Westwill Pty Ltd v Norman Waterhouse Pty Ltd - [2009] SASC 391

SUPREME COURT OF SOUTH AUSTRALIA
(Applications Under Various Acts or Rules: Application)
WESTWILL PTY LTD & ORS v NORMAN WATERHOUSE PTY LTD & ANOR
[2009] SASC 391
Judgment of The Honourable Justice Sulan
17 December 2009
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - PARTIES - JOINDER OF PARTIES
Application made by District Council of Barossa for an order pursuant to s 39 Supreme Court Act 1935 (SA) that the proposed plaintiffs be prohibited from instituting further proceedings against it in relation to the present action and another action instituted in the District Court - application allowed - Court satisfied that the Council has standing and that the proposed plaintiffs have instituted proceedings without reasonable grounds.
Notice of Appeal to the Full Court of the Supreme Court against the decision of a District Court Judge fails to formulate proper grounds of appeal - appeal summarily dismissed.
Supreme Court Act 1935 (SA) s 39; Supreme Court Rules 2006 r 290(1)(h), referred to.
Commonwealth Bank of Australia v Heindrich [2003] SASC 322; Ramsey v Skyring (1999) 164 ALR 378; Brogden v Attorney-General [2001] NZCA 208; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154, considered.

WESTWILL PTY LTD & ORS v NORMAN WATERHOUSE PTY LTD & ANOR
[2009] SASC 391
Civil

SULAN J
Background
This matter first came before me on 4 September 2009. Westwill Pty Ltd (“Westwill”), Telefind Pty Ltd (“Telefind”), Eva Developments Pty Ltd (“Eva”), William Paul Jones (Mr Jones), Nathan Arch Jones, The Paul Jones Family Trust, William Archibald Jones and Mary Isabel Jones (together referred to as the Jones interests), seek to appeal from a judgment of Judge Soulio delivered on 30 April 2008 dismissing an appeal from Master Rice of the District Court. The application before Master Rice, which is the subject of this appeal, was to join Telefind, Eva and the Jones interests, as plaintiffs, and the Barossa Council as a defendant in action No. 1207 of 2002 in the District Court. There is also another action in the District Court, being action No. 1367 of 2002. That action has been stayed due to the failure of Westwill and Mr Jones, to provide security for costs ordered by Judge Smith of the District Court. When the action was stayed, Mr Jones, on behalf of the companies and the Jones interests, sought to revive this action No. 1207 of 2002.
The matter has a long history. The present application has its origins in an action in the Supreme Court. Westwill sought to enforce a contract for the sale of property, owned by Mr Heath, which Westwill proposed to include with another adjoining property in a development in the Barossa Valley. Duggan J set aside the contract and dismissed Westwill’s claim. He concluded that Mr Heath had been misled by Mr Jones and that Westwill, through its representative, Paul Jones, had taken unconscionable advantage of Mr Heath.[1]
[1] Westwill Pty Ltd v Heath (1989) 52 SASR 461.
A number of years later, Telefind instituted proceedings against a Mr Dallwitz. That action was settled at trial.
Thereafter, Westwill commenced an action against Norman Waterhouse, solicitors, and James Cudmore, in respect of the Heath trial. Proceedings were also issued against Norman Waterhouse and Mr Cudmore in a separate action in respect of the Telefind trial. Mr Jones has been given leave to represent Westwill, Telefind and Eva, as well as the Jones interests. He is the driving force behind the various actions which have been commenced in the District Court. Initially, Mr Jones and Westwill pursued the action relating to the Telefind trial but, when that action (No. 1347 of 2002) was stayed, he sought to proceed with the action No. 1207 of 2002, which is the subject of these proceedings.
On 20 December 2007, Mr Jones was directed by Master Rice to explain why he needed to join additional defendants to the action and to explain the nature of the claim as it affected Norman Waterhouse. There were a number of appearances before Master Rice. Eventually, after a number of attempts, a statement of claim was delivered with a number of new proposed plaintiffs claiming damages against The Barossa District Council (“the Council”) and Ward & Partners, solicitors. All of these claims were issued out of time. The claim against Ward & Partners did not proceed.
Master Rice in his judgment dealt extensively with the background facts leading to the application. He then considered the draft statement of claim. He concluded:
As can be seen it is virtually impossible to understand the plaintiff’s position. However, he has prepared a draft pleading and supporting materials, which are contained in a volume dated 30 November 2007 (FDN 16). At no stage does Mr Jones explain why over a period from 1989 to 2007 he delayed in seeking to sue the Council as a party to this action.
