Re the Governor of Western Australia; Ex Parte Keating

[2013] WASC 84

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   RE THE GOVERNOR OF WESTERN AUSTRALIA; EX PARTE KEATING [2013] WASC 84

CORAM:   McKECHNIE J

HEARD:   ON THE PAPERS

DELIVERED          :   15 MARCH 2013

FILE NO/S:   CIV 1068 of 2013

MATTER                :Vexatious Proceedings Restriction Act 2002 (WA)

IN THE MATTER of an application for leave to sue the Governor of Western Australia for damages for the Supreme Court of Western Australia illegally prohibiting OISIN GEOFFREY KEATING from being heard since 2002 to the present time by the Supreme Court of Western Australia as it is fully constituted (in contravention of s 6(1)(a) of the Vexatious Proceedings Restriction Act 2002 (WA))

AND

IN THE MATTER of an application for leave to sue the Governor of Western Australia for damages for the Supreme Court of Western Australia refusing to hearing action number 1986 of 1992 between OISIN GEOFFREY KEATING, plaintiff; DR SAMUEL JOHN PIERS WOODS, first defendant; and the MINISTER FOR HEALTH FOR WESTERN AUSTRALIA, second defendant

EX PARTE

OISIN GEOFFREY KEATING
Applicant

Catchwords:

Application to sue by vexatious litigant - Matter already determined - No new principles

Legislation:

Vexatious Proceedings Restriction Act 2002 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     No appearance

Solicitors:

Applicant:     No appearance

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

Attorney General v Keating [2000] WASC 93

Keating v Woods (Unreported, WASC, Library No 940247, 17 May 1994)

Re The Governor of Western Australia, Ex parte Keating [2007] WASC 323

Re The Governor of Western Australia; Ex parte Keating [2007] WASC 228

1. McKECHNIE J:  At the time fixed for the hearing of his application, Mr Keating did not appear.  After waiting for 15 minutes, I instructed the Orderly to call him within the precincts of the court.  There was no appearance.  Therefore I determine the application on the papers.

2. This is an application under the Vexatious Proceedings Restriction Act 2002 (WA) 'for leave to sue the Governor for damages for the Supreme Court illegally prohibiting the applicant from being heard since 2002 to the present time by the Supreme Court of Western Australia as it is fully constituted in contravention of s 6(1) of the Vexatious Proceedings Restriction Act'.

3. The essence of Mr Keating's error is apparent in his proposed notice of originating motion which commences:

   1.The Supreme Court of Western Australia (and not a judge alone) grant leave to sue ...

4. The Supreme Court Act 1935 (WA) s 6 establishes that the court is a superior court of record consisting of judges and other equivalent judicial officers.

5. The court's jurisdiction is divided.  The General Division exercises all of the jurisdiction of the Supreme Court other than the appellate jurisdiction under s 58(1).

6. In the Vexatious Proceedings Restriction Act entitled 'Interpretation', 'court' means the Supreme Court, a Judge, the District Court, or a District Court judge. 

7. Section 6 Vexatious Proceedings Restriction Act entitled 'Leave to Institute Proceedings':

   (1)An application for leave to institute proceedings, or proceedings of a particular class (in this section called the proceedings), that is required by an order under section 4(1)(b) is to be made -

   (a)in the case of proceedings in the Supreme Court, to the Supreme Court or a Judge;

   (b)in the case of proceedings in the District Court, to the District Court or a District Court Judge;

   (c)in the case of proceedings before any other court, to the court; or

   [(d)deleted]

   (e)in the case or proceedings before a tribunal, to the tribunal

   and is to be accompanied by an affidavit in support of the application.

8. The reference to 'Supreme Court' in s 6 is not a reference to the Full Bench or to the Court of Appeal but a reference to the court established under the Supreme Court Act. As the General Division exercises all the relevant jurisdiction of the court, s 6(1) of the Vexatious Proceedings Restriction Act gives a judge of the General Division the exercise of jurisdiction to grant or refuse leave to institute proceedings under the Vexatious Proceedings Restriction Act.

9. I have ample jurisdiction and authority to determine the application.  All of this was explained to the applicant in a judgment by E M Heenan J in 2007.

10. Why he persists with a hopeless application is unclear.

Merits of the application

1. The application to sue a doctor and Minister for Health and the Governor is supported by an affidavit. 

2. He has taken other action from time to time:  Re The Governor of Western Australia; Ex parte Keating [2007] WASC 228. In that action E M Heenan J pointed out the requirement under Vexatious Proceedings Restriction Act s 6(3) which requires the applicant 'to disclose all facts material to the application, whether supporting or adverse to the application, that are known to the applicant'. His affidavit manifestly fails to do that.

3. The applicant was declared a vexatious litigant in 2000:  Attorney General v Keating [2000] WASC 93. His present claim is a rehearsal of the allegations which have been before the court for many years in respect of which the declaration was originally made.

4. This proposed action is the same as the application which was refused by E M Heenan J:  Re The Governor of Western Australia, Ex parte Keating [2007] WASC 323 to which I have earlier made reference.

5. This application itself is vexatious and an abuse of process because of the attempt to relitigate matters which have been determined:  Keating v Woods (Unreported, WASC, Library No 940247, 17 May 1994). There is no substance in the applicant's contention requiring the application to be determined by the Supreme Court and not a judge alone.

6. The application is dismissed.