Tey v Michael Mischin MLC, Attorney General for Western Australia [No 2]
[2015] WASCA 243
•3 DECEMBER 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: TEY -v- MICHAEL MISCHIN MLC, ATTORNEY GENERAL FOR WESTERN AUSTRALIA [No 2] [2015] WASCA 243
CORAM: BUSS JA
MURPHY JA
HEARD: 20 NOVEMBER 2015
DELIVERED : 3 DECEMBER 2015
FILE NO/S: CACV 86 of 2015
BETWEEN: KOK YONG TEY
Appellant
AND
MICHAEL MISCHIN MLC, ATTORNEY GENERAL FOR WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :LE MIERE J
Citation :MICHAEL MISCHIN MLC, ATTORNEY GENERAL FOR WESTERN AUSTRALIA -v- TEY [2015] WASC 146
File No :CIV 2528 of 2013
Catchwords:
Practice and procedure - Appeal against decision that the appellant be prohibited from instituting proceedings under the Vexatious Proceedings Restriction Act 2002 (WA) - Whether the appeal should be dismissed on the basis that none of the grounds of appeal has any prospect of success
Whether leave should be given to the appellant to amend the appellant's case - Appellant seeking transcripts of all hearings and all directions hearings in primary proceedings - Whether evidence that the requisite fee had been paid or waived - Turns on own facts
Whether appeal and all interlocutory proceedings in appeal should be stayed pending special leave application to the High Court of Australia - Turns on own facts
Legislation:
Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)
Supreme Court (Fees) Regulations 2001 (WA), reg 6, reg 7.
Result:
Application dismissed
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: In person
Respondent: Mr A J Sefton
Solicitors:
Appellant: In person
Respondent: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681
Michael Mischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146
Rinehart v Welker [2012] NSWCA 1; (2012) 83 NSWLR 347
Tey v Michael Mischin MLC, Attorney General for Western Australia [2015] WASCA 200
Williamson v The Bendigo Adelaide Bank Ltd [No 2] [2012] WASCA 269
REASONS OF THE COURT:
Introduction
This matter came before the court on 20 November 2015 pursuant to the registrar's notice to attend dated 6 November 2015, the registrar's letter dated 12 November 2015 and a further registrar's notice to attend dated 17 November 2015, to consider:
(a)whether the appeal should be dismissed on the basis that none of the grounds of appeal has any reasonable prospect of succeeding; and
(b)the appellant's application for leave to amend the appellant's case.
Also at the hearing on 20 November 2015, the appellant made an oral application for a stay in terms of a document dated 19 November 2015 which had not been filed, but which was handed up to the court at the hearing on 20 November 2015. The application was to the effect that the appeal and all interlocutory proceedings in it, including the matters the subject of the registrar's notices, should be stayed pending the disposition of an application by the appellant to the High Court for special leave to appeal against the court's orders of 16 September 2015. We dismissed the appellant's application for a stay on the grounds set out later in these reasons.
The appeal
The underlying appeal is in respect of a decision by Le Miere J on 4 May 2015.[1] In that matter, Le Miere J made orders to the effect that the appellant was prohibited from instituting any proceedings, as defined in the Vexatious Proceedings Restriction Act 2002 (WA) (the Act), unless she first obtained leave of the court or Tribunal, as the case requires under s 6 of the Act. His Honour in a lengthy judgment dealing with proceedings brought by the appellant over the years concluded:[2]
I am satisfied that Mrs Tey has instituted and conducted vexatious proceedings. Accordingly, the court may prohibit Mrs Tey from instituting any proceedings or proceedings of a particular class, without the leave of the court. The court has a discretion whether to make an order and if so, what order to make.
In exercising my discretion there are a number of matters which I must take into account. The right of an individual to commence proceedings to enforce or defend his rights is one of the fundamental rights in a free society. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. To limit this right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification. The effect of an order made under s 4(1)(d) of the Act does not remove the right to issue proceedings entirely. A person against whom such an order has been made still has access to the courts. However, she is required to take an additional step in the process by obtaining the permission of the court prior to any claims being issued. Nevertheless, the making of an order under s 4(1) of the Act restricts the rights of the person against whom such an order has been made and for that reason the powers conferred by that section must be exercised with caution.