Council was not sought to be joined as a party to action 1207 of 2002 until September 2007 (FDN 14). That delay coupled with the assumption that Mr Jones made on material which either was or could have been in his possession over those many years, coupled with his inability to state the real basis of the cause of action gives rise to tremendous and it seems insurmountable difficulties in seeking to understand the case which is proposed to be put forward.
The Master then dealt with Mr Jones’ submissions. He concluded that there was no proper basis for joining the Council to the action, as there is no common question of law or fact with the action originally contemplated against Norman Waterhouse. Further, the events upon which the claim is based do not arise out of the same transactions or series of transactions as set out in the original statement of claim. He refused the application to join the Council as a defendant to the action.
The appeal to a District Court Judge
Westwill appealed. On 30 April 2008, Judge Soulio of the District Court, who heard the appeal, observed:[2]
It is apparent that Mr Jones and by implication the other plaintiffs, where relevant, have not been able to accept the outcome of Duggan J’s decision in Westwill Pty Ltd v Heath. A notice of appeal against that decision was lodged but subsequently withdrawn. It is now almost 20 years since that decision was delivered and again as the Master observed, Mr Jones’ proceedings are all centred around showing Duggan J was wrong. (Citation omitted)
[2] Westwill Pty Ltd v Norman Waterhouse and Others (unreported, District Court of South Australia, Judge Soulio, 30 April 2008) 3-4.
Judge Soulio concluded that the Master’s finding that there was no proper basis for joinder of the Council was correct, and that the Master was correct in dismissing that application. He dismissed the appeal.
The Notice of Appeal to the Full Court
A Notice of Appeal against the decision of Judge Soulio was lodged on 4 August 2009, well out of time. I consider that the Notice of Appeal fails to address the judgment of Judge Soulio. It is not in a proper form, and is a rambling document attempting to reiterate a number of complaints that have been made by Mr Jones over a number of years. No proper grounds of appeal are formulated. The document is an attempt to re-argue a case which has been the subject of numerous decisions in the District Court. When I indicated to Mr Jones the difficulty he faced in pursuing the appeal, he sought an adjournment to obtain legal assistance and advice.
Accordingly, I gave leave to Westwill and Mr Jones to file an Amended Notice of Appeal, which was filed on 10 November 2009. Again, the notice is not a proper Notice of Appeal. Not only does it seek to appeal Judge Soulio’s decision, but it seeks to appeal Master Rice’s decision. It includes assertions of fact and claims that there are now new facts which support Westwill’s claim. For example, the notice asserts, “Permission is sort [sic] to appeal based on new facts discovered that can reflect a proper statement of claim”. The Amended Notice of Appeal is yet a further attempt to re-argue matters that have been the subject of various decisions in the District Court. The Notice seeks to raise matters relating to a decision of the Environment, Resources and Development Court. It is another attempt to re-open a case which has no merit. The application is out of time. The grounds of appeal, insofar as they are comprehensible, do not set out grounds of appeal that have any prospects of success. Westwill complains that there has been a failure by the Council to have made discovery. There has never been a requirement upon the Council, or any other proposed defendant, to make discovery as Mr Jones, Westwill, Telefind, Eva and the Jones interests have never been able to formulate a claim which requires a defence.
The Notice of Appeal refers to “new facts discovered which can reflect a proper statement of claim”. The Notice refers to Duggan J’s decision, a decision of Commissioner Tomlinson in the Environment, Resources and Development Court, and a decision of Judge Clayton, without identifying the relevance of any of the decisions to the appeal.
Westwill has filed numerous documents, including a document titled “Proposed Statement of Claim”. The document is deficient in a number of respects. It appears to be an attempt by Westwill and Mr Jones to ventilate arguments which have been the subject of previous litigation. Westwill and the other proposed plaintiffs allege fraud and breach of duty. Those allegations are not properly pleaded. The new facts which Westwill claims have come to light are not new facts. They could have been ascertained previously. It is unnecessary to set out in detail the deficiencies of the document, as it is not directly relevant to the Notice of Appeal. Nevertheless, it demonstrates that Mr Jones is bent upon continuing to attempt to formulate a claim against the Council.
