Re the Governor of Western Australia: Ex Parte Keating
[2007] WASC 323
•17 December 2007
RE THE GOVERNOR OF WESTERN AUSTRALIA; EX PARTE KEATING [2007] WASC 323
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 323 | |
| Case No: | CIV:2073/2007 | 17 DECEMBER 2007 | |
| Coram: | EM HEENAN J | 16/12/07 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed Directions given that any future application by this applicant not be listed for hearing without prior direction of a judge after consideration of the papers | ||
| B | |||
| PDF Version |
| Parties: | OISIN GEOFFREY KEATING |
Catchwords: | Vexatious proceedings Leave to commence proceedings sought by declared vexatious litigant No appearance Repeated applications for leave with no prospects of success Abuse of process Directions |
Legislation: | Vexatious Proceedings Restriction Act 2002 (WA), s 6(1)(a) |
Case References: | Re The Governor of Western Australia; Ex Parte Keating [2007] WASC 228 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
OISIN GEOFFREY KEATING
Applicant
Catchwords:
Vexatious proceedings - Leave to commence proceedings sought by declared vexatious litigant - No appearance - Repeated applications for leave with no prospects of success - Abuse of process - Directions
Legislation:
Vexatious Proceedings Restriction Act 2002 (WA), s 6(1)(a)
Result:
Application dismissed
Directions given that any future application by this applicant not be listed for hearing without prior direction of a judge after consideration of the papers
(Page 2)
Category: B
Representation:
Counsel:
Applicant : No appearance
Solicitors:
Applicant : No appearance
Case(s) referred to in judgment(s):
Re The Governor of Western Australia; Ex Parte Keating [2007] WASC 228
(Page 3)
1 EM HEENAN J: There is before the court a notice of originating motion dated 24 October 2007, taken out by the applicant Oisin Geoffrey Keating. By this notice of motion Mr Keating seeks an order pursuant to s 6(1)(a) of the Vexatious Proceedings Restriction Act 2002 (WA) that he be granted leave to sue for general and exemplary damages the Governor of Western Australia for refusing to cause the prosecution of Dr Samuel John Piers Woods, a medical practitioner, for attempting to murder Oisin Geoffrey Keating in Bunbury Regional Hospital in April 1976. It is said that the grounds of the application are contained in the affidavit of Mr Keating of 24 October 2007 in support of the application.
2 There is also a supplementary notice of motion dated 19 October 2007 taken out by Mr Keating in which he seeks a similar order from the Full Court of the Supreme Court. However, the registry staff, acting in conformity with standard practice, amended the application to make it returnable before a single judge in court today. Hence it is before me. In that amended form it adds nothing to the application already before the court.
3 The affidavit of Mr Keating of 24 October 2007 in support of the application as originally filed sets out the background, which has been canvassed in this court many times before, in support of his application for leave to sue the Governor of Western Australia for his alleged failure to ensure the prosecution of Dr Woods for alleged attempted murder.
4 The supplementary affidavit of 19 November 2007 deposes that the listings coordinator of this court has a vendetta against Mr Keating by prohibiting him from being heard before the Full Court in violation of s 6(1)(a) of the Vexatious Proceedings Restriction Act as alleged. The affidavit asserts that the listings coordinator said to Mr Keating by telephone that s 6(1)(a) of the Act provides that applications for leave to sue in the Supreme Court are to be made to a 'judge' or to the 'Supreme Court' and that a 'judge' and the Supreme Court are exactly the same thing. According to Mr Keating, this is a lie. He goes on to say that he swears this affidavit in support of leave to sue the Governor of Western Australia and because the registry staff are prohibiting him from being heard by the Full Court of the Supreme Court by listing this application before a judge in chambers. I should add that these are not the first such applications by Mr Keating. Nor is this the first occasion when he has failed to appear on an application which he has instituted.
5 On 10 September 2007, sitting in this court, I dealt with a similar application brought by Mr Keating. In reasons for decision which were
(Page 4)
- given that day and later published, and which are reported in Re The Governor of Western Australia; Ex Parte Keating [2007] WASC 228, I set out the history of the application before dismissing it. My reasons on that occasion set out the tragic history of illness, brain surgery and subsequent disability which were the consequences of Mr Keating's malignant cerebral tumours and the resulting surgical intervention in April 1976.
