Shenton v Lester
[2015] WASC 466
•8 DECEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: SHENTON -v- LESTER [2015] WASC 466
CORAM: LE MIERE J
HEARD: 1 DECEMBER 2015
DELIVERED : 1 DECEMBER 2015
PUBLISHED : 8 DECEMBER 2015
FILE NO/S: CIV 2371 of 2015
BETWEEN: RICHARD LAWRENCE SHENTON
Applicant
AND
EVAN KIMBERLEY LESTER
Respondent
Catchwords:
Vexatious proceedings - Stay of proceedings - When a court may stay a proceeding for being vexations
Legislation:
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Applicant denied leave to apply for order under s 4(1) of the Vexatious Proceedings Restriction Act 2002 (WA)
Applicant's originating motion dismissed
Category: B
Representation:
Counsel:
Applicant: No appearance
Respondent: In person
Solicitors:
Applicant: No appearance
Respondent: In person
Case(s) referred to in judgment(s):
Granich Partners v Yap [2003] WASC 206
LE MIERE J: The applicant, Mr Shenton, applied for an order pursuant to Vexatious Proceedings Restriction Act 2002 (WA) (the Act) s 4(1) staying two proceedings instituted by the respondent, Mr Lester, in the Magistrates Court of Western Australia at Armadale. The first is a claim against Mr Shenton and Novello Mary Byrnes. The second is a claim against Holly May Taylor. Mr Shenton also seeks an order prohibiting Mr Lester from instituting further proceedings without the leave of the court or tribunal, as the case requires under s 6(1) of the Act. The applicant requires leave of the court pursuant to s 4(2) to make the application.
The Act
Section 4(1) of the Act provides that if a court is satisfied that a person has instituted or conducted vexatious proceedings or it is likely that the person will institute or conduct vexatious proceedings the court may stay any proceedings that have been instituted by that person and, or, prohibit that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under s 6(1).
The words 'institute proceedings', 'proceedings' and 'vexatious proceedings' are defined in s 3 of the Act. 'Proceedings' are widely defined and include proceedings in the Magistrates Court. 'Vexatious proceedings' are proceedings which are either an abuse of the process of a court or tribunal, instituted to harass or annoy or cause delay, instituted or pursued without reasonable ground or conducted in a manner so as to harass or annoy, cause delay or detriment or achieve any wrongful purpose. Proceedings instituted or pursued without reasonable ground may be vexatious regardless of the subjective intention, motive or state of mind of the litigant.
Leave to apply for an order staying or prohibiting proceedings
Section 4(2) of the Act provides that a person against whom another has instituted or conducted vexatious proceedings may apply, with the leave of the court, for an order under s 4(1). The requirement for leave and when it should be granted was considered by E M Heenan J in Granich Partners v Yap [2003] WASC 206 where his Honour said:
The requirement for leave to be obtained by a private applicant, who can be presumed to be acting in the protection of his or her own interests, is clearly to allow the court to ensure that such applications are not used as instruments of oppression or as tactical exercises between adversaries. The court will only consider the exercise of this jurisdiction if it is satisfied that there are substantial grounds for doing so and there is sufficient reason to embark on an enquiry over whether or not the procedures and opportunities of litigation are being abused, or misused, in such a way that an intolerable burden is placed upon the time, resources and procedures of the court. This is an area where relief should be given not merely because another private litigant is being inconvenienced or harassed but also because important public resources of time and attention of the court are being, or may be, diverted by inappropriate claims, to the disadvantage not only of the court but to other litigants whose causes may be delayed by the time needed to deal with vexatious proceedings.
It is this public character of the mischief and prejudice which can be caused by vexatious proceedings which is the reason why the Attorney General, and the Registrars of the Courts may initiate an application for relief and why, in the past, only the Attorney General could do so. …
Accordingly, an application by a private litigant, under the Vexatious Proceedings Restriction Act (2002) s 4(2)(c), presents the court with features which differ from those on an application by the Attorney General or by a Principal Registrar, both of whom will be presumed to be acting with a view to the advancement of the public interest. …
… Nevertheless, the need for leave to be granted to a private applicant will be satisfied if it is shown that the applicant is seeking the statutory relief primarily for the alleviation of an unjustifiable or exceptional burden which the litigation brought or pursued by the respondent has caused and not just as an additional means of preventing that applicant from having to answer before the courts at the suit of a person seeking to obtain relief at law from some real or imagined wrong, even if it should turn out that the claimant's case will probably fail. In other words, this is not a remedy intended or available to achieve a stay or to prevent the institution of the ordinary run of litigation rather, it is an extreme remedy reserved for instances where quite hopeless claims are brought, or persisted with, to a degree which causes substantial disruption for the target of the claims and for the administration of justice [31] - [34].
History of this application
Mr Shenton commenced this proceeding by a notice of originating motion filed on 31 August 2015. The application was supported by affidavits sworn by Mr Shenton, Ms Byrnes and Ms Taylor on 31 August 2015. The originating motion came before the court on 23 September 2015. I ordered that the application for leave under s 4(2)(c) of the Act be heard at the same time as the application for orders under s 4(1) of the Act. I ordered that the applicant file and serve any further affidavits on or before 29 September 2015, the respondent file and serve any affidavits in opposition on or before 13 October 2015 and the applicant file and serve any affidavits in response on or before 20 October 2015. I ordered that the applicant's application for leave under s 4(2)(c) of the Act and for orders under s 4(1) of the Act be set down for hearing at a special appointment for two days commencing on 29 October 2015.