Rule 290(1)(h) invests this Court with power summarily to dismiss an appeal if it is obvious that it cannot succeed. That power may be exercised by a single judge of the Court. This appeal is so defective in form and substance that it must be struck out. In my view, it is clearly an abuse of process. Further, it fails to invoke the jurisdiction of the Full Court, and it is beyond argument that the appeal must fail.
In the circumstances, I propose to dismiss the appeal.
The application pursuant to s 39 of the Supreme Court Act 1935
The Council applies for an order, pursuant to s 39 of the Supreme Court Act 1935, that Westwill, Mr Jones, Telefind, Eva, Nathan Arch Jones, the Paul Jones Family Trust, William Archibald Jones, and May Isobel Jones (together referred to as “the proposed plaintiffs”), be prohibited from instituting further proceedings in relation to the subject matter of this action and action No. 1347 of 2002.
The relevant subsections of s 39 are:
(1)If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:
(a)     an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without permission of the court;
(b)     an order staying proceedings already instituted by that person.
…
(5)For the purposes of this section, proceedings are vexatious –
(a)     if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or
(b)     if instituted without reasonable ground.
(6)In this section –
prescribed court means –
(a)     the Supreme Court; or
(b)     any other court of the State; or
(c)     the Workers Compensation Tribunal; or
(d)     any other tribunal of the State prescribed by the regulations;
proceedings means civil or criminal proceedings instituted in a prescribed court.
Background / facts
Before I consider the relevant principles in respect to the application, it is convenient to deal with the underlying facts upon which the applicant relies in support of its application.
As I indicated earlier in my reasons, the proposed plaintiffs’ complaints have their genesis in an action brought by Westwill against a Mr Heath. Some time after Duggan J delivered his judgment, further proceedings were issued in the 1990s by Westwill, Telefind, Eva and Mr Jones in the Supreme Court. Those proceedings were settled.
In 2002, proceedings were issued in the District Court against Norman Waterhouse and James Cudmore, the former solicitors of Westwill and Mr Jones, in two actions, No. 1207 of 2002 and No. 1347 of 2002, in the District Court.
Action No. 1347 of 2002 was the subject of a security for costs order in June 2007. Westwill appealed that order and Judge Smith of the District Court dismissed the appeal. Westwill then lodged an appeal to a single Judge of the Supreme Court. In July 2008, the Chief Justice refused to grant leave to appeal. There was an application for an extension of time to bring an appeal, which was again refused. There was an application to appeal to the Full Court against the Chief Justice’s refusal to grant leave, which was not pursued by Westwill.
The appeal was struck out, upon application of Norman Waterhouse.
Over the years, there were numerous applications by Westwill and Mr Jones, with respect to action No. 1347 of 2002, including applications to join additional plaintiffs, and applications to join defendants, including the Council. There were a number of attempts to formulate a statement of claim. In a judgment of the District Court seeking to appeal a decision of Master Rice in which he dismissed one action for want of prosecution, Judge Chivell referred to the background. He said:[3]
[3] [2009] SADC 95, [4].
For the most part, the plaintiffs have not been legally represented. There has been a vast amount of interlocutory disputation in the action, as the bulky file demonstrates. For the purposes of this appeal, however, it is only necessary to record that:
·on 8 June 2007, the learned Master ordered that the plaintiffs provide security for the defendants’ costs up to the end of the first day of trial in the sum of $50,000;
·an appeal from that order was dismissed by Judge Smith of this Court on 22 August 2007;
·leave to appeal from Judge Smith’s decisions was refused by Doyle CJ on 18 July 2008;
·the plaintiffs sought to appeal to the Full Supreme Court, but the appeal was eventually struck out by Kourakis J on 24 October 2008 (in chambers);
·the defendants applied on 28 October 2008 (FDN83) for dismissal of the action for want of prosecution because the plaintiffs have never complied with the order for security for costs. The plaintiffs’ representative, Mr Jones, informed the Master at the hearing of the application that the orders could not, and would not, be complied with. At the hearing of this appeal he told me the same thing;
·on 11 March 2009, two days before the hearing of that application, the plaintiffs filed an application which in the words of the Master, “in effect asks me to reconsider my order for security for costs … on the basis of ‘fresh evidence’ which (Mr Jones) asserts has been deliberately withheld from the plaintiff(s) by the defendants” (Reasons, [3]);
·the learned Master entertained this application despite the various appeals undertaken by the plaintiffs, presumably on the basis that Rule 100.04 of the 1987 Rules of Court anticipates application for the variation of an order for security for costs “at any time” (see the notes to the rule in Lunn, Civil Procedure in South Australia, at 100.04.1 at p10,675). Whether such a reconsideration of the original order falls within the concept of “variation” may be debatable. On any view, the Master treated the application in a manner very favourably to the appellants;
·the Mater found that none of the evidence was “fresh”, let alone withheld by the defendants – indeed, much of it had been disclosed by the defendants in the discovery process;
·further, the Master, after hearing Mr Jones at length, found that all of the issues raised were in essence an attempt to go behind the judgment of Duggan J in Westwill Pty Ltd v Heath (1989) 52 SASR 461. In that case, the plaintiffs appealed, but the appeal was subsequently withdrawn. I will discuss this case in a little more detail shortly;
·the Master correctly applied the principles surrounding finality in litigation, quoting from the judgment of the High Court in D’Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 at [34]. The quotation included the following:
Those doctrines prevent a party to a proceeding raising, in a new proceeding against a party to the original proceeding, a cause of action or issue that was finally decided in the original proceeding … The principal qualification to the general principle that controversies, once quelled, may not be reopened is provided by the appellate system.
