Westwill Pty Ltd v The Barossa Council - [2016] SASC 189

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WESTWILL PTY LTD & ANOR v THE BAROSSA COUNCIL
[2016] SASC 189
Reasons for Decision of The Honourable Justice Hinton
13 December 2016
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
Referral from Registrar for direction pursuant to Rule 53 of the Supreme Court Civil Rules 2006 (SA) that he reject and refuse the filing of a proposed notice of appeal to the Full Court by an unsuccessful appellant to a single judge of this Court.
Held:
1. The proposed notice of appeal is an abuse of process.
2. Registrar directed to reject it for filing.
Supreme Court Civil Rules 2006 (SA) r 53, referred to.
Westwill v Norman Waterhouse [2009] SASC 391; Westwill Pty Ltd v Heath (1989) 52 SASR 461; Westwill v Heath [2010] SASC 358; Westwill Pty Ltd v Byrt [2010] SASC 99; Staats v United States of America (1992) 66 ALJR 793; Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38; R v Burns (1883) 9 VLR 191; Williams v Spautz (1992) 174 CLR 509, considered.

WESTWILL PTY LTD & ANOR v THE BAROSSA COUNCIL
[2016] SASC 189
Civil
Hinton J
Introduction

A document entitled, “Permission to Appeal” dated 4 November 2016 was received by the registry of this Court in November of this year from Mr W P Jones. Subsequently, on 18 November 2016 Mr Jones attempted to file a second document (the document) also entitled, “Permission to Appeal”, in substitution for the first.
The document purports to seek permission to appeal against orders made by Sulan J on 17 December 2009 in the matter of Westwill Pty Ltd & Ors v Norman Waterhouse Pty Ltd & Anor.[1]
[1] [2009] SASC 391.
The Registrar has formed the view that the purported application for permission to appeal constitutes an abuse of the process of this Court within the meaning of Rule 53 of the Supreme Court Rules 2006 (SA). In accordance with the terms of that rule he has referred the matter to a judge for consideration as to whether the document should be rejected.[2]
[2] Supreme Court Rules 2006 (SA) r 53(3).
The proceedings before Sulan J
The history of this matter commences with the judgment of Duggan J in Westwill Pty Ltd v Heath in 1989.[3] In that case Westwill sought to enforce a contract for the sale of property owned by a Mr Heath. 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, Mr Jones, had taken unconscionable advantage of Mr Heath.
[3] Westwill Pty Ltd v Heath (1989) 52 SASR 461.
Since 1989 Mr Jones has instituted proceedings and taken out numerous applications in the District Court and in this Court related in one way or another to the 1989 judgment.[4]
[4] See Westwill Pty Ltd & Ors v Norman Waterhouse Pty Ltd &Anor [2009] SASC 391 at [19]-[28].
Two actions in particular, both instituted in the District Court, have occupied a great deal of judicial time in that court – Action Nos. 1207 of 2002 and 1347 of 2002. The procedural and decisional history in each action is set out at length by Sulan J. I do not repeat it.
Action No. 1207 of 2002 was the substantive action subject of the proceeding before Sulan J. That proceeding was an appeal against an order made by a judge of the District Court who had dismissed an appeal from a decision of a Master of the District Court refusing to join Telefind Pty Ltd, Eva Developments Pty Ltd, William Paul Jones, Nathan Arch Jones, the Paul Jones Family Trust, William Archibald Jones and Mary Isabel Jones, which Sulan J collectively referred to as the Jones interests, as plaintiffs, and the Barossa Council as a defendant in Action No. 1207 of 2002. The Master had determined that there was no proper basis for the application. It was, as I have said, upheld on appeal. Sulan J held:[5]
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.
[5] Westwill Pty Ltd & Ors v Norman Waterhouse Pty Ltd &Anor [2009] SASC 391 at [11]-[15].
In the same proceedings the respondent council applied for an order under s 39 of the Supreme Court Act 1935 (SA) that Westwill, Mr Jones, Telefind, Eva, Nathan Arch Jones, the Paul Jones Family Trust, William Archibald Jones, and May Isabel Jones (together referred to as “the proposed plaintiffs”), be prohibited from instituting further proceedings in relation to Action No. 1207 of 2002 and Action No. 1347 of 2002. Sulan J held:[6]
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.
[6] Westwill Pty Ltd & Ors v Norman Waterhouse Pty Ltd &Anor [2009] SASC 391 at [48]-[51].
The Court Record shows the formal orders made by Sulan J on 17 December 2009 to be as follows:
I order that:
1.Pursuant to r 290(1)(h) of the Supreme Court Rules 2006, the appeal is summarily dismissed.
2.Westwill Pty Ltd, William Paul Jones, Telefind, Eva Developments Pty Ltd, 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.
The second of the orders made on 17 December 2009 cannot operate to condition an application for permission to appeal against that order itself, nor order one. In any event, the document purports to seek permission as required by order two.[7]
[7] A similar order was made by Gray J on 24 December 2010; see Westwill v Heath [2010] SASC 358. As this is an application for permission, it is unnecessary to consider whether this order is of application.
Rule 53 of the Supreme Court Civil Rules 2006 (SA)
Under Rule 53(1) and 53(2), if it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court in that the document contains matter that is scandalous, frivolous or vexatious, the Registrar must refer the matter to a Judge or Master. Rule 53(3) provides:
If the Judge or Master so directs, the Registrar will reject the document.
Thus, if the Registrar considers that a document submitted for filing appears to contain material, the receipt of which would amount to an abuse of the Court’s process in the relevant sense, he or she must refer the document to a Judge or Master of the Court. No referral is required if the Registrar does not form the requisite opinion.[8] If a referral is made, it is for the Master or Judge to determine whether the document does in fact amount to an abuse of the Court’s process. If it does, the document will be rejected under Rule 53(3).
