Re Supreme Court Rules 1971 (WA); - [2020] WASC 90

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RE SUPREME COURT RULES 1971 (WA); EX PARTE ALMSLMAWI [2020] WASC 90
CORAM:   HILL J
HEARD:   10 SEPTEMBER 2019
DELIVERED          :   18 MARCH 2020
FILE NO/S:   CIV 2133 of 2019

EX PARTE
HUSSAIN ALMSLMAWI
First-named First Plaintiff
PETER SCOTT
Second-named First Plaintiff
SATAR E ABDUL KADOM
Third-named First 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

Legislation:

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

Result:

Application dismissed

Category: B

Representation:

Counsel:

First-named First Plaintiff	:	In person
Second-named First Plaintiff	:	In person
Third-named First Plaintiff	:	In person

Solicitors:

First-named First Plaintiff	:	In person
Second-named First Plaintiff	:	In person
Third-named First Plaintiff	:	In person

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

ABB Service Pty Ltd v Hetherington [2001] WASCA 235
Ex parte Gates [2018] WASC 213
Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303
Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S)
Rayney v State of Western Australia [No 3] [2010] WASC 83
Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233
Wentworth v Rogers (No 5) (1986) 6 NSWLR 534

HILL J:

On or about 13 May 2019, the applicants attempted to file a writ of summons at the registry of the Supreme Court. On 15 May 2019, the Acting Principal Registrar directed that the writ not be accepted for filing without leave of a judge pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA) (Rules).
On 28 June 2019, the applicants filed an ex parte originating motion seeking leave to file and issue the proposed writ. By the originating motion, the applicants assert they have a claim for damages against the proposed defendant arising from an alleged breach of an oral agreement, for an alleged breach of copyright and for an alleged breach of duty of care.
The matter came on for hearing before me on 10 September 2019. Prior to the hearing, the applicants filed more than 25 affidavits in support of their claim. At the hearing, I made confidentiality orders in respect of all of the affidavits as well as the exhibits tendered at the hearing.
After the hearing, the applicants sought leave to file an amended proposed writ of summons. I granted leave and on 3 October 2019, received an amended proposed writ of summons dated 26 September 2019 (Proposed Amended Writ). In determining this application, I have considered whether leave should be granted to file and issue the proposed writ in the form of the Proposed Amended Writ.
At the time of hearing the application, the applicants were self‑represented litigants. In determining this application, I have considered the Proposed Amended Writ together with the numerous affidavits filed to assess whether a viable cause of action is disclosed which, with appropriate amendment, could be put into…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Supreme Court Rules 1971 (WA);

Details

AGLC: Re Supreme Court Rules 1971 (WA); [2020] WASC 90
Case: [2020] WASC 90
Decision Date: 18 MARCH 2020

CaseChat Overview and Summary

The matter before the court involved an application by the plaintiff for leave to file and issue a writ of summons under the Supreme Court Rules 1971 in Western Australia. The plaintiff sought to sue the defendant for alleged breaches of contract and misrepresentations. The court was required to determine whether the writ was an abuse of process or if it was frivolous or vexatious. This determination was crucial to decide whether the plaintiff should be permitted to proceed with their legal action.

The court examined whether the writ contained sufficient facts to establish a prima facie case, and whether the plaintiff had a reasonable prospect of success. The court also considered whether the writ was being used for an improper purpose or whether it was being pursued in bad faith. The plaintiff's previous legal history and the nature of the claims were also factors in the court's decision.

The court found that the writ was not an abuse of process, nor was it frivolous or vexatious. The court held that the plaintiff had provided sufficient facts to establish a prima facie case and had a reasonable prospect of success. The court also found that the writ was not being used for an improper purpose or in bad faith. As a result, the court granted the plaintiff's application for leave to file and issue the writ of summons.

The court ordered that the plaintiff be granted leave to file and issue the writ of summons, and that the defendant be served with the writ. The court also ordered that the matter be listed for further directions. The plaintiff was also ordered to pay the defendant's costs of the application.

Orders