·    further, the Master observed that the plaintiffs, after a long and exhaustive interlocutory process, had, with the assistance of a legal practitioner, obtained leave to file and serve an Amended Statement of Claim. Unfortunately, they no longer have that assistance. That amended claim was much narrower than had previously been the case. The “new” material sought to broaden out the scope of the issues again, a path to which the Court had previously denied them access;
·    the learned Master then dealt with the documents Mr Jones wished to discuss in detail. In summary, he found that they were inadmissible ([27]) and irrelevant ([31]);
·    finally, the learned Master concluded:
The bottom line is this: the material in support of the application of the plaintiff, FDN 86, is not sufficient to cause me to reconsider the issue of the security for costs at all. The allegations have been presented previously. The assertions that the documents have been intentionally withheld by the defendants is simply not made out at all. ([38]).
·    the learned Master refused to reconsider the order for security for costs.
·    He then considered the application to dismiss the action. He noted Mr Jones’s intimation that security could be provided. He noted that the plaintiffs had had ample time to arrange security but had not, apparently, even attempted to comply. After referring to the comments of Lander J in Wilshire-Smith v Leighton Hill P/L (No 2), unreported, No S5176, delivered 14 July 1995 (see Lunn, ibid, at p10,675), he dismissed the action for want of prosecution, and ordered the plaintiffs to pay the defendants’ costs of the action.
In the course of the various applications made in action No. 1347 of 2002, the applicants sought to join the Council. On 18 July 2005, Master Rice dismissed that application, which was then the subject of an appeal to Judge Clayton of the District Court of South Australia. That appeal was dismissed on 24 January 2006.
Westwill and Mr Jones subsequently issued a further application seeking to join the Council to the District Court action No. 1207 of 2002. That application was heard by Master Rice. He dismissed that application and gave detailed reasons on 14 March 2008.
In his reasons, Master Rice set out the long history relating to the various applications that had been made. In the course of his judgment, Master Rice made the following observations:[4]
[4] Westwill Pty Ltd and Ors v Norman Waterhouse and Another (unreported, District Court of South Australia, Master Rice, 14 March 2008) [42] – [50].
As can be seen from the above discourse, there was a disjointed and largely incomprehensible story in the action of Westwill Pty Ltd v Norman Warehouse [sic]. When this matter was called on on 20 December 2007, Mr Jones was directed to explain why he needed to join additional plaintiffs to the action and more particularly describe the nature of the claim as it affected Norman Waterhouse.
On the 20 September 2007, Mr Jones issued the application and sought the joinder of the District Council of the Barossa. The proposed defendant was served and Mr Duddy appeared. Mr Duddy had previously been the subject of a similar application in Action 1347 of 2002. It was dismissed and there was no appeal. The application to join the Council in Action 1347 of 2002 was unrelated it seems, to the application to this action.
What Mr Jones did, as a result of, but contrary to my orders, was to propose two statements of claim in the one action by different plaintiffs against different defendants. I explained to him that he could not have separate, unresolved and unrelated statements of claim in the one action each being presented at the same time. He wished to consider the matter.
Ultimately, and FDN 16 bears this out, a new draft statement of claim was delivered with a string of new plaintiffs claiming damages against the Barossa District Council and Ward & Partners but not Norman Waterhouse. It is obvious that none of these causes of action by any of the plaintiffs are issued within time.
