ROGERS
[2024] WASC 290
•16 AUGUST 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ROGERS [2024] WASC 290
CORAM: HOWARD J
HEARD: 12 AUGUST 2024
DELIVERED : 16 AUGUST 2024
PUBLISHED : 16 AUGUST 2024
FILE NO/S: CIV 1751 of 2024
MATTER: IN THE MATTER OF RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE ROGERS
EX PARTE
VANCE ROGERS
Plaintiff by Ex Parte
FILE NO/S: CIV 1638 of 2024
MATTER: IN THE MATTER OF RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE ROGERS
EX PARTE
VANCE ROGERS
Plaintiff by Ex Parte
Catchwords:
Practice and procedure - Unrepresented applicant - Applications for leave to file and issue writs of summons - Whether writs an abuse of process or frivolous or vexatious - Where defendants are not properly identified - Where affidavits do not depose to any matter and do not verify any facts.
Legislation:
Rules of the Supreme Court 1971 (WA)
Supreme Court (Fees) Regulations 2002 (WA)
Result:
Applications dismissed
Category: B
Representation:
CIV 1751 of 2024
Counsel:
| Plaintiff by Ex Parte | : | In Person |
Solicitors:
| Plaintiff by Ex Parte | : | In Person |
CIV 1638 of 2024
Counsel:
| Plaintiff by Ex Parte | : | In Person |
Solicitors:
| Plaintiff by Ex Parte | : | In Person |
Case(s) referred to in decision(s):
Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213
HOWARD J:
Mr Rogers, the applicant in both matters, acts for himself. It is clear that he has not had the benefit of any legal advice. As will become apparent, that has put him in a difficult position.
Background to the two applications
At the hearing on 12 August 2024, I asked Mr Rogers to explain the background to the two applications which he did from the Bar table.
The significance of that is that I have treated the following matters as background only and not as matters in evidence before the Court. To be clear, I have made no findings of fact for the purposes of these applications, or for any other purpose.
The two applications arise out of a dispute between Mr Rogers and Tony Mathew, from whom Mr Rogers took a lease over a property. Mr Rogers, to Mr Mathew's knowledge, was to use the property both to live in and to work from.
A short while after taking possession of the property, for the first time, Mr Rogers was given a copy of the lease by Mr Mathew. Mr Rogers did not agree to its terms and that led to Mr Mathew seeking possession of the property.
It appears that Mr Mathew made an application to the Magistrates Court at Fremantle for orders as to how Mr Rogers' property left at the leased property was to be dealt with. Orders were made by the Fremantle Magistrates Court on 8 June 2023.
Those orders, made on their face 'by consent', were:
1.The Applicant Lessor is to permit the Respondent Tenant to attend (with police escort) accompanied by removalists to remove any remaining goods owned by the Respondent Tenant at the subject property namely 31 Hybrid Court, TREEBY WA 6164 ("Property") between the hours of 9:00 am and 4:00 pm on Tuesday 13 June 2023 and Wednesday 14 June 2023.
2.As of 4:01 pm on Wednesday 14 June 2023 the Applicant Lessor has leave to sell or otherwise dispose of any remaining goods at the Property subject to the orders below.
3.The Applicant is empowered to sign transfer and registration documents to pass good title in the goods.
4.The sale proceeds are to be applied in the following sequence (subject to the terms of any security interest):
(a)firstly, to the Applicant to cover the Applicant Lessor's reasonable transport and sale expenses; and
(b)secondly, to the Respondent Tenant.
Mr Rogers told me that Order 1 is not as the Magistrate had made it and that it had been 're-written' to favour Mr Mathew.
Further, Mr Rogers told me that the transcript of the hearing before the Magistrate was not complete as it did not include an exchange between him and the Magistrate as to what would happen if Mr Mathew did not unlock the gate to allow Mr Rogers access.
Mr Rogers told me that he had tried to secure the police escort (I infer from the Cockburn Police Station) and had been unsuccessful in doing so.
From what Mr Rogers told me, I infer that he was not able to remove his remaining goods and that these were then subsequently sold or destroyed by Mr Mathew.
