ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :KENNETH MARTIN J
Citation  :VELLA -v- MICHAEL JOHN BOWDEN OF CANNON BOWDEN & CO [2011] WASC 78
File No  :CIV 1709 of 2010

Catchwords:

Appeal against strike out of portions of appellant's indorsement to writ of summons - Issues previously litigated and determined in criminal proceedings - Application of Hunter principles - Allegations of fraud - Natural justice - Application to have coram disqualified

Legislation:

Nil

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: In person
Respondent: Mr P D Quinlan SC

Solicitors:

Appellant: In person
Respondent: MDS Legal

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

Hunter v Chief Constable of the West Midlands Police [1982] AC 529
Re The State of Western Australia; Ex parte Vella [No 2] [2012] WASCA 272
Vella v Bowden [2011] WASC 78
Vella v Bowden [2011] WASCA 158
Vella v The State of Western Australia [2006] WASCA 129
Vella v The State of Western Australia [2006] WASCA 177
Vella v The State of Western Australia [2006] WASCA 30
Vella v The State of Western Australia [2007] HCATrans 167
Vella v The State of Western Australia [2007] WASCA 59
Vella v The State of Western Australia [2008] HCASL 552
Vella v The State of Western Australia [2012] HCASL 81

REASONS OF THE COURT:

Introduction

This is an appeal against a decision of Kenneth Martin J in which his Honour struck out aspects of the indorsement of the writ issued by the appellant against the respondent. The respondent had appeared for the appellant as counsel at a trial in which the appellant was convicted of the wilful murder of his estranged wife. The portions of the writ which were struck out by his Honour contained allegations to the effect that:
(a)the respondent's conduct had resulted in the appellant's 'false imprisonment';
(b)the respondent had conducted the appellant's defence in a manner that 'was detrimental and fatal to the defence of provocation' by allegedly failing to obtain certain evidence and make certain investigations, and by advising the appellant that he could not change his guilty plea in relation to the 'assault charge';
(c)the respondent had disclosed the 'defence of provocation' to the prosecutor; and had not put the appellant's case properly, including by not examining and cross‑examining witnesses in accordance with instructions given by the appellant; and
(d)the respondent had deliberately conducted the appellant's case so as to deny the appellant a fair trial.
His Honour found, in effect, that the appellant's allegations involved a collateral attack on his criminal convictions and associated appeals in the criminal justice system. His Honour in this regard relied upon the principles…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Vella v Bowden [No 2]

Details

AGLC: Vella v Bowden [No 2] [2012] WASCA 271
Case: [2012] WASCA 271
Decision Date: 21 DECEMBER 2012

CaseChat Overview and Summary

The appeal, Vella v Bowden [No 2], was brought by the appellant, Mr Vella, against the decision of Bowden J to strike out portions of his indorsement to the writ of summons. The appellant was challenging the validity of a decision made by the respondent, Bowden J, in a previous matter. The legal dispute centred on whether certain allegations of fraud and issues regarding the application of Hunter principles were properly before the court. Additionally, the appellant sought to have the coram disqualified on the basis of natural justice.

The court had to determine whether the matters raised by the appellant were res judicata due to their previous determination in criminal proceedings. Furthermore, the court needed to consider the application of Hunter principles to the current proceedings, specifically whether the allegations of fraud and the application of Hunter principles were properly before the court. The court also had to decide if the appellant's application to disqualify the coram on the grounds of natural justice was valid.

The court found that the matters raised by the appellant were indeed res judicata, having been previously litigated and determined in the criminal proceedings. The court held that the appellant's claims were barred by the doctrine of res judicata, as they were the same issues that had already been determined in the criminal case. The court also found that the application of Hunter principles was not properly before the court, as they did not form part of the issues that were raised in the criminal proceedings. Finally, the court dismissed the appellant's application to disqualify the coram, finding that there was no valid grounds for doing so on the basis of natural justice. Consequently, the appeal was dismissed, and the decision of Bowden J to strike out the portions of the appellant's indorsement to the writ of summons was upheld.

Orders