[8] Westwill v Byrt [2010] SASC 99 at [6] (Gray J).
The rejection of a document under Rule 53(3) has the consequence that proceedings are not instituted. That is, the Court’s jurisdiction and concomitant duty to determine the controversy subject of the proceedings is not enlivened.
In Staats v United States of America Deane J set out the principles to be applied under Order 58, Rule 4 of the High Court Rules. Order 58, Rule 4(3) was not materially different to Rule 53(3).[9] Deane J said:[10]
The rule of law which permeates our system of government requires that all persons have access to the courts of the land…
Nonetheless, considerations of justice, the interests of plaintiffs themselves and the public interest combine to require that there be procedures for insuring that a court can prevent the institution or maintenance of frivolous or vexatious proceedings. The interests of justice demand that a defendant (and those who are alleged to have acted unlawfully on behalf of a defendant) be protected from the cost, time and personal stress involved in defending such proceedings. The experience of those involved in the administration of justice in this country is that a plaintiff who persists in bringing hopeless proceedings is commonly convinced of the righteousness of his or her cause and will suffer increased stress, damage to health and, commonly, financial ruin if proceedings which are clearly foredoomed to fail are not halted at the outset. The public interest demands that court time and facilities, particularly the very limited time and facilities of this Court, are not devoted to pointless and misconceived litigation to the detriment of genuine disputes.
[9] (1992) 66 ALJR 793.
[10] Staats v United States of America (1992) 66 ALJR 793 at 793.
In this Court in Westwill Pty Ltd v Byrt Gray J touched upon the question of when a document would amount to an abuse of process within the meaning of Rule 53.[11] He said:[12]
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.
[11] [2010] SASC 99.
[12] Westwill v Byrt [2010] SASC 99 at [5].
I agree. The rule is made in support of this Court’s inherent power to protect its processes. It is now well settled that a superior court has all control over its own processes, including an ability to prevent or protect itself from abuse or misuse of its processes.[13] In Assistant Commissioner Condon v Pompano Pty Ltd French CJ quoted with approval[14] the following passage from Jacob, “The Inherent Jurisdiction of the Court”:[15]
[T]he essential character of a superior court of law necessarily involves that it should be invested with a power to maintain its authority and to prevent its process being obstructed and abused. Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute.
[13] Assistant Commissioner Condon v Pompano Pty Ltd (2013) 252 CLR 38 at [43]-[44] (French CJ); R v Forbes; Ex parte Bevan (1972) 127 CLR 1 at 7 (Menzies J, Barwick CJ and Walsh and Stephen JJ agreeing).
[14] (2013) 252 CLR 38 at [41].
[15] Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23 at 27.
The inherent power of a superior court to combat abuse of its processes derives from its fundamental responsibility to administer justice. Given the end that the power serves, it necessarily extends to categories of cases where the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. As early as 1883, in R v Burns, Higinbotham J, with whom Stawell CJ and Holroyd J agreed, noted:[16]
… Every court of justice has an inherent power – a duty as well as a power – to take care that the machinery of justice is not abused in such a manner as to prevent justice being done, or allow a scandal to take place…
[16] (1883) 9 VLR 191 at 193.
The High Court has similarly acknowledged this “duty”, noting that “every court is ‘in duty bound to protect itself’ against an abuse of its process”.[17]
[17] Williams v Spautz (1992) 174 CLR 509 at 520 (Mason CJ, Dawson, Toohey and McHugh JJ).
Thus, whilst it is axiomatic that all members of the community have access to the courts, that right is not absolute.[18] This Court is clothed with all power necessary to ensure that it is able to fulfil its functions including the taking of appropriate steps to prevent the “persistent advancing of hopeless applications that are abusive and scurrilous and that unnecessarily take up the time of the court to the prejudice of the community in general, and other litigants in particular.”[19] As Deane J indicated, the effective administration of justice is undermined where individuals abuse the processes of the Court by diverting resources from meritorious actions to repeated hopeless applications, devoid of any merit, that do not comply with the rules, and result in the unnecessary incursion of time and expense and the occasioning of unnecessary anxiety. Having said that, sight can never be lost of the fact that it is fundamental to the rule of law that all members of the community have access to the courts. I refer again to Deane J in Staats v United States of America:[20]
One effect of that rule is to empower a Justice of the Court effectively to prevent the institution of proceedings which are vexatious in the sense that it can be seen that they cannot succeed. It is a power which must be exercised with great care and in only a clear case.
[18] Attorney-General v Ebert [2002] 2 All ER 789 at 798 in Westwill v Heath [2010] SASC 358 at [33].
[19] Westwill v Heath [2010] SASC 358 at [33] citing Wentworth v Graham (2003) 57 NSWLR 741 at 742 (Ipp JA and Brownie A-JA).
[20] (1992) 66 ALJR 793 at 793.
Care must be taken in the exercise of the power contained in Rule 53 and it may only be used in a clear case.
The content of the document
The document is ten pages long, including the front sheet. The respondent is identified as the Barossa Council. The notice of appeal seeks to join Ward and Partners as second respondents. The document is divided into five sections. Consistent with Form 52, the