Westwill Pty Ltd & Ors v Byrt & Ors

[2010] SASC 99

SUPREME COURT OF SOUTH AUSTRALIA

(Civil)

WESTWILL PTY LTD & ORS v BYRT & ORS

[2010] SASC 99

Reasons for Decision of The Honourable Justice Gray

15 April 2010

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - FROM INTERLOCUTORY DECISIONS - LEAVE TO APPEAL

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - OTHER MATTERS ARISING BEFORE TRIAL

Referral for direction from Registrar pursuant to Rule 53 of Supreme Court Civil Rules that he reject the proposed Notice of Appeal attempted to be filed by the plaintiff - 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 - consideration of operation of Rule 53.

Supreme Court Civil Rules 2006 (SA) r 53; Supreme Court Civil Rules 1987 (SA) r 102.9; Supreme Court Act 1935 (SA) s 39, 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; Westwill Pty Ltd v Norman Waterhouse Pty Ltd [2009] SASC 391; Beverage Bottlers (SA) Ltd v Abode Enterprises Pty Ltd [2009] SASC 272; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; Manolakis v Director of Public Prosecutions (Cth) [2009] SASC 193; Ramsey v Skyring (1999) 164 ALR 378, considered.

WESTWILL PTY LTD & ORS v BYRT & ORS
[2010] SASC 99

Civil

GRAY J.

1. William Paul Jones has attempted to file a Notice of Appeal and attachments 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.

2. Rule 53 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.

3. 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.[1]  The Rule has been held to apply to documents that are incoherent such that parties could not know the case being made against them.[2]  Under a Federal Court Rule in comparable terms, the actual rejection of the document by the Registrar is not subject to judicial review.[3]  The direction made under Rule 53(4), is an administrative act not subject to appeal.[4]

   [1]    Staats v United States of America (1992) 66 ALJR 793.

   [2]    Re Davison (1997) 147 ALR 259.

   [3]    Manolakis v District Registrar (SA) (2008) 170 FCR 426.

   [4]    Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89 at [32]-[33].

4. The predecessor to Rule 53 can be found in Rule 102.09 of the Supreme Court Civil Rules 1987.  That Rule, although in different terms, was of materially the same effect and, as such, commentary in relation to that Rule is helpful in the present enquiry.  That Rule did however contemplate applications for leave to file documents where it appeared to the Registrar that the document was an abuse of process.  Those applications were heard ex parte.[5]  It is to be observed that no such application is provided for in Rule 53. 

   [5]    Kowalski v Davison [2006] SASC 123.

5. 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.

6. 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. 

7. 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.

8. Although of limited relevance to this ultimate question, it is convenient to consider the context in which the Notice of Appeal the subject of these reasons is sought to be filed.  The history of this matter traces back to a decision of a Judge of this court in 1989.[7]  In that case, Westwill Pty Ltd sought to enforce a contract for the sale of property owned by the defendant in that action.  The Judge set aside the contract on the basis that Westwill’s representative, Mr Jones, had taken an unfair and unconscionable advantage of the defendant such that the defendant was at an unfair disadvantage, and that the contract in its terms was unfair.  Since the 1989 decision, Mr Jones has been the driving force behind actions which have been commenced in the District Court and appeals from those decisions to the Supreme Court.  It was observed by both a Master and a Judge of the District Court that the proceedings since the 1989 decision have centred around Mr Jones trying to establish that the Judge in that decision was wrong.[8]  Various actions commenced in the 1990’s were settled.  Two actions were commenced in 2002 in the District Court.  In respect of one of those actions, a Judge of the District Court summarised the background of that action.[9]  A Master of the District Court also set out in detail the interlocutory history of the action.[10]  There is no need to set out in full those summaries, save to observe that the action involved a claim of professional negligence, and that the interlocutory disputation has been long, complex and voluminous. 

   [7]    Westwill Pty Ltd v Heath (1989) 52 SASR 461. A detailed history of this matter can be found in the recent judgment of Sulan J in Westwill Pty Ltd v Norman Waterhouse Pty Ltd [2009] SASC 391.

   [8]    Westwill Pty Ltd v Norman Waterhouse & Ors (Unreported, District Court of South Australia, Judge Sulio, 30 April 2008) at 3-4.

   [9]    Westwill Pty Ltd & Ors v Byrt & Ors [2009] SADC 95.