Out of those broadly stated matters, Mr Rogers is aggrieved and wishes to sue in this Court:
1.in respect of how the matter was dealt with in the Fremantle Magistrates Court; and
2.the police at Cockburn for not providing him with the police escort he regards as having been ordered by the Magistrate on 8 June 2023.
CIV 1638 of 2024
Mr Rogers attempted to file an Originating Motion under O 54 r 5 where he named the defendant as the 'Fremantle Magistrate Court & Administration' and sought compensation 'for the loss of business, work tools & personal items'. He stated the grounds of application as:
1.Conflicts of interest between court staff & a person appearing before the courts.
2.The misconduct carried out by the person which conflict of interest is associated with or due to their influence which benefited the person appearing before the court.
3.The attempt by court staff to cover up the whole scenario.
It appears that as a result of correspondence with the Court, Mr Rogers then attempted to file a writ in this Court and sought a fee reduction in respect of the writ.
On 5 February 2024, a Registrar of this Court wrote to Mr Rogers and stated:
The indorsement on the writ is not compliant with Order 6 rule 1 of the Rules of the Supreme Court 1971 (WA) (Rules) in that the nature of the claim made and the relief sought, is unclear. The identity of the defendant, or defendants, is also unclear.
I have reviewed the application and determined that it appears to be an abuse of process of the Court and a frivolous or vexatious proceeding. I have refused to accept the application for filing pursuant to the Rules Order 67 rule 5 …
Mr Rogers then filed, on 10 June 2024, an ex parte motion for leave to issue a writ.
The draft writ named the 'Fremantle Courthouse administrative & register' as defendant and endorsed that draft writ as follows:
The plaintiffs claims is for $3,700,000 as compensation for the premeditated misconduct that occurred in civil matters fre/Rstn/772/2022 & fre/Rstn/386/2023. Which is the result of a conflict of interest between the courts administration staff & a person appearing before the courts in matters mentioned above.
No one should be subjected to this form of misconduct that has occurred & not only has a person employed by the courts used there position to allow person gain for someone they are associated with, the rest of the courts administration staff have attempted to cover up the incident.
This misconduct has resulted in myself loosing my business & all equipment associated with it which has left myself with out any income & a very uncertain future but also all my personal items some of which money can not replace.
The misconduct ranges from but not exclusive too,
1.Documents being excepted & granted by Fremantle register prior to the court's offices officially being open & after the date of which documents lodged by myself where refused by Fremantle register on grounds of the matter had been moved to Perth.
2.The omit of wording from the court transcript, I distinctly asked the magistrate "what if he doesn't unlock the gate" The Magistrate insisted the gate would be unlocked. Mathews refused to unlock gate on dates ordered & myself asking the magistrate "what if he doesn't unlock the gate" is missing from the courts transcripts.
3.Orders made by the magistrate being Incorrectly written benefiting & resulting in personal gain for the person, the conflict of interest is associated with. Magistrate stated that anyone could enter on my behalf and only I needed a police escort but the orders written, say removalists can enter with a police escort.
4.Mathew repeatedly breached court orders with no repercussions. (I have not noted the errors in the original)
That motion was 'supported' by an affidavit of Mr Rogers made 17 May 2024 and filed 12 June 2024. The affidavit did not depose to any matter.
The affidavit moved from the introductory words of 'make oath and say as follows' straight to the jurat without any paragraphs between. There were documents attached which are not verified, including the draft Writ from which I quoted in paragraph [17] above.
The affidavit filed 12 June 2024 lists as the defendant: 'Fremantle Courthouse Administrative Staff'.
CIV 1751 of 2024
On 21 June 2024, a Registrar of this Court wrote to Mr Rogers and noted:
1.he had sought to commence proceedings by Notice of Originating Motion dated 12 June 2024; and
2.the named parties in the Motion were him as plaintiff and 'Cockburn Police' as defendant.
Further, Mr Rogers was informed that the Registrar had determined that the Motion appeared to be an abuse of process, or a frivolous or vexatious proceeding. The Motion had, therefore, been refused for filing under O 67 r 5.