The court must have regard to the purposes of the Act. The factors which are relevant to the exercise of the discretion are informed by the purpose which the order serves. There are two principal social mischiefs which vexatious litigant legislation traditionally addresses. The first is the waste of scarce and valuable judicial resources on barren and misconceived litigation to the detriment of other litigants with real cases to try. The second is the harassment of litigant's [sic] opponents by the worry and expense of vexatious litigation.
Mrs Tey has persisted in issuing unmeritorious applications relating to or arising out of her dispute with Optima concerning a fee of $550 for accounting or auditing services. If Mrs Tey had only issued unmeritorious applications within that set off [sic] proceedings it may be appropriate to make an order restraining her from issuing further applications within or arising out of that set of proceedings without first having obtained the court's permission to do so. However, Mrs Tey has also instituted vexatious proceedings concerning her conviction in the Magistrates Court for failing to comply with a request to give police her personal details, her conviction in the Magistrates Court for driving a motor vehicle whilst not authorised to do so, proceedings against her neighbour in relation to a retaining wall and proceedings in the State Administrative Tribunal concerning decisions made by the City of Gosnells relating to rates. Mrs Tey has demonstrated the hallmarks of persistent vexatious behaviour; she has persisted in an unreasonable refusal to take no for an answer; she has persisted in unreasonably refusing to accept the finality of court decisions. The appropriate order is that Mrs Tey be prohibited from instituting proceedings without the leave of a court or tribunal as the case requires.
[1] Michael Mischin MLC, Attorney General for Western Australia v Tey [2015] WASC 146 (primary reasons).
[2] Primary reasons [68] - [71].
The procedural history of the appeal
May 2015 - 16 September 2015
The procedural history of the appeal up to 16 September 2015 was set out by this court recently in Tey v Michael Mischin MLC, Attorney General for Western Australia:[3]
The appellant has appealed from a decision of Le Miere J who, on 4 May 2015, made an order pursuant to s 4(1) of the Vexatious Proceedings Restriction Act 2002 (WA) prohibiting the appellant from instituting proceedings without the leave of the court or tribunal, as the case requires under s 6(1) of that Act.
The appellant's notice of appeal was filed on 25 May 2015. Under r 32(2)(b) of the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules), the appellant's case was required to be filed and served by 29 June 2015. That was expressly brought to the appellant's attention by a letter from the Court of Appeal Registrar of 27 May 2015.
The appellant failed to file the appellant's case and the court wrote on 8 July 2015 asking that it be filed without delay. There was no response and, on 29 July 2015, a further letter was sent to the appellant asking for a reply by 5 August 2015, failing which consideration would be given to listing the matter to show cause why the appeal should not be dismissed for failure to file and serve the appellant's case. That letter was also met with silence.
On 27 August 2015, the Court of Appeal Registrar issued a notice to attend, pursuant to rule 43(2)(g)(ii) of the Rules, to show cause why the appeal should not be dismissed on the ground that the appellant had failed to file and serve the appellant's case as required by the Rules. That notice came on for hearing before us on 16 September 2015. By then the appellant's case was more than 10 weeks out of time.
[3] Tey v Michael Mischin MLC, Attorney General for Western Australia [2015] WASCA 200 [2] ‑ [5].
On that occasion, the court further said:[4]
As none of the matters advanced by the appellant provided any legitimate reason for her failure to file and serve the appellant's case, we indicated to the appellant that we intended [to] make a springing order requiring that it be filed and served within a specific time, failing which the appeal would stand dismissed. The appellant was invited to indicate the time she sought but did not do so, instead persisting with her objection to any requirement to file the appellant's case.
We therefore ordered that unless the appellant's case was filed and served on or before 30 September 2015, the appeal do stand dismissed and the appellant is to pay the respondent's costs of the appeal to be taxed.
[4] Tey [7] - [8].
The orders of the court on 16 September 2015 were, relevantly, that:
[U]nless on or before 30 September 2015 the appellant do file and serve an appellant's case in compliance with the Supreme Court (Court of Appeal) Rules 2005, the appeal do stand dismissed and the appellant pay the respondent's costs of today to be taxed, if not agreed.
30 September 2015 - November 2015
On 30 September 2015, a document described as an appellant's case was filed.