On 7 October 2015, without leave, Mr Shenton filed an amended notice of originating motion which purported to add Ms Byrnes and Ms Taylor as a second and third applicant. The amended notice of originating motion stated that it was amended pursuant to the order made by me on 23 September 2015. I made no such order.
Mr Shenton did not file any further affidavits before 29 September 2015. Mr Lester filed three affidavits, each sworn by him, on 13 October 2015. Between 23 October and 27 October Mr Shenton filed further affidavits sworn by himself, Ms Byrnes and Ms Taylor on 22 October, 21 October and 21 October respectively. Mr Shenton filed those affidavits outside of the time that the order made on 23 September 2015 permitted him to do so, and therefore filed the affidavits without leave and without authority to do so.
Mr Shenton's application came on for hearing on 29 October. I ordered that the amended notice of originating motion filed by Mr Lester on 7 October 2015 without leave be struck out. Mr Lester applied for an adjournment on the ground of late service of the second affidavits sworn by each of Mr Shenton, Ms Byrnes and Ms Taylor. I granted the adjournment and ordered that the application be listed for hearing at a special appointment for two hours commencing on 1 December at 10.30 am. As a result of Mr Shenton filing the affidavits out of time, the application was adjourned and the two days set aside for the hearing of the matter were lost.
On 1 December 2015 Mr Lester attended at 10.30 am. Mr Shenton had not attended by 11.00 am and had not informed the court that he was unable to, or intending not to, attend the hearing. I had formed the opinion, on the basis of the affidavit material filed by the applicant and the respondent, that I should refuse leave to Mr Shenton to apply for an order under s 4(1) of the Act. I determined that no further inconvenience should be caused to the respondent and no further court resources should be wasted by further adjourning the application. I ordered that Mr Shenton should be refused leave to apply for an order under s 4(1) of the Act and Mr Shenton's originating motion should be dismissed. I determined that leave should be refused for the following reasons.
Mr Lester's claim against Mr Shenton and Ms Byrnes
On 17 August 2015 Mr Lester commenced a claim against Mr Shenton and Ms Byrnes in the Magistrates Court at Armadale: Case No. Minor 1345/15. Mr Lester's claim is as follows:
Money owing for cutting and baling hay and associated costs as per invoice/letter of demand number 12 dated 21/2/2015.
The affidavits filed disclose the following. Mr Lester's claim arises out of an agreement made in October 2014 that Mr Lester would cut hay on a property or properties occupied by Mr Shenton and Ms Byrnes and split 50/50 with Mr Shenton the hay bales so produced. Mr Lester says that the agreement was made between himself and Mr Shenton and Ms Byrnes. Mr Shenton and Ms Byrnes say the agreement was only with Mr Shenton. Mr Lester and Mr Shenton make conflicting claims about the terms of the agreement, what happened after the agreement was made, performance of the agreement and breach of the agreement.
Mr Lester has sworn an affidavit in which he puts forward his claim. I am not satisfied that he instituted the proceeding, or has conducted it in a manner, to harass or annoy, cause delay or detriment or achieve any other wrongful purpose.
Mr Shenton and Ms Byrnes claim that the action has been instituted or pursued without reasonable ground, is hopeless and is bound to fail and is an abuse of process. The merits of Mr Lester's claim depend upon findings of fact. It is entirely inappropriate that this court should enter into an enquiry as to the facts and hence the rights and wrongs of the Magistrates Court proceeding.
Mr Lester's claim against Ms Taylor
On 14 August 2015 Mr Lester commenced a proceeding in the Magistrates Court at Armadale against Ms Taylor: Case No 1336/2015. Mr Lester's claim is as follows:
Owing for outstanding horse agistment as per invoice 07 dated 5/8/2015.
The affidavits filed disclosed the following. Mr Lester's claim arises out of an agreement between himself and Ms Taylor about breeding her mare to his stallion to produce a horse known as Diabolo. Mr Lester and Ms Taylor have given conflicting accounts of the terms of the agreement and make allegations and counter allegations of breaches of the agreement and failure to perform. Ms Taylor claims that Mr Lester deceived her in that his stallion was not registered. Mr Lester denies that he deceived Ms Taylor.
Mr Lester swore an affidavit in which he puts forward his claim. I am not satisfied that he instituted the proceeding, or has conducted it in a manner, to harass or annoy, cause delay or detriment or achieve any other wrongful purpose.
Ms Taylor and Mr Shenton claim that the proceeding has been instituted or pursued without reasonable ground, is hopeless and bound to fail and is an abuse of process. Like Mr Lester's claim against Mr Shenton and Ms Byrnes, this claim depends upon findings of fact and it is entirely inappropriate that this court should enter into an enquiry as to those facts.
Leave is refused
Leave will be granted to a private applicant where it is shown that the applicant is seeking an order under s 4(1) of the Act primarily for the alleviation of an unjustifiable or exceptional burden which the litigation brought or pursued by the respondent has caused. An application for orders under the Act is not to be used as a procedural weapon to prevent the applicant from having to answer before the courts at the suit of a person seeking to obtain relief at law for some claimed wrong, even if it should turn out that the claimant's case will probably fail. This is not a remedy intended or available to achieve a stay of proceedings or to prevent the institution of the ordinary run of litigation. It is an extreme remedy reserved for instances where quite hopeless claims are brought, or persisted with, to a degree which causes substantial disruption for the person against whom the claims are brought and for the administration of justice.
This is not an appropriate case for granting leave. The application should not have been brought. If, as Mr Shenton claims, Mr Lester's claim against him in the Magistrates Court has no reasonable prospect of succeeding then he should apply to that court to give judgment in his favour or answer the claim against him at trial. Applications under the Act are not to be used as a means of circumventing the processes and procedures of the Magistrates Court.
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