On 21 June 2024, the applicant, Mr Rogers, filed an ex parte motion for leave to issue a writ.
On 26 June 2024, Mr Rogers filed an affidavit in 'support' of that motion. It attached some documents. The affidavit was in similar form to that filed in CIV 1638 of 2024 to which I have referred in paragraph [18] above. Mr Rogers did not depose to any matter.
Mr Rogers' affidavit named 'Cockburn Police' as the defendant.
One of the documents attached was a draft writ which named 'Cockburn police station' as the defendant and contained an Indorsement which stated:
Am suing cockburn police [sic] for $1,700,000 for there [sic] refusal to assist with a [sic] order from the courts which has resulted in the loss of both personal & business items.
Approach to the two applications
With respect, I have sought to approach Mr Rogers' two applications in the way that Vaughan J (as he then was) stated in Re Rules of the Supreme Court 1971 (WA); ex parte Gates [2018] WASC 213 [3]:
[The applicant] is a self-represented litigant with no legal training. Accordingly, it is necessary to approach the proposed writ with some flexibility to assess whether it discloses a viable cause of action which, with appropriate amendment, could be put into proper form. Care must also be taken to ensure that [the applicant's] rights are not obfuscated by [their] own advocacy. (citations omitted)
Further, Vaughan J stated:
19.The requirement for leave of a master or judge to file or issue a writ which appears to a registrar to be an abuse of process or a frivolous or vexatious proceeding reinforces the inherent power of the court to protect itself from unwarranted wastage of time and resources and to avoid the loss caused to those who have to face actions which lack any substance.
20.Order 67 r 5(1) does not state the criteria that is to be applied in determining whether to grant or refuse leave to file or issue a proposed writ. However, it is accepted that a judge or master should refuse leave to file or issue only if satisfied that the writ would be an abuse of process or a frivolous or vexatious proceeding. Moreover, the caution attendant upon the exercise of the power of summary dismissal elsewhere in the Rulesof the Supreme Courtapplies with no less force in the context of O 67 r 5.
21.Accordingly, the question for determination is whether [the applicant's] proposed writ would be an abuse of process or a frivolous or vexatious proceeding.
…
25.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.
26.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.
…
29.Proceedings will constitute an abuse of process if they are clearly doomed to fail or are plainly unsustainable.
30.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.
31.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.
…
33.A proceeding will also be vexatious if it is productive of serious and unjustified trouble and harassment.
(citations omitted)
Disposition of CIV 1638 of 2024
I have treated Mr Rogers' application in CIV 1638 of 2024 as an application made under O 67 r 5 and, if Mr Rogers were to be successful, then he ought be given leave to issue the draft writ rather than the earlier Motion.
The draft Writ and, for that matter, the affidavit filed 12 June 2024, does not name any defendant properly.
Further, taking the Indorsement from the draft writ it may be noted that what is alleged is 'premediated misconduct' which is a serious allegation against court officials. Further, the Indorsement goes on to assert, in effect, dishonesty as an unspecified person employed at the Court used their position to allow another to wrongly gain and then the balance of the Court's administrative staff are alleged to have covered up that misuse of position.
It may be immediately observed that Mr Rogers is unable to identify the person who had the alleged 'conflict of interest' within the Court. That, again by itself, clearly marks out the draft writ as being an abuse or vexatious.
Mr Rogers said at the hearing that he believed that a member of the Court's staff at the Fremantle Magistrates Court was the daughter of Mr Mathew; but he said that he did not know her name and had been unable to find out her name. I record this as the statement by Mr Rogers. I have no way of assessing its veracity. It was also, with respect to Mr Rogers not entirely clear to me at the hearing how he had formed this belief.
That such serious allegations were made against an unspecified person or persons would be enough, in my view, to render the draft writ unsustainable in the sense that Vaughan J described it in ex parte Gates.
Further, as noted, the affidavit filed 12 June 2024 is, effectively, blank. Plainly Mr Rogers has not sought to verify the matters contained in any of the documents attached to the affidavit, including (most pertinently) the draft writ.