Also on 30 September 2015, the appellant filed an application to amend the appellant's case and an affidavit in support. The affidavit is to the effect that:
(a)the appellant had sent a written request to the court to request 'all transcript of proceedings' relating to the primary proceedings and that a further letter had been sent to the principal registrar on 22 September 2015, to which there had been no response;
(b)on 16 September 2015, 'an order was made against [the appellant] unjustly by Justice Newnes JA and Justice Murphy JA';
(c)the affidavit annexed a copy of the appellant's letter dated 22 September 2015 by which she sought, in effect:
Transcript of proceedings ordered on 10 September 2015; Date of hearing (Proceedings): 2 & 3 July, 6 August 2014; and 4 May 2015; and all Directions hearings. Before Judicial Member: His Honour Le Miere J.
On 11 November 2015, the Court of Appeal office received a letter from the appellant saying in effect that she was to attend a medical appointment on 20 November 2015, and was accordingly 'not available' to attend court pursuant to the registrar's notice. The letter also stated that as she had filed an affidavit to amend the appellant's case, she considered the 'notice to attend as a second intimidation and [a] denial of procedural fairness'.
On 12 November 2015, the associate to the registrar wrote to the appellant in the following terms, relevantly:
The registrar instructs that you will need to file and serve an application to vacate the hearing and a supporting affidavit attaching documents in support verifying the hospital appointment and the time of that appointment.
The application to amend the appellant's case will be listed at the same time as the hearing to show cause.
On 17 November 2015, the registrar issued an amended notice confirming, in effect, that the appellant's application to amend the appellant's case would be listed for hearing on 20 November 2015.
The appellant attended the hearing on 20 November 2015. There was no suggestion that she had a medical appointment, notwithstanding her letter to the court dated 11 November 2015.
The purported appellant's case
The appellant's case on its face does not comply with pt 5 r 32 of the Supreme Court (Court of Appeal) Rules 2005 (WA) (Court of Appeal Rules) for a number of reasons, not least of which is that form 7 requires the appellant to certify that:
•in preparing the documents forming part of the appellant's case, the appellant has fully prepared the appellant's case; and
•that in all respects, other than the preparation of the appeal book, the appellant is ready for the hearing of the appeal.
In the document described as an appellant's case filed by the appellant, the appellant, amongst other things, certified the opposite. She certified that:
•in all respects the appellant is not ready for the hearing of the appeal;
•in all respects the appellant is not ready to prepare the appeal books;
The document also contains a certificate in the following terms: 'I intend to file an interlocutory appeal to the High Court of Australia immediately after the 30 September 2015 against the Order made by Justice Newnes JA and Justice Murphy JA on hearing date of 16 September 2015, for I believe I had been denied of procedural fairness and justice'.
The document described as an appellant's case contains two purported grounds of appeal against the decision of Le Miere J.
By ground 1 the appellant says that 'the learned judge erred in law' in that she was denied procedural fairness on the alleged bases that:
(a)she was denied an opportunity to cross‑examine a deponent who deposed that certain court documents had been served on the appellant on 4 November 2013;
(b)certain documents she had filed were not admitted into evidence;
(c)on 4 August 2014, she wrote to the registrar of the Supreme Court in relation to certain documents and said that '[t]he matter was completely ignored'; and
(d)the exercise of discretionary power by Le Miere J was 'questionable'.
Ground 2 alleges that the judge erred in fact because the appellant :
(a)had 'filed of [sic] list of successful cases … which were of substance and rendered compelling evidence that [she] should not be declared a vexatious litigant'; and
(b)had tendered certain documents which 'rendered compelling evidence … against the ludicrous and intimidating proceeding initiated by the applicant the Attorney General on 9 October 2013' and these documents 'were not properly dealt with'.
In relation to ground 1, the appellant's submissions go beyond the ground insofar as the appellant says that she has a 'question' about Le Miere J's impartiality. The only specific material which the appellant identifies with any particularity as to the evidence which Le Miere J refused to admit is said to be a 'coloured photograph' of court documents.
In relation to ground 2, the appellant refers to two cases in which she said she was 'successful'. One was in 'WAD 42/2005 Tey v Commissioner of Taxation', the medium neutral citation for which is [2005] FCA 320. She says that French J (as his Honour then was) dismissed her appeal but did not order costs against her. The second case was in the Western Australian Town Planning Appeal Tribunal, the medium neutral citation of which is [2003] WATPAT 111. The appellant says this was a '[l]andslide victory' and 'set a precedent for Home Occupation'. It was a case in which the tribunal found that Mrs Tey should be permitted to carry on the business of a travel agency from her home for 12 months.
Disposition
Neither ground of appeal has any reasonable prospect of succeeding.
