Shaw v Jim McGinty in his capacity as Attorney General

[2006] WASCA 231 (S)

SHAW -v- JIM McGINTY in his capacity as ATTORNEY GENERAL & ANOR [2006] WASCA 231 (S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASCA 231 (S)
Court:	THE COURT OF APPEAL (WA)
Case No:	CACV:83/2005	Heard:	6 APRIL 2006
Coram:	STEYTLER P WHEELER JA BUSS JA	Delivered:	6/11/06
Supplementary Delivered:	23/11/06
No of pages:	5	Judgment Part:	1 of 1
Result:	Appellant to pay respondents' costs
Category:	B
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Parties:	BRIAN WILLIAM SHAW JIM McGINTY in his capacity as ATTORNEY GENERAL DAMIAN BUGG in his capacity as COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Catchwords:	Turns on own facts
Legislation:	Nil
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : SHAW -v- JIM McGINTY in his capacity as ATTORNEY GENERAL & ANOR [2006] WASCA 231 (S) CORAM : STEYTLER P

WHEELER JA
BUSS JA

HEARD : 6 APRIL 2006 DELIVERED : 6 NOVEMBER 2006 SUPPLEMENTARY
DECISION : 23 NOVEMBER 2006 FILE NO/S : CACV 83 of 2005 BETWEEN : BRIAN WILLIAM SHAW

Appellant

AND

JIM McGINTY in his capacity as ATTORNEY GENERAL
First Respondent

DAMIAN BUGG in his capacity as COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Second Respondent

(Page 2)

ON APPEAL FROM:

Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Coram : MCKECHNIE J

Citation : SHAW -v- ATTORNEY GENERAL FOR THE STATE OF WESTERN AUSTRALIA & ANOR [2005] WASC 149

File No : CIV 1128 of 2005

Catchwords:

Turns on own facts

Legislation:

Nil

Result:

Appellant to pay respondents' costs

Category: B

Representation:

Counsel:

Appellant : In person
First Respondent : Mr R M Mitchell
Second Respondent : Mr D W L Renton

Solicitors:

Appellant : In person
First Respondent : State Solicitor
Second Respondent : Commonwealth Director of Public Prosecutions

(Page 3)

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

Nil

Case(s) also cited:

Nil

(Page 4)

1 STEYTLER P: I agree with Wheeler JA.

2 WHEELER JA: At the delivery of judgment in this matter, the first respondent applied for an order that the appellant pay the first respondent's costs of his application to be taxed.

3 The appellant was given leave to file written submissions within seven days if he wished to oppose that application. By letter dated the following day, the second respondent advised the Court that he too sought an order that the appellant pay the second respondent's costs of the application to be taxed, and foreshadowed making oral application to that effect if necessary when the matter was next re-listed. He also wrote a letter to that effect to the appellant, who then filed, within time, submissions addressing both the first and second respondents' application for costs.

4 The appellant puts forward three reasons why he should not be required to pay the costs of either respondent. Taking them in the order in which they appear in his submissions, they are as follows.

5 It appears from pars 38 to 40 inclusive of the submissions that the appellant takes the view that his application is public interest litigation, raising matters of constitutional significance. He therefore submits that costs should not be awarded in such a case. That is simply not correct. The application was one made to further the private interest of the appellant as a litigant, in the sense that it was directed to the removal of a fetter imposed upon him personally. To the extent that the order pursuant to the Vexatious Proceedings Restriction Act 2002 (WA) restricted the appellant from bringing proceedings, that was not a matter of public interest or of constitutional significance, since the proceedings which he seeks to bring are largely unintelligible and vexatious and are, to the extent that they are intelligible, entirely wrong in law.

6 The appellant suggests in par 44 of his submissions, as I understand it, that no order for costs should be made as the application arose out of a criminal or quasi criminal matter. That is not so. No facts have been identified by the appellant either in his application, or in the proceedings before Commissioner Braddock from which he sought to appeal, or in any of the underlying proceedings which prompted the applications to Commissioner Braddock, which give rise to any plausible suggestion that any criminal offence has been committed by any person.

(Page 5)

7 Finally, par 87 of the appellant's submissions suggests that it is not open to the Court to make costs orders against the appellant, since "the writers of the Judgment are primary offenders to Treason". No fact is identified which could logically give rise to any such suggestion, and no intelligible submission is made directed to that proposition. It must therefore be disregarded.

8 The orders will therefore be that the appellant pay the first and second respondents' costs of the application to be taxed.

9 BUSS JA: I agree with Wheeler JA.