6 These reasons also set out how, since that surgery, and numerous subsequent medical investigations, Mr Keating has attempted to pursue litigation which, from any viewpoint, is doomed to failure, is quite misguided and can only merit the description of vexatious litigation as has been repeatedly declared in the past.
7 The present application does not raise any new material. It does not relate to any subsequent or different alleged cause of action. It refers to no new facts or circumstances which could possibly be considered as providing grounds which might lead to a re-examination of his claim.
8 What has happened, however, is that Mr Keating considers himself entitled to bring these applications before the Full Court. When advised by the listings coordinator that this is not the practice of the court, nor is there any such entitlement, Mr Keating nevertheless proceeds to have his application listed, despite his protests, before a single judge. When that occurs, he then fails to appear on the return date.
9 I am satisfied that Mr Keating is fully aware of this appointment listed before the court this afternoon. Not only because of the formal notifications which he has received from the court but because, at my direction my associate communicated with Mr Keating by telephone today to enquire whether he intended to be present this afternoon, and Mr Keating plainly indicated that he did not intend to be present.
10 Instead, Mr Keating has sent to the court a letter addressed to the presiding judge, dated 9 November 2007 which refers to the present application. The letter, which has been placed on the court file, refers to his dissatisfaction with the practice of the listings coordinator in declining to list this application or similar applications before the Full Court. It continues:
It is bad enough to be declared to be a vexatious litigant without having been given an opportunity of being heard on the hearing of the application of the Attorney-General, but it is infuriating that the Judicial Officers of
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- the Supreme Court refuse to comply with the Vexatious Proceedings Restriction Act 2002.
11 The letter then proceeds to demand that this present application be listed before the Full Court. I can only say that, with all respect to him, Mr Keating is quite mistaken in believing or expecting that he has a right to have these applications dealt with by the Full Court. The information which he has been given repeatedly by the listings coordinator is entirely true and correct. Applications of this kind under s 6(1)(a) of the Vexatious Proceedings Restriction Act can be made to a judge or to the court, and in these circumstances a single judge, whether sitting in open court or in chambers, constitutes the court. There is no right to be heard by the Full Court or the Court of Appeal.
12 If Mr Keating is dissatisfied with the order that I am about to make or with any of the other orders which have been made on similar applications in the past, he can apply for leave to appeal to the Court of Appeal. That is the avenue of approach to the Court of Appeal.
13 Nothing which I have just said is intended to encourage Mr Keating to follow that route or to induce any expectation as to the prospects of success were he to do so. Plainly, not being present, not offering any evidence in support of the application and not referring to any materials which are new or fresh - in the sense that they have come to light since the last similar application - means that any prospects of success on appeal would appear to be remote.
14 The difficulty as I see it is as follows. While Mr Keating continues to be classified as a vexatious litigant - a classification which these recent experiences can only vindicate - he is entitled to apply to the court from time to time under s 6(1)(a) of the Vexatious Proceedings Restriction Act for leave to institute proceedings. Any such application is heard, as I have indicated, by a judge sitting alone. Any attempt by him to institute proceedings without leave would result in the registry refusing to accept the applications. However, an application for leave to commence proceedings under s 6(1)(a) of the Act triggers an entitlement to be heard. This has now happened at least twice without Mr Keating turning up on the application and the time must be close when these applications themselves might be regarded as being an abuse of the court.
15 It is not open at present for this court to prevent Mr Keating from making an application under s 6(1)(a) because there always remains the possibility that there may be grounds shown for him to commence proceedings - perhaps not the kind of proceedings which he has attempted
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- to commence in the past but other forms of proceedings. He should, therefore, not be denied the opportunity to come before this court under s 6(1)(a) of the Vexatious Proceedings Restriction Act in a meritorious case. However, repeated applications of this kind are likely to result in the classification of them as being an abuse of the process of the court.
16 To guard against this in the future, if any such application is made by Mr Keating pursuant to s 6(1)(a) of the Vexatious Proceedings Restriction Act, I direct that, before it be listed, notification of it be given to a judge of the court - the judge likely to be listed to deal with the application - to consider whether or not the application should be regarded as being an abuse of the processes of the court. Repeated applications of the present kind, offering no new materials, are likely to be classified as being of that character. In such circumstances, it would seem to me that it would be neither necessary nor proper for the court to actually convene, as it has done again today, for no good purpose.
17 I order that the present application be dismissed. A copy of these reasons for decision shall be posted to Mr Keating and sent to the listings coordinator.
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