In relation to ground 1, there is no arguable basis disclosed for contending that the primary judge should have allowed the appellant to cross‑examine on a formal matter such as an affidavit of service. The bare allegation that certain documents were not admitted into evidence does not itself raise any proper ground of appeal, and insofar as it is alleged that the colour photograph should have been admitted, no arguable error is disclosed. The third allegation concerning the appellant's request to the registrar on 4 August 2014 is incomprehensible in its terms. Insofar as it refers to an order of Le Miere J on 3 July 2014, that order was to the effect that if the appellant made an application to the registrar under O 36B r 13(1) of the Rules of the Supreme Court 1971 (WA) (Supreme Court Rules), and if the registrar obtained any documents pursuant to that request from another court, the registrar was to forward those documents to Le Miere J's associate. Even if a request had been made by the appellant pursuant to that order (and there is no evidence on the court file in CIV 2528 of 2013 to that effect), there is no allegation that following the request, documents were obtained which were relevant to the proceedings before Le Miere J, which were not already in evidence, which the appellant tendered and which Le Miere J wrongfully refused to admit into evidence. Nor is there an allegation that any request by the appellant had not been properly dealt with by the registrar, and that the appellant had drawn that matter to the primary judge's attention for appropriate relief. Finally, the allegation that Le Miere J exercised a discretionary power which was 'questionable' plainly raises no arguable ground of appeal.
In relation to ground 2, the facts that the appellant lost an appeal in the Federal Court but was not ordered to pay costs, and succeeded in one matter in 2003 in the Western Australian Town Planning Appeal Tribunal, could not of themselves demonstrate any error by the primary judge.
Subject to the question of whether leave should be given to amend, the appeal should be dismissed on the basis that none of the grounds of appeal has any reasonable prospect of succeeding within the meaning of pt 5 r 43(2)(g)(i) of the Court of Appeal Rules.
In relation to the application to amend, the following observations are pertinent. First, the affidavit in support makes no attempt to explain why all of the transcripts requested would be required in order to file a proper appellant's case. The primary judge made detailed findings of fact, made observations about the proper construction of the Act, and outlined the considerations which led him to conclude that it was appropriate to make orders under the Act. There is nothing to indicate why, if the appellant had any complaints about any of those matters, appropriate grounds could not be formulated without seeing all of the transcripts requested. Secondly, although the appellant's affidavit of 30 September 2015 refers to an original application dated 10 September 2015 in CIV 2528 of 2013 to obtain the transcripts, there is no evidence of the payment of the required fee for the transcript.
By reg 6 of the Supreme Court (Fees) Regulation 2002 (WA) (Regulations), the court or an officer of the court is not to act upon such an application unless the fee has been paid. There is a fee which is chargeable for a copy of a transcript, for each page or part of a page, under item 13 in sch 1 div 1 of the Regulations. Such a fee is not a 'filing fee' under reg 7(1d).
Nor has there been a proper application for a waiver of the fee. The court or a registrar has power under reg 7 to waive fees in a particular case 'for special reasons'. The term 'special reasons' is defined to include 'financial hardship'. By reg 7(2) and reg 7(3), unless otherwise directed by a registrar, an application for the waiver of a fee must in the form of sch 4, form 2, and that form must be completed in accordance with the directions specified in it. Where an application for waiver is made on the basis of financial hardship, form 2 of sch 4 of the Regulations requires the party seeking the waiver to specify the 'special reasons' for applying to have the fees waived, and to provide details of the applicant's income, expenditure, assets and liabilities. It is an offence under reg 7(4) for a person to make a statement in the application that the person knows, or has reason to believe, is false or misleading in a material particular.
In this context, the court file indicates that on 2 October 2015, the coordinator of records wrote to the appellant in these terms:
[Reference is made] to your transcript request received at the Central Office on 10 September 2015.
Please note that you have not fully completed the Form 2 application for waiver of fees. You have provided your pensioner concession card but this does not grant you an automatic fee waiver for the production of transcripts.
You have two options available to you, 1. you can pay the full transcript fee of $2,399.80 for the transcripts you have requested or 2. You can complete the Form 2 in its entirety, filling in assets and liabilities, showing your current financial position.
Should you choose to complete the Form 2 I have included a fresh form for you, your request will then be forwarded to the Supreme Court Registrar for determination.
