Registrar, Supreme Court of Norfolk Island v Walsh
[2016] NFSC 1
•29 July 2016
SUPREME COURT OF NORFOLK ISLAND
Registrar, Supreme Court of Norfolk Island v Walsh [2016] NFSC 1
File number(s): SC 2 of 2016 Judge(s): GILMOUR J Date of judgment: 29 July 2016 Catchwords: PRACTICE AND PROCEDURE – interlocutory application as to strike out originating process as an abuse of process pursuant to s 425(1) of the Court Procedure Rules 2006 (ACT) made applicable by s 19(4) of the Supreme Court Act 1960 (NI) – application dismissed Legislation: Court Procedures Rules 2006 (ACT) r 425(1)
Legal Profession Act 1993 (NI) s 21
Supreme Court Act 1960 (NI) ss 12, 19(4)
Vexatious Proceedings Act 2008 (NSW) s 8
Cases cited: Walton v Gardiner (1993) 177 CLR 378 Date of hearing: 29 July 2016 Registry: Norfolk Island Number of paragraphs: 20 Counsel for the Applicant: Applicant appeared in person Counsel for the Respondent: Mr K Eskerie of Sparke Helmore ORDERS
SC 2 of 2016 BETWEEN: REGISTRAR OF THE SUPREME COURT OF NORFOLK ISLAND
Applicant
AND: JOHN WALSH OF BRANNAGH
Respondent
JUDGE:
GILMOUR J
DATE OF ORDER:
29 JULY 2016
THE COURT ORDERS THAT:
1.The application be dismissed.
2.Dr Walsh pay the costs of the Registrar to be taxed if not agreed.
3.The matter be listed for further directions before Besanko CJ on a date to be fixed.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
GILMOUR J:
The applicant in the originating application is the Registrar of the Supreme Court of Norfolk Island, appointed under section 12 of the Supreme Court Act 1960 (NI).He claims relief pursuant to the Court’s inherent jurisdiction to supervise legal practitioners under section 21 of the Legal Profession Act 1993 (NI) and section 5 of the Supreme Court Act 1960 (NI). The respondent, Dr John Walsh, by interlocutory application dated 6 June 2016, seeks orders that the originating application be struck out. It is this interlocutory application which is now before the Court.
The principle proceeding concerns the professional conduct of Dr Walsh. The allegations against him are set out in the originating application.
The originating application was brought in this Court because, at the time it was filed and to date, no professional conduct arrangement exists with the Law Society of the Australian Capital Territory, as is contemplated by section 16 of the Legal Profession Act 1993 (NI).
The allegations, broadly and centrally, are that in 2007 Dr Walsh obtained the sum of $200 from the complainant, a Hong Kong legal practitioner, allegedly in consideration of a membership of the Norfolk Island Bar Association. The practitioner asserts that he was told by Dr Walsh that it was a requirement that he pay this money to join the Bar Association in order to obtain registration as a legal practitioner in Norfolk Island.
There are additional allegations made in the originating application but, in the course of his oral submissions, Dr Walsh focussed, understandably enough, upon these most serious allegations, which I have just described.
The complaint, as to this matter, by the Hong Kong practitioner was not brought to the notice of the Registrar until March 2015, although the events in question go back to 2007. Having been notified of the complaint, the Registrar moved quickly to institute the present proceedings.
Dr Walsh’s interlocutory application seeks orders pursuant to section 8 of the Vexatious Proceedings Act 2008 (NSW).
However, Dr Walsh in his supporting affidavit sworn 6 June 2016, quite correctly accepted that the New South Wales legislation has no application for present purposes. It was, Dr Walsh said, in effect, an attempt to employ a legislative analogue to the circumstances of this case.
The Registrar objected to a number of paragraphs in Dr Walsh’s affidavit, or at least parts of them, as being either irrelevant or scandalous as to their content. I will deal with these in turn.
In paragraph 20, in the first four lines, there are allegations that the Registrar has acted unconscionably, has provided information to Dr Walsh late or much too late and that he was, at all times, uncompromising and accommodating and otherwise, but for that, the matter would have progressed much more smoothly and efficiently.
I will strike out those four lines as being irrelevant, as well as, on their face, scandalous and unsupported, at least in their conclusions.
As to paragraph 21, I will strike out the first sentence concerning the allegation that the Registrar’s conduct is wholly in breach of the model litigant rules. This is a baseless allegation. Likewise, I strike out as scandalous the allegation in the third sentence that the Registrar has not acted honestly or fairly or in the public interest, according to the law.
In paragraph 22 there is an objection to the passage:
I ascertained that the applicant had, knowing I was off Norfolk Island, obtained a default judgment in the sum of $300 against Pauline Butler and a default judgment against me in the sum of $300.
I will strike this passage out as containing an implicit scandalous and baseless assertion against the Registrar of improper conduct. It is also irrelevant.
I propose to treat the application before me as an application under the Rules of the Supreme Court of the Australian Capital Territory. This in accordance with s 19(4) of the Supreme Court Act 1960 (CI), which prescribes the Court Procedure Rules 2006 (ACT) as the applicable legislation. Under rule 425(1) of those rules the Court may, at any stage of the proceeding, order that a pleading or part of a pleading be struck out if the pleading is, relevantly, an abuse of the process of the Court. There are other bases upon which an application to strike out might be made but the thrust of the present interlocutory application is that the proceedings are an abuse of the process of the Court.
An order striking out a proceeding as an abuse of process of the Court is a power which the courts recognise ought to be exercised sparingly. Indeed, in Walton v Gardiner (1993) 177 CLR 378 at pp 392 - 393 the High Court characterised as an abuse a proceeding which could clearly be seen to be foredoomed to fail. This is not a universal description of the bases for striking out a proceeding upon the abuse ground but it seems to me the characteristic which has been relied upon by Dr Walsh.
I say that because he attempted on several occasions to give oral evidence principally to deny these serious allegations. I did not permit him to do so for self-evident reasons. Nonetheless, it is apparent from his defence to these proceedings and his attempts to give that evidence that he very much puts in issue the serious allegations made against him.
The Registrar relies upon his affidavit sworn 6 October 2015. This is a very fulsome affidavit and contains documents going to the allegations made against Dr Walsh, including documents authored by the complainant, detailing the relevant allegations to which I have referred. Whilst Dr Walsh denies the serious allegations that is not enough to characterise the proceedings as an abuse of process.
Dr Walsh attempted to demonstrate to the Court that there were inherent contradictions in the letter of complaint from the Hong Kong practitioner to the Registrar by reference to logic, where Dr Walsh maintained that the allegations could not be true because the relevant legislation governing practitioners on Norfolk Island did not come into existence until 2008 whereas the allegations made by the complainant concern alleged events in 2007. This attempt at logic fails. It was, of course, open to Dr Walsh to have said anything to the Hong Kong complainant in 2007 as to what was or was not the position concerning the requirements to practice law in Norfolk Island. The factual question is one for trial. The fact as to when the relevant legislation came into effect will no doubt form part of the evidence.
I am, for all these reasons, of the opinion that Dr Walsh has fallen well short of establishing any abuse of process in relation to these proceeding which are by no means foredoomed to fail. The application will be dismissed with costs.
I certify that the preceding twenty (20) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour. Associate:
Dated: 29 July 2016
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