sanctions if the contentions are knowingly or recklessly false. The sub-rule imposes a necessary safeguard not to be lightly overlooked in considering an application under either O 67 r 5(2) or O 67 r 5(3).
Although Mr Gates is a self-represented litigant, he was aware of the necessity to file an affidavit that supported his application for leave to file and issue the proposed writ. The originating motion was filed without any supporting affidavit. On 20 June 2018, by email from my Associate and later confirmed by post, Mr Gates was informed of the terms of O 67 r 5(4) and the need to file a supporting affidavit. It was requested that Mr Gates file his affidavit by 9 July 2018. Mr Gates' affidavit sworn on 26 June 2018 was the sole result of that communication.
In the circumstances I am satisfied that Mr Gates' proposed writ would be an abuse of the process of the court and would be a frivolous and vexatious proceeding.
I reach this conclusion for the three reasons I have just described. First, the polemical nature of the document which itself will cast an oppressive burden on the court and the intended defendant if it becomes necessary to further deal with the document as a writ commencing proceedings in the court. Second, the fact that the asserted legal basis for the claim in the draft writ raises three 'causes of action' unknown to Australian law, meaning that a claim in terms of the draft writ is doomed to fail. Third, the omission to adduce evidence, in admissible form, of facts which support the claim as made in the draft writ. For the reasons given earlier, however, I would not refuse leave to file and issue the draft writ for limitation reasons alone. At this pre-commencement stage of Mr Gates' claim the possibility that that proposed claim is statute barred by reason of the operation of the Limitation Act 1935 (WA) does not mean that the proposed writ is an abuse of process or a frivolous or vexatious proceeding.
As the legal basis advanced for the claim is unknown to law the proceedings are clearly doomed to fail. For that reason the writ would constitute an abuse of the process of the court. So too the proceedings as contemplated by the writ would be frivolous or vexatious.
The form of the draft writ will also, in my view, result in the proceedings being vexatious insofar as it will be productive of serious and unjustified trouble and harassment.
Finally, in all the circumstances - including the omission to support the claim with evidence beyond bald assertion - allowing Mr Gates to proceed to file and have issued the draft writ in its present form would bring the administration of justice into disrepute. Reasonable observers would regard it as wrong, and a matter of outrage, that Mr Gates' claim proceed in the terms of the draft writ when it has not been verified in any meaningful way and advances a claim on a legal basis that is unknown at law. Permitting litigation to proceed in terms of the claim set out in the draft writ would be contrary to contemporary values which demand the efficient and economical use of public and private resources, requiring that parties and the court conduct litigation so as to achieve the prompt and efficient resolutions of dispute consistent with the attainment of justice. For that additional reason I consider that the proposed writ would be an abuse of the process of the court.
For these reasons I will refuse Mr Gates' application. The order of the court will be that the application by ex parte originating motion dated 6 June 2018 for leave to file and issue the proposed writ of summons that is attachment '1' to Mr Gates' affidavit sworn 26 June 2018 is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AD
ASSOCIATE TO THE HONOURABLE JUSTICE VAUGHAN
18 JULY 2018