The appellant has not, in her affidavit material before this court, provided any evidence that she has properly completed a form 2 for the purpose of applying for a waiver of fees in accordance with the Regulations. Nor does the court have any record that the appellant submitted a form 2, properly completed.
In the circumstances, the application for leave to amend the appellant's case should be dismissed. The appellant has not demonstrated why, arguably, it would be necessary for her to view all the transcripts requested in order to formulate proper grounds of appeal. Further and in any event, there is no evidence that the requisite fee has been paid or a waiver has been obtained. Finally, to the extent that the appellant contends that any of the transcripts are relevant, given the serious delays in this matter, the time for obtaining them was well past by 30 September 2015, when the springing order was to take effect.
Other matters
As noted at the start of these reasons, the appellant applied for a stay of the appeal and all interlocutory matters in relation to the appeal, pending the determination of her application for special leave to the High Court.
This court has jurisdiction to grant a stay pending the determination of an application for special leave and any subsequent appeal to the High Court. A stay application is appropriately made to this court, rather than the High Court, in the first instance. In exercising the jurisdiction to grant a stay, the court applies the same principles as are applied in the High Court on such an application.[5]
[5] Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79; see also Williamson v The Bendigo Adelaide Bank Ltd [No 2] [2012] WASCA 269.
Those principles were summarised by Brennan J in Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd:[6]
A stay to preserve the subject-matter of litigation pending an application for special leave to appeal is an extraordinary jurisdiction and exceptional circumstances must be shown before its exercise is warranted.
…
In exercising the extraordinary jurisdiction to stay, the following factors are material to the exercise of this Court's discretion. In each case when the Court is satisfied a stay is required to preserve the subject-matter of the litigation, it is relevant to consider: first, whether there is a substantial prospect that special leave to appeal will be granted; secondly, whether the applicant has failed to take whatever steps are necessary to seek a stay from the court in which the matter is pending; thirdly, whether the grant of a stay will cause loss to the respondent; and fourthly, where the balance of convenience lies.
[6] Jennings Construction Ltd v Burgundy Royale Investments Pty Ltd [1986] HCA 84; (1986) 161 CLR 681, 684 ‑ 685. This approach has been adopted by both the High Court and other Australian appellate courts: see the review of authority by the NSW Court of Appeal in Rinehart v Welker [2012] NSWCA 1; (2012) 83 NSWLR 347.
We refused the appellant's application for a stay for the following reasons. First, the matter before the Court of Appeal on 16 September 2015 was whether to dismiss the appeal on the basis of the appellant's failure to comply with the Court of Appeal Rules, or to give the appellant additional time to file an appellant's case. The court gave the appellant further time, and thereby preserved the appellant's right of appeal. It cannot sensibly be said that a stay of the court's orders of 16 September 2015 is required to preserve the subject matter of the litigation when the effect of the court's order was to preserve the appellant's right of appeal on the terms therein stated, despite her non‑compliance with the Court of Appeal Rules. Secondly, there is no substantial prospect that special leave to appeal would be granted in respect of an interlocutory decision of this court granting the appellant further time to file an appellant's case. Further, and in any event, the form of the application for special leave to appeal which the appellant handed to this court is a discursive document from which any alleged error is not, or at least not readily, discernible. Thirdly, in relation to the balance of convenience, the application for special leave was, apparently, filed over two months after the interlocutory decision of this court on 16 September 2015, and on the morning that the matters the subject of the registrar's notices had been listed for hearing. There has been no explanation as to why the appellant left it so late to seek to challenge the court's earlier interlocutory order. In these circumstances, the grant of the stay would have delayed the orderly disposition of the business of this court and resulted in extra cost to the respondent, without cause being properly shown.
After the court dismissed the appellant's application for a stay, the court invited the appellant to make submissions on the matters the subject of the registrar's notices to attend. The appellant elected not to make any submissions and walked out of the hearing.
One final matter should be mentioned. Prior to leaving the hearing on 20 November 2015, the appellant asked the court to grant two 'applications' dated 11 and 16 November 2015 respectively, which she described as applications which had been 'filed'. Those applications had not been filed. The documents to which she referred related to further attempts to procure the transcripts the subject of the court's letter of 2 October 2015, referred to in [28] above, without paying the requisite fee or obtaining the appropriate waiver. The 'applications' were not before the court for disposition on 20 November 2015. Even if they had been, the applications would not have been granted.
Conclusion
The court will order that:
1.The application to amend the appellant's case is dismissed.
2.The appeal is dismissed.
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