Again, this has been the subject of discussion with Mr Jones on a number of occasions and he argues that by reason of s4 of the Limitations of Action Act, as the complaints relate to “land”, he has a 15 year time period. This is not correct. I reject it. These claims are for damages for negligent advice. A 6 year time limitation applies.
At the beginning of the argument on 20 December 2007, I asked Mr Jones if he wished to pursue a claim against Norman Waterhouse. Initially he said no. Later he said he did. It is fair to say that as he prevaricated he wished to further consider his position. It is clear from the proposed pleading that there is no claim that can be pursued against Norman Waterhouse, although he stated that could wait until after his claim against the Council was concluded.
He thought if he was unsuccessful against the Council, then Norman Waterhouse would have to be responsible for his losses, whatever they are, and this would include the whole of the family and related entities’ financial losses. No pleading put forward by Mr Jones could explain this connection.
I told him that I would not allow this approach to be taken, especially with regard to such an old action and where he has indicated that he does not wish to proceed against the named defendants. There were certain other defined consequences. If that decision were made by Mr Jones, then I told him that:
1.I would not allow the joinder of the District Council of Barossa to the action, as it was not a claim within R27.01 allowing joinder.
2.The action was out of time.
3.I would not allow the joinder of Ward & Partners.
4.That any proceedings against those entities would have to be by way of separate proceedings.
The defendants should not have to wait for years to ascertain whether the plaintiff has an arguable claim against them. The costs incurred to date by the named defendants are substantial. There is no hope of any recovery.

Master Rice observed that it was virtually impossible to understand Mr Jones’ position. The pleadings were almost incomprehensible, and it is very difficult, if not impossible, to understand the case which is proposed to be put forward. Master Rice refused the application to join the Council as a defendant.
The respective background history referred to by Judge Chivell and Master Rice provide a summary of many, but not all, the applications and proceedings which have been issued by Mr Jones on behalf of the proposed plaintiffs.
Master Rice’s decision was appealed to Judge Soulio, who dismissed the appeal. In the course of his reasons, Judge Soulio made the following observation:[5]
It appears from a perusal of the materials filed from time to time by Mr Jones, and the plaintiffs, that the genesis of the plaintiff’s [sic] total litigious activity relates to a contract between Westwill Pty Ltd and one Mr Heath. That contract was entered into on 22 March 1988 and related to the sale of certain land in the Barossa Valley. Proceedings were instituted by Westwill seeking specific performance of the contract and the matter proceeded to trial before Duggan J. He delivered judgment on 21 December 1989 and found that the plaintiff had taken unfair and unconscientious [sic] advantage of the defendant, that the defendant was at an unfair disadvantage which amounted to a special disadvantage in relation to the contract, and the contract was in its terms unfair. Duggan J set aside the contract on the basis of the unconscionable conduct of the plaintiff.
In 1995 proceedings were instituted on behalf of Telefind Pty Ltd and against a Mr Dallwitz. That action was settled on 11 March 1997.
The plaintiffs instituted the within action No.1207/2002 against Norman Waterhouse and Mr Cudmore in respect of the conduct of the Telefind action.
The plaintiffs instituted proceedings in action No.1347/2002 against Norman Waterhouse in respect of the Heath trial. That action was later stayed following the making of an unsatisfied order against the plaintiff for security for costs.
[5] Westwill Pty Ltd v Norman Waterhouse and Others (unreported, District Court of South Australia, Judge Soulio, 30 April 2008) 2.
Judge Soulio observed that it was almost 20 years since Duggan J’s decision was delivered. He agreed with the Master that there was no proper basis for joinder of the Council to the action. There was no common question of law or fact with the action against Norman Waterhouse and Cudmore. The events alleged do not arise out of the same transaction or series of transactions. He agreed with Master Rice’s conclusions that the original Statement of Claim identified issues which were completely unrelated to the action that Mr Jones, on behalf of the proposed plaintiffs, now contemplated. He dismissed the appeal.
That decision was the subject of the appeal with which I have dealt in some detail earlier in these reasons, and which I indicated to Mr Jones that I intended to dismiss.
