Watters v Payne

[2012] WASCA 166

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   WATTERS -v- PAYNE [2012] WASCA 166

CORAM:   PULLIN JA

NEWNES JA

HEARD:   7 AUGUST 2012

DELIVERED          :   7 AUGUST 2012

PUBLISHED           :  24 AUGUST 2012

FILE NO/S:   CACV 45 of 2012

BETWEEN:   ALLEN BERTIE WATTERS

Appellant

AND

ELIZABETH PAYNE
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :MASTER SANDERSON

File No  :CIV 2635 of 2010

Catchwords:

Practice and procedure - Application under Vexatious Proceedings Restriction Act 2002 (WA) - Application for leave to obtain orders - Turns on own facts

Legislation:

Vexatious Proceedings Restriction Act 2002 (WA)

Result:

Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     In person

Respondent:     No appearance

Solicitors:

Appellant:     In person

Respondent:     No appearance

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

Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231

1. REASONS OF THE COURT:    The appellant filed an appeal notice on 29 May 2012 in relation to an order made by Master Sanderson on 3 November 2010.  The orders made by Master Sanderson were:

   1.The Applicant have leave to bring an application pursuant to Sec 4(2)(c)(i) of the Vexatious Proceedings Restrictions Act 2002 ('the Act') against the Respondent, and

   2.The Respondent be declared a vexatious litigant pursuant to Sec 4(1) of the said Act.

   3.The Respondent pay the Applicant's costs to be taxed.

2. The appeal is well out of time, but this is explained by the fact that he only learned on 1 March 2012 that the orders had been made by Master Sanderson.

3. On 7 August 2012, orders were made by this court that:

   (a)the appellant be granted an extension of time in which to appeal to 29 May 2012 when the notice of appeal was filed;

   (b)all requirements of the rules which would otherwise have had to be complied with before the appeal be heard, be dispensed with;

   (c)the appeal be allowed;

   (d)the orders made by Master Sanderson on 3 November 2010 be set aside;

   (e)the respondent pay the appellant's disbursements to be taxed.

4. The court announced that reasons would be published later.  These are the reasons.

5. The orders made by Master Sanderson were made in accordance with the orders asked for in a notice of originating motion which had been filed in the proceedings dealt with by the master.  The transcript of the proceedings before the master reveals that Mr B Stokes appeared for the applicant - the respondent in these proceedings.  Mr Stokes informed the master that the respondent - the appellant in these proceedings - had not been served.  Mr Stokes said:

   He hasn't been served, sir.  This is an ex parte application.  We are seeking leave and an interim order and then he will be served should we be successful.

6. Section 4(1) of the Vexatious Proceedings Restriction Act 2002 (WA) reads:

   If a court is satisfied that -

   (a)a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or

   (b)it is likely that the person will institute or conduct vexatious proceedings,

   the court may make either or both of the following orders -

   (c)an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;

   (d)an order prohibiting 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).

7. Section 4(2) states that an order under s 4(1) may be made by the court on its own motion or on the application of the Attorney General, the Principal Registrar of the Supreme Court, the Principal Registrar of the District Court or, with the leave of the court, under s 4(2)(c)(i) by a person against whom another person has instituted or conducted vexatious proceedings or under s 4(2)(c)(ii) by a person who has sufficient interest in the matter.

8. 'Vexatious proceedings' is defined in s 3 to mean proceedings:

   (a)which are an abuse of the process of a court or a tribunal;

   (b)instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose;

   (c)instituted or pursued without reasonable ground; or

   (d)conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.

9. The orders the respondent sought mixed up the steps which had to be taken. If the respondent wished to make an application for an order under s 4(1), then she needed an order of the court granting leave to do so under s 4(2)(c)(i). Leave was not required to bring the application for leave under s 4(2)(c)(i) of the Act and yet that is the order sought by the respondent and made in par 1 of the orders. If leave had been granted to the respondent to apply for orders under s 4(1) then the court was prohibited from making orders under s 4(1) without complying with s 4(3). Section 4(3) reads:

   The court must not make an order under subsection (1) -

   (a)staying any proceedings that have been instituted by a person, either as to the whole or part of the proceedings; or

   (b)prohibiting a person from instituting proceedings, or proceedings of a particular class,

   without hearing that person or giving that person an opportunity of being heard.

10. Although it is common to refer to a person being declared a vexatious litigant, that is shorthand for a person being made subject to orders made under s 4(1) of the Act staying the proceedings either in whole or in part, or prohibiting a person from instituting proceedings without leave. There is no utility in merely making an order (as was made in par 2 of the orders) declaring a person a vexatious litigant without an order or orders of the kind referred to in s 4(1) and there is no provision in the Act authorising the court to make such a declaration.

11. If an order had been made under s 4(1)(d) prohibiting the appellant from instituting any proceedings without leave, then an appeal against such an order would itself be a proceeding which required the grant of leave before the appeal could be instituted: see Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231. However, in this case no order was made as specified in s 4(1)(c) or (d), so leave to bring this appeal is not necessary.

12. The appellant was not served with the originating motion. The appellant's single ground of appeal alleges that the master erred in making the order in circumstances where the appellant was not given the opportunity to be heard. The appellant was entitled to be heard in relation to whether the declaration sought in par 2 should be made. The respondent did not seek to be heard on the appeal. The ground must be upheld. It is only necessary to add that it has not been necessary in this appeal to consider whether the application under s 4(2)(c) for leave to apply for orders under s 4(1) has to be served on the person or persons specified in s 4(2)(c)(i) or (ii). The appeal should be allowed and the orders made by Master Sanderson should be set aside.