Telefind Pty Ltd v Dallwitz Trusts Pty Ltd - [2012] SASC 64

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules)
TELEFIND PTY LTD v DALLWITZ TRUSTS PTY LTD & ORS
[2012] SASC 64
Reasons for Decision of The Honourable Justice Gray
20 April 2012
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - OTHER MATTERS ARISING BEFORE TRIAL
Referral from Registrar pursuant to Rule 53 of Supreme Court Civil Rules 2006 (SA) that he reject the proposed notice of appeal attempted to be filed by the proposed appellant - whether the document is on its face an abuse of process.
Held: Direction made that Registrar reject the document for filing - document an abuse of process.
Supreme Court Civil Rules 2006 (SA) r 53, referred to.
Staats v United States of America (1992) 66 ALJR 793; Re Davison (1997) 147 ALR 259; Manolakis v District Registrar (SA) (2008) 170 FCR 426; Kowalski v Davison [2006] SASC 123; Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89; Eastman v Higgins (2007) 210 FLR 464; Westwill Pty Ltd v Heath (1989) 52 SASR 461, considered.

TELEFIND PTY LTD v DALLWITZ TRUSTS PTY LTD & ORS
[2012] SASC 64
Civil
GRAY J:

William Paul Jones has attempted to file a notice of appeal in the Registry of the Supreme Court. This is a referral from the Registrar of the Supreme Court, pursuant to Rule 53 of the Supreme Court Civil Rules 2006 (SA). The Registrar has sought a direction that he reject the proposed notice of appeal. I have decided to so direct and these are my reasons for that decision.
The Registrar has formed the opinion that the document is an abuse of the processes of the Court, and accordingly has referred the matter to me for consideration in accordance with the terms of Rule 53, which provides for power to reject documents submitted for filing. The Rule relevantly provides:
(1)A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.
(2)If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
(3)If the Judge or Master so directs, the Registrar will reject the document.
(4)If it appears to the Court that a document that is an abuse of the process of the Court has been filed in the Court, the Court may direct that it be struck from the file.
I recently considered the purpose and operation of Rule 53 in my decision in Westwill Pty Ltd v Byrt & Ors.[1] It is convenient to repeat part of that discussion.
[1] Westwill Pty Ltd v Byrt & Ors [2010] SASC 99.
The purpose of Rule 53 is to ensure that the resources of the court are not exhausted by pointless and misconceived litigation and that in the interests of justice, defendants are not put to expense and stress in such cases.[2] The Rule has been held to apply to documents that are incoherent such that parties could not know the case being made against them.[3] Under a Federal Court Rule in comparable terms, the actual rejection of the document by the Registrar is not subject to judicial review.[4] The direction made under Rule 53(4), is an administrative act not subject to appeal.[5]
[2]    Staats v United States of America (1992) 66 ALJR 793.
[3]    Re Davison (1997) 147 ALR 259.
[4]    Manolakis v District Registrar (SA) (2008) 170 FCR 426.
[5]    Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89, [32]-[33].
Rule 53(1) as extracted, provides that a document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious. It is apparent from the terms of Rule 53 that the Rule does not operate to limit what may amount to an abuse of the process of the Court. The terms “scandalous, frivolous or vexatious” in this context should be given a wide meaning. It is to be observed that Masters of this Court will generally direct the Registrar to reject a document where pleadings do not disclose an intelligible cause of action, or no intelligible grounds for appeal. Such documents fall within the wide meaning referred to above.
If the Registrar forms the opinion that the document is an abuse of process of the Court, the Registrar must refer the matter to a Judge or Master. The formation of this state of mind is an essential pre-condition to the referral. When this state of mind is reached, the Registrar must refer the matter for consideration. The general practice in this Court is that the referral under Rule 53(2) is to a Master. The present referral is before me, as the notice of appeal purports to appeal to the Full Court.
In Eastman v Higgins,[6] Lander J considered the correct approach to be taken by the Judge or Master in respect of a Rule not materially different from Rule 53. In that case, Lander J observed that the question raised in the Rule itself must be addressed, that is: does the document appear, on its face, to be an abuse of the process of the Court?
[6] Eastman v Higgins (2007) 210 FLR 464.
The proposed appellant in this matter is a company – Telefind Pty Ltd. The author and filer of the purported notice of appeal is Mr Jones, who has purported to file the notice on behalf of the appellant. Mr Jones, both personally and through his interests, has a long history of dealings with the courts in this State. It is not necessary to repeat the lengthy factual history of those dealings, save to say that the many actions, appeals and applications involving Mr Jones have as their common origin an action in the Supreme Court in the 1980s concerning a dispute over a contract for the purchase of land. That dispute was the subject of the judgment of Duggan J in Westwill Pty Ltd v Heath[7] in 1989, and was decided adverse to Mr Jones.
[7] Westwill Pty Ltd v Heath (1989) 52 SASR 461.
In the most recent decision of this Court concerning Mr Jones, I ordered that he, without the leave of the Court, was restrained from making any further application or taking any steps (including filing or issuing any new proceedings in this Court) in or out of or concerning any matters involving or relating to or touching upon or otherwise relating to the decision of Duggan J in Westwill Pty Ltd v Heath.[8] Mr Jones was further restrained regarding any matters involving or relating to the complaints contained within the proposed notice of appeal dated 9 June 2010 – the initiating process which inevitably led to the orders I made.
[8] Westwill Pty Ltd v Heath (1989) 52 SASR 461.
The proposed appellant, Telefind Pty Ltd, was some time ago involved in litigation with the proposed respondent, Dallwitz Trusts Pty Ltd. That action settled at trial. The settlement order made by Judge Burley, referred to by Mr Jones as the “compromise”, was dated 11 March 1997. It is against this order that Mr Jones now attempts to appeal to this Court.
The Registrar formed the view that the proposed notice of appeal may not be covered by the terms of my restraining order, and accordingly has considered the document in light of Rule 53. The Registrar has formed the view that the proposed notice of appeal is an abuse of the processes of the Court.
I too have been unable to satisfy myself to an appropriate standard that my restraining order applies to the within proposed notice of appeal. Accordingly, I propose to consider the matter in accordance with Rule 53.
The proposed notice is not in a form that complies with the Rules of Court. As Mr Jones is not a legal practitioner, he has no demonstrated authority to act on behalf of the proposed appellant. The proposed notice does not set out grounds of appeal. It is argumentative and difficult to follow. The language is provocative and rambling. Furthermore, some of the allegations may properly be characterised as scandalous, and are not supported by any cogent material – in particular Judges of the District Court are accused of contempt.
In addition, Mr Jones applies for an extension of time to lodge the notice of appeal. It is difficult, if not impossible, to envisage any circumstances that would cure the gross delay between the decision the subject of the appeal, 11 March 1997, to the attempted filing of the notice of appeal on 5 March 2012.
Conclusion
I have reached the view that the proposed notice of appeal is an abuse of the processes of the court. For these reasons, I direct the Registrar to reject the proposed notice of appeal pursuant to Rule 53.