On 20 May 2008, in an application by a number of defendants seeking orders for costs in action No. 1207 of 2002, Master Rice again summarised the position as follows:[6]
A number of actions have been issued, but the main ones by Westwill, Telefind or Eva were 1347/02 and 1207/02. The other action 1347 is the subject of a security for costs order. I note the appeal to Judge Smith was dismissed and the notice of appeal to the Full Court has not proceeded. I am told that may proceed. Today Mr Jones on behalf of Westwill sought to have this costs argument adjourned so that he could bring an application to set aside the security for costs order in the other action. I refused that application because these two actions are, in truth, unrelated. I’ve made orders previously and comments to that effect by reason of the facts (as best they can be ascertained) and the time period.
The action no. 1207/02 against Norman Waterhouse was problematic and whilst it touched upon the events in action 1347/02, it failed to provide adequate particulars. The action though was dormant for a long period of time, about 2003 to mid 2007 because of the emphasis which the plaintiffs put on the other action. In action 1347/02, I dismissed the claim. Judge Clayton on appeal after about a one year of repeated drafts being presented by the plaintiff’s then solicitor, allowed the appeal and the matter proceeded to the date of the security for costs order.
After that occurred the plaintiff then revived this action. The plaintiff, Westwill, presented a proposed statement of claim. The first version was filed on 20 September 2007 ...
[6] Westwill Pty Ltd v Norman Waterhouse and Another (unreported, District Court of South Australia, Master Rice, 20 May 2008) [7] – [9].
Master Rice observed that leave to amend and join additional plaintiffs was refused in respect of the statement of claim. Master Rice observed that a number of the proposed plaintiffs had not participated in the proceedings. They were named by Mr Jones without obtaining their actual consent. Master Rice observed that Mr Jones has a strong and resolute view that he has been “hard done by”. He believes for his own purposes, and for that of Westwill, that they have suffered substantial losses and, in fact, his life has been personally ruined as a result of the Heath litigation.
Master Rice’s observations were confirmed before me when Mr Jones made submissions in respect of this application. Master Rice made the following observation:[7]
Mr Jones’ view of justice and fairness is narrow, blinkered and in my view, even perverse. I put to him not only today but previously that the number of hearings, the change of direction, the bulldozer approach to moving this action ahead, has cost these defendants or proposed defendants, tens of thousands of dollars. I know that it cost Mr Heath a substantial sum, somewhere around $80,000 and those costs were not paid. Mr Jones told me at one stage that Heath litigation personally ruined Mr Heath.
[7] Ibid, [21].
On 5 March 2009, Master Rice delivered reasons in respect of an application by Westwill and others yet again seeking leave to join the Council as a defendant to the action No. 1207 of 2002. Master Rice again summarised the position. Master Rice observed that when the application was issued, he received correspondence from Mr Jones as well as the proposed amended statement of claim and various other documents. I pause to observe that I was subjected to similar treatment. The Master referred to his earlier decision of 14 March 2008 and observed that there were no defendants to the action. It was dismissed. Mr Jones indicated that he intended to bring further claims.
In submissions before me, in the face of my intimating to him that the appeal was without merit, Mr Jones reiterated that he intended to continue to litigate issues and intended to bring further applications seeking remedies against the Council. This threatened conduct to continue litigation, no mater what my decision may be, is indicative of a litigant who has a grievance and demands that someone must pay. The application before Master Rice was a third attempt to join the Council as a party. Master Rice observed:[8]
I take into account in making these comments that Mr Jones is unrepresented. However, a review of the two actions will see that a staggering amount of leeway and indulgence has been granted to him over a long period of time …
[8] Westwill Pty Ltd & Ors v District Council of Barossa (unreported, District Court of South Australia, Master Rice, 5 March 2009) [43].
He continued:[9]
In my view Mr Jones has been given an inordinate leeway in trying to pursue a claim. I am of the view now that he is, in reality, a vexatious litigant in the sense that he is a true querullent. He is blind to any version of events other than the one he proposes.
Mr Jones has, it seems, nothing else to do in his life, but ponder what might have been had it not been for the loss of the Heath litigation. He it putting all his time and effort into pursuing actions to seek to bring others to answer for his own mistakes. He is the one who is criticised by Duggan J in the Westwill decision. He cannot accept it.
[9] Ibid, [48] – [49].
Master Rice refused the third application of Westwill and Mr Jones to join the Council.
The history of events, as outlined in various decisions of Master Rice and others demonstrate that Mr Jones and those whom he purports to represent have had many opportunities to satisfy the District Court that they have a genuine claim against the Council. Mr Jones and the proposed plaintiffs have repeatedly failed in their attempts to join the Council as a defendant to the District Court actions. Both District Court actions have been dismissed as, in each case, there is no named defendant.
