Southern View Pty Ltd v Fraser
[1999] WASC 142
SOUTHERN VIEW PTY LTD -v- FRASER & ANOR [1999] WASC 142
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [1999] WASC 142 | |
| Case No: | CIV:1727/1999 | 23 JULY 1999 | |
| Coram: | McKECHNIE J | 23/07/99 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Part of pleadings struck out | ||
| PDF Version |
| Parties: | SOUTHERN VIEW PTY LTD LINDA LOUISE FRASER REGISTRAR OF TITLES |
Catchwords: | Pleadings Application to strike out pleadings Inherent jurisdiction of the Court Pleadings following terms of earlier order Pleadings embarrassing |
Legislation: | Rules of the Supreme Court (1971) WA O 20 r 19 |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
LINDA LOUISE FRASER
First Defendant
REGISTRAR OF TITLES
Second Defendant
Catchwords:
Pleadings - Application to strike out pleadings - Inherent jurisdiction of the Court - Pleadings following terms of earlier order - Pleadings embarrassing
Legislation:
Rules of the Supreme Court(1971) WA O 20 r 19
Result:
Part of pleadings struck out
(Page 2)
Representation:
Counsel:
Plaintiff : Mr K C Staffa
First Defendant : Mr P Mendelow
Second Defendant : No appearance
Solicitors:
Plaintiff : Preuss Feinauer & Associates
First Defendant : KPMG Legal
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 McKECHNIE J : On 21 June 1999 Parker J made orders extending the operation of caveat G652154 and other consequential programming orders. This was an application made in respect of a caveat which was lodged as to a dispute between the plaintiff and the first defendant over the sale of a certain parcel of land. For whatever reason, the order was not properly complied with because it was not served upon the Registrar of Titles.
2 As a result the plaintiff in those proceedings, CIV 1699 of 1999, made application by way of chamber summons to extend the operation of the order. That order came on for hearing before Miller J on 1 July 1999 and sought substantive orders that the plaintiff have leave to register a caveat to replace caveat G652154 and the operation of the said caveat continue until further order of the Court.
3 It also sought injunctive relief against the first defendant from either making an application under the Transfer of Land Act1893(WA) or applying for removal of the caveat and from disposing of any interest in the subject land and consequential injunctive relief against the Registrar of Tiles.
4 That matter was fully argued before Miller J, who made orders for directions dated 1 July 1999. Those orders are substantively:
"(2) The plaintiff be at liberty to file an Originating Summons in terms of the Summons dated 30 June 99 as a fresh proceeding."
- There was a further relevant order, namely what became (7):
"The First Defendant be at liberty to make application to set aside the caveat, and be taken to have so applied."
6 By chamber summons which has been brought on before me today, the first defendant seeks that par 4 to 7 inclusive of the originating summons be struck out pursuant to the inherent jurisdiction of the Court and/or pursuant to O 20 r 19 of the Supreme Court Rules on various bases namely that they:
(Page 4)
- "(a) disclose no reasonable cause of action; alternatively
(b) are scandalous, frivolous or vexatious; alternatively
(c) may prejudice, embarrass or delay the fair trial of the action; alternatively
(d) are otherwise an abuse of the process of the Court."
7 The action is said to be brought, as an alternative, either in the inherent jurisdiction or pursuant to O 20 r 19. Dealing with this matter on a fairly urgent and extempore basis, all I would say is that I am at present unpersuaded that the originating summons is a pleading within the meaning of O 20 r 19. I propose to deal with the action on the basis that the Court has inherent power generally to control its own processes and that those powers are not closed.
8 The first defendant's argument, in summary, really is that from an examination of the transcript of the hearing before Miller J on 1 July 1999 it becomes clear that he had refused the injunction and therefore an action pleading the injunctive relief is an abuse of process of the Court.
9 It is always difficult to discern from transcript what was the true intention of a Judge. Powerful reasons would have to be advanced before a Judge, in interpreting an order, would go behind the face of the order.
10 I illustrate that by reference to two passages in the transcript. I refer first to p 16. Counsel for the first defendant said: "So insofar as this application is an application for an injunction, the plaintiff is unsuccessful." The Judge responded: "That is my view" and then went on to refer to a case. Then there was debate about that, following which his Honour said: "… I'm of the view that it would be inappropriate to order any injunctive relief."
11 Counsel for the plaintiff then asked that he be heard on the point, and said "… but I am not happy that you dismiss the application for the injunction because if you do that, that would make that issue res judicata." The judge said: "No. I'm simply saying at this stage I don't think it's necessary to listen to argument on it. I don't have to rule on it. There's no need to argue it because these orders will overcome the problem."
12 Clearly the orders that his Honour made had the intention of putting the plaintiff back in the position that it would have been in had it complied fully with the order of Parker J. His Honour said that was his
(Page 5)
- intention and clearly that was the intention of the orders. It was a pragmatic way to overcome a problem to do justice to the parties until the argument on the caveat could be properly maintained and determined.
13 The power of the Court to control the inherent processes of the Court should be exercised sparingly, particularly where exercising it might shut a party out from raising and having determined an issue properly to be determined. In this case no question arises as to my overruling the decision of Miller J, which would not be within my power in any event. The first defendant's application is to strike out various parts of the originating summons. However, that necessarily involves the interpretation of the order made by Miller J.
14 The plaintiff's argument is that it cannot be said to be an abuse of process to simply follow precisely the order of the Miller J of 1 July 1999 in CIV 1669 of 1999 where he said: "The plaintiff be at liberty to file an originating Summons in terms of the Summons dated 30 June 1999 as a fresh proceeding." In my view, that argument has to be accepted. The transcript does not make so clear as to be beyond real argument that the intention of his Honour was to dismiss the injunction. Rather, as I read it, his Honour was really seeking to put the plaintiff back into the position in which it had been and simply did not dispose of the injunction one way or the other. To that extent I would not accede to the first defendant's chamber summons.
15 There is however, one matter. The order for directions made by Miller J is to a degree irreconcilable with the originating summons in the present action filed pursuant to par 2 of his order in the sense that par 4 and par 6 of the originating summons claim an injunction restraining the first defendant from making application for removal of the caveat and the second defendant from dealing with that application, whereas par 7 of the orders of Miller J says: "That the First Defendant be at liberty to make application to set aside the caveat, and be taken to have so applied".
16 It seems to me that the effect of Miller J's order was consistent with his stated intention to deal with the matter so as to put the plaintiff back where the plaintiff was also to deal with the matter so as not to deprive the defendant of any rights that the defendant may lawfully have. In other words, he did not want to put the defendant in any worse position as a result of the order that was being made.
(Page 6)
17 In my view (having regard to the order of Miller J), a continuation of par 4 and par 6 in the claim would make the pursuance of the originating summons embarrassing.
18 Continuation would have the effect that a Judge may be called upon to make an order in those terms, which to my mind would be contrary to the order made by Miller J in par 7.
19 In the inherent jurisdiction of the Court, on the basis that the claiming of par 4 and par 6 of the originating summons may prejudice, embarrass or delay the fair trial of the action, I am prepared to strike those two paragraphs out. I am not prepared to make an order in relation to 5 and 7 because, I consider that they are not a clear case of abuse of process.
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