Re Supreme Court Rules 1971 (WA);
[2020] WASC 90
•18 MARCH 2020
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 a proper form.[1]
[1] Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, 536 ‑ 537.
I have also taken into account the supplementary written submissions made by the applicants on 14 March 2020 which address alleged violations by the proposed defendant of the human rights of the applicants and their families.
Factual background
The applicants' application was supported by more than 25 affidavits filed between 24 May 2019 and 4 September 2019. The affidavits set out the factual basis on which the applicants' claim is advanced.
I have not included the name of the proposed defendant in my reasons. In my view it is not necessary to identify them in order for these reasons to be read and understood. The proposed defendant is identified in both the affidavits and the Proposed Amended Writ. The proposed defendant is not before the court, is unaware of these proceedings and has not been able to answer the allegations. In my view, in all of the circumstances of this matter, it would be unfair to name the proposed defendant.
The Proposed Amended Writ includes an indorsement of claim which sets out the relief claimed by the applicants. I observe that in its current form, the indorsement does not comply with the Rules O 6 r 1(1) which requires the writ to be indorsed with a 'concise statement of the nature of the claim made, and of the relief or remedy required in the action'. At present, the indorsement is five pages and sets out in narrative form the allegations made by the applicants.
Legal principles to be applied under Order 67 rule 5
Order 67 r 5 of the Rules 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.
There are two main reasons for the requirement for leave of a master or judge to file a writ of summons 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 from the unwarranted waste of its time and resources and second, to avoid the loss that would otherwise be suffered by those required to defend actions which lack any substance.[2]
[2] 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 writ. However, from the express words used in the Rules, it is clear that I should only refuse leave to file or issue the writ if I am satisfied that the writ would be an abuse of process or a frivolous or vexatious proceeding.[3] In considering this issue, I adopt the same approach as that used in the exercise of the power of summary dismissal elsewhere in the Rules of the Supreme Court.[4]
[3] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S) [23].
[4] Ex parte Gates [2018] WASC 213 [20]; Perpetual Trustees Victoria Ltd v Allen [23].
Vaughan J in Ex parte Gates undertook a comprehensive review of the meaning of each of the terms 'abuse of process', 'frivolous' and 'vexatious' as follows:[5]
[5] Ex parte Gates [24] - [33].
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. 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.
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.'
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".' (citations omitted)
Proceedings will constitute an abuse of process if they are clearly doomed to fail or are plainly unsustainable.
In the context of an application to strike out a claim or pleading the terms 'frivolous' and 'vexatious' have often been used interchangeably. For example, an action is frivolous if it is obviously (or plainly) unsustainable and an abuse of the process of the court. It may for the same reason be categorised as vexatious.
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.
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.
A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment. (citations omitted)
Applicants' claim
In oral submissions, the first‑named applicant sought to explain why the draft writ was not an abuse of process or vexatious or frivolous.
I accept, on the basis of the affidavits filed, from the first‑named applicant's oral submissions and from the written submissions dated 14 March 2020, that the applicants genuinely believe that they have a claim against the proposed defendant and that they consider there is a proper basis upon which to seek redress. However, this does not answer the question that I am required to determine, namely whether the applicants' proposed writ would be an abuse of process of the court or a frivolous or vexatious proceeding.
The applicants' claim in the Proposed Amended Writ is advanced on three grounds: first there has been a breach of an oral contract; second, there has been a breach of copyright; and third, that the proposed defendant has breached a duty of care said to be owed to the applicants.
The Proposed Amended Writ sets out in narrative form the matters that are said to give rise to four different agreements, the breach of copyright and the breach of duty of care. The relief sought by the applicants includes orders for visas to be issued to overseas witnesses, orders for an apology to be given by the proposed defendant and one of its employees to the first‑named applicant and other people who are not parties to the Proposed Amended Writ, and for access to original footage.
Where a writ is proposed to be issued with an indorsement of claim (as opposed to a statement of claim), the indorsement should be a concise summary of the nature of the claim and the relief or remedy required. As was stated by McLure JA in ABB Service Pty Ltd v Hetherington:[6]
The nature and extent of the information necessary to meet the requirement that the endorsement contain a concise statement of the nature of the claim made in the relief or remedy required does not depend upon a rigid formula. Relevant information can be conveyed in different ways and adequacy is to be determined from the endorsement as a whole.
[6] ABB Service Pty Ltd v Hetherington [2001] WASCA 235 [11].
An indorsement on a writ is not a pleading and should not be read narrowly,[7] but generously.[8]
[7] Stone James v Pioneer Concrete (WA) Pty Ltd [1985] WAR 233, 239 (Burt J).
[8] Rayney v State of Western Australia [No 3] [2010] WASC 83 [36] (Martin CJ).
In determining whether the indorsement on the Proposed Amended Writ is adequate, it is important to bear in mind the three important functions that are served by an indorsement.[9] First, it informs the defendant of the nature of the claim made and the relief sought, enabling the defendant to determine whether they should enter an appearance and, if so, whether it should be a conditional or unconditional appearance. Second, it enables the defendant to determine whether a cause of action is contained in the writ, in particular by reference to the relevant Limitation Act. Third, it sets out the limits within which the statement of claim must be framed.
[9] Civil Procedure Western Australia (the Red Book) [6.1.1].
Disposition of application
All litigants, including self‑represented litigants, are bound to comply with the Rules of the Supreme Court. As stated by Vaughan J in Ex parte Gates:[10]
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.
[10] Ex parte Gates [57].
Even allowing for the applicants' status as self‑represented litigants, the draft writ does not comply with the requirements of the Rules O 6 r 1. The document that was sought to be filed is not 'a concise statement of the nature of the claim made'.
Turning first to the indorsement in respect of the alleged breach of contract. In its current form, the Proposed Amended Writ does not inform the proposed defendant of the dates on which the oral agreements arose, who the parties to the oral agreements are, or what the oral agreements were in relation to.
In respect of the alleged breach of copyright, the Proposed Amended Writ does not inform the proposed defendant who the owner of the copyright in the material referred in the indorsement of claim is, or the basis on which it is asserted that the applicants have a legal interest or ownership in footage that they did not personally take.
Turning to the alleged breach of duty, the Proposed Amended Writ does not set out when or the basis on which the applicants say the duty arises as a matter of law.
The Proposed Amended Writ also alleges the proposed defendant infringed the human rights of the applicants and their families. It is not clear from the Proposed Amended Writ how the applicants say that these rights are part of the law of Western Australia, how any claim can be brought on behalf of parties who are not proposed plaintiffs, or how these matters give them a cause of action against the proposed defendant.
In my view, each of these matters are required to be set out in the indorsement of claim to comply with its functions, as summarised above.
Finally, in respect of the relief sought in the Proposed Amended Writ, it is not clear as to the legal basis upon which it is asserted that the court has power to make some of the orders sought, or how they arise from the causes of action set out in the indorsement.
In these circumstances, it is my view that to permit the applicants to file the Proposed Amended Writ in its current form would bring the administration of justice into disrepute.
It follows from what I have said that if the applicants file a writ which complies with the Rules, it would be necessary to assess that writ having regard to the matters raised in these reasons.
For these reasons, I refuse the applicants' application. The order of the court will be that the application by ex parte originating motion dated 28 June 2019 for leave to file and issue a proposed writ of summons is refused.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ME
Associate to the Honourable Justice Hill18 MARCH 2020
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