   [10]   Westwill Pty Ltd and Ors v Norman Waterhouse and Another (unreported, District Court of South Australia, Master Rice, 14 March 2008) at [42]-[50]. Master Rice also summarised the history of another action instituted in the same year by Westwill in Westwill Pty Ltd and Ors v Norman Waterhouse and Another (unreported, District Court of South Australia, Master Rice, 20 May 2008) at [7]-[9].

9. A review of the material discloses that the history of these proceedings, which were examined by a Judge of this Court in the decision of Westwill Pty Ltd v Norman Waterhouse Pty Ltd,[11] have a theme of consistent non-compliance with court procedure on the part of Westwill and Mr Jones, persistent attempts to re-ventilate arguments which have been the subject of previous litigation, and an unwillingness to accept decisions and orders made. 

   [11]   Westwill Pty Ltd v Norman Waterhouse Pty Ltd [2009] SASC 391.

10. The recent observations of Sulan J in Westwill Pty Ltd v Norman Waterhouse Pty Ltd are apposite.[12] In particular, that proceeding was concerned with Mr Jones’ persistent attempts to join a defendant to the action. The Judge observed that Mr Jones had demonstrated a complete inability to accept the inevitable result that his attempts to join the defendant were doomed to fail. The appeal was dismissed and an order made pursuant to section 39 of the Supreme Court Act 1935 (SA) that Mr Jones, Westwill and other named plaintiffs, be prohibited from issuing further proceedings against the proposed defendants on the basis that the plaintiffs had persistently instituted vexatious proceedings.

    [12]   Westwill Pty Ltd v Norman Waterhouse Pty Ltd [2009] SASC 391 at [46].

11. I now turn to the document in the present proceeding.  The question to be asked is whether the proposed Notice of Appeal, on its face, appears to be an abuse of the process of the Court. 

12. The proposed Notice is rambling and incomprehensible such that it is impossible to understand the complaints of Mr Jones.  It is relevant to make the following further observations about the proposed Notice of Appeal.  There are eight named appellants.  The fifth named appellant is not a legal entity, the fifth to eighth named appellants were not parties to the District Court action upon which the appeal is lodged, and it appears that the second and third named appellants are deregistered companies.  Mr Jones does not appear to have authority to represent any of the named appellants other than himself.  The appeal purports to be “against the judgment of Judge Chivel [sic] and previous decisions”, but instead refers to the decision of Sulan J in Westwill Pty Ltd v Norman Waterhouse Pty Ltd.[13]  The Notice of Appeal is not in the proper form.  The grounds of appeal do not address the orders sought to be appealed from.  The appeal is out of time, but there is mention of an extension on the basis of the decision of Justice Sulan in Westwill Pty Ltd v Norman Waterhouse Pty Ltd, “and new evidence from Council and Mr Harris”.  No intelligible grounds are given for the application for permission to appeal.  As the appeal purports to be from an interlocutory judgment of a District Court Judge[14] it should be to a single Judge of the Supreme Court, not the Full Court.[15]

    [13]   Westwill Pty Ltd v Norman Waterhouse Pty Ltd [2009] SASC 391.

    [14]   Beverage Bottles (SA) Ltd v Abode EnterprisesPty Ltd [2009] SASC 272.

    [15]   See Supreme Court Civil Rules 2006 rule 280.

13. Rule 53 is, in part, a reflection of the need for courts to protect their resources, while dealing with cases justly.  This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications.[16]  While a court is occupied dealing with matters devoid of merit, meritorious claims are left wanting access to the courts.[17]  On the other hand, a fundamental rule of law is that all persons have access to courts.[18]  Regardless, general interests of justice and the public interest combine, to require that there be procedures for ensuring that a court can prevent the institution of frivolous or vexatious proceedings, in the sense that those proceedings cannot succeed.[19]  It is however a power which should be exercised with care.

    [16]   Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 93 considered in Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193 at [31].

    [17]   Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193 at [32].

    [18]   See Ramsey v Skyring (1999) 164 ALR 378.

    [19]   Staats v United States of America (1992) 66 ALJR 793 where Deane J was considering a Rule in the High Court Rules comparable terms to Rule 53.

14. I have no hesitation in the circumstances of this case in directing the Registrar to reject the proposed Notice of Appeal and its attachments, pursuant to Rule 53 of the Supreme Court Civil Rules.  For the reasons given, I am satisfied that the document on its face is an abuse of the process of the Court.  I direct that these reasons be served on Mr Jones.