The background which Mr Rogers gave me to the two applications which I summarised above is not, anywhere, deposed to by Mr Rogers in an affidavit.
In relation to the importance of an affidavit verifying the matters on which the applicant relies and which they wish to agitate if leave were granted, I note (again, with respect) the statements of Vaughan J in ex parte Gates where his Honour stated:
67.Finally, and in my view critically, the plaintiff has not adduced evidence in admissible form of any facts which might found a cause of action. I have already referred to the limited nature of Mr Gates' supporting affidavit. It amounts to no more than an asseveration that in 2001 Mr Gates was deliberately and maliciously damaged in Royal Perth Hospital. While the affidavit refers to the draft writ and the Letter of Demand it in no way verifies any of the factual contentions specified in those documents. It might be difficult for Mr Gates to do so to the extent that, as is apparent from the draft writ, Mr Gates makes assertions as what happened to him while passed out, subject to cardiac arrest or affected by medication.
68.The absence of appropriate supporting affidavit evidence is a material matter. Order 67 r 5(4) of the Rules of the Supreme Court requires that the application for leave to file and issue the draft writ be supported by affidavit. The intention is that litigants who present a writ for filing that appears to a registrar to be an abuse of the court's process, or a frivolous or vexatious proceeding, be required to depose to the factual contentions advanced in support of their claims - thereby being exposed to the usual sanctions if the contentions are knowingly or recklessly false. The sub-rule imposes a necessary safeguard not to be lightly overlooked in considering an application under either O 67 r 5(2) or O 67 r 5(3).
The absence of any evidence verifying Mr Rogers' claim in this respect is, in my view, also fatal to his application.
Disposition of CIV 1751 of 2024
Without repeating the detail of matters I identified in the above disposition of CIV 1638 of 2024, in my view, Mr Rogers' application in CIV 1751 of 2024 similarly cannot succeed as:
1.no defendant is properly identified; and
2.there has been no verification of any matter in the affidavit, including the documents, and most pertinently the draft writ.
Further matters
Having regard to the correspondence passing between the Court and Mr Rogers which is on the Court file, it appears that Mr Rogers was:
1.told that he needed to file affidavits supporting his motions for leave under O 65 r 5; and
2.was given some very high-level indication as to what needed to be included by way of documents in such an affidavit.
It was quite apparent to me at the hearing that Mr Rogers had understood that he only needed to file documents by his 'supporting' affidavit. And, in fairness to him, that is what he attempted to do.
It was quite apparent to me that Mr Rogers (understandably enough for an unrepresented litigant) did not understand that the Court in its correspondence with him was not limiting what should be included in an affidavit to documents by themselves.
Of course, the Court cannot give legal advice to an unrepresented litigant (or a represented one for that matter). Nonetheless, clearly Mr Rogers has not understood what needed to be included within a supporting affidavit. So, has made two ex parte applications which I consider could never have succeeded on the basis of obviously inadequate affidavits.
Without intending any criticism of the acceptance of the two ex parte applications with such manifestly deficient affidavits, a preferable course may have been for the ex parte applications not to be accepted and not put before a Judge until the applicant had made affidavits which deposed to something which might have given him some prospect of succeeding in the applications.
As I understand it, Mr Rogers paid filing fees for each of the two ex parte applications of $1,730 under item 1 of Schedule 1 of Supreme Court (Fees) Regulations 2002 (WA) (Regulations) as they were prior to 1 July 2024.
At an earlier point in time, the Regulations allowed the Court or a registrar ‘in a particular case for special reasons’ to direct that such a fee may be refunded.
The regulations do not now contain such a provision. That is, in my view, regrettable.
Rather, they allow for a person to be recognised – after making an application – as an ‘eligible individual’: reg 8(1)(a) if that person does not fall within one of the categories in reg 7(2)(a) – (e).
If such an application were made, it would seem to me to be in the ‘interests of justice’ (reg 8A(1)(b)) at the least, for Mr Rogers to be recognised as an ‘eligible individual’ under reg 7(2)(f).
Obviously, it is for Mr Rogers now to consider making such an application.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
16 AUGUST 2024
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