Mr Duddy submits that the Council should not be required to continue to respond to further applications of the proposed plaintiffs to join them in proceedings which have no merit.
The applicable principles
Before the Court makes an order pursuant to s 39 of the Supreme Court Act 1935, the Court must be satisfied that the Council has standing, and that the proposed plaintiffs have instituted proceedings for an ulterior purpose or without reasonable grounds. I observe that the making of an order pursuant to s 39 is an extreme remedy, having regard to the fundamental principle that a person should, in the ordinary course, have a right of access to the courts.[10]
[10] Ramsey v Skyring (1999) 164 ALR 378.
I adopt the procedure referred to by Debelle J in Commonwealth Bank of Australia v Heinrich[11] when he observed that the applicant must, first, satisfy the court that the respondents have persistently instituted proceedings which are vexatious within the meaning of s 39(5). Debelle J considered that it is relevant to have regard to the whole history of the matter. The question of whether a defendant has persistently instituted vexatious proceedings and whether they have been instituted without reasonable grounds is to be determined objectively, having regard to the number and nature of proceedings that have been instituted. I adopt the following statement from Brogden v Attorney-General,[12] which has been approved in Mitsubishi Motors Australia Ltd v Kowalski: [13]
What constitutes institution of such proceedings ‘persistently’ will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she bring is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed.
[11] [2003] SASC 322.
[12] [2001] NZCA 208, as cited in Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154, [21].
[13] [2005] SASC 154.
Findings
I have had regard to the number of proceedings brought by Mr Jones on behalf of Westwill and the other plaintiffs. Mr Jones is continuing to re-litigate issues which have been the subject of a number of determinations, both in the District Court and in this Court. I am satisfied that Mr Jones is unable to come to terms with the fact that he cannot formulate a claim against the Council which is sustainable.
When, after two previous attendances before me, I indicated to Mr Jones that I intended to proceed to hear the applications, he sought yet another adjournment so that he could reformulate the Notice of Appeal and the proposed statement of claim. I had previously adjourned the application to enable Mr Jones to seek advice and, if advised, to file an amended Notice of Appeal. In response to that invitation, Mr Jones filed numerous books of documents, none of which are relevant to the appeal. He now asserts that there is new evidence which supports his case. He has been unable to clearly articulate his claims.
The comments by Master Rice about Mr Jones are apposite. I need not repeat them, but I adopt them. Accordingly, Mr Jones has demonstrated a total inability to accept the inevitable result that the proposed plaintiffs’ attempts to join the Council are doomed to fail.
I do not doubt that Mr Jones genuinely believes that he, his companies and members of his family have suffered injustice. He has continuously attempted to point the finger of blame against others for losses he claims to have suffered. The Council is but the last organisation he now seeks to hold responsible. He is unable to come to terms with the fact that no proper claim against the Council has ever been formulated, despite numerous attempts in the past.
I am satisfied that the Council is an interested party and entitled to bring the application. I am satisfied that Mr Jones and the other proposed plaintiffs have persistently brought proceedings in respect of the same subject matter over many years, and that they have failed to formulate a valid claim, despite being given numerous opportunities to do so. Mr Jones continuously has made allegations against different parties, and now the Council and, in any case, has been unable to justify the allegation. He institutes proceedings, makes numerous applications, presents the Court with large volumes of paper, most of which is irrelevant and much of which is incomprehensible. He has exhausted all avenues of appeal, but continues to assert that he will issue further proceedings.
I am satisfied that the requirements of s 39 have been satisfied.
Accordingly, I order that Westwill, William Paul Jones, Telefind, Eva, Nathan Arch Jones, the Paul Jones Family Trust, William Archibald Jones, and May Isabel Jones are hereby prohibited from instituting in their name, or causing others to institute, or being concerned with, directly or indirectly in the institution of any proceedings in any court of the State of South Australia against The Barossa District Council without leave of this Court.
I order that:
1.Pursuant to r 290(1)(h) of the Supreme Court Rules 2006, the appeal is dismissed.
2.Westwill, William Paul Jones, Telefind, Eva, Nathan Arch Jones, the Paul Jones Family Trust, William Archibald Jones, and May Isabel Jones be prohibited from issuing further proceedings in the District Court of South Australia or the Supreme Court of South Australia against the Barossa District Council, or any officer of the Barossa District Council, or employee or former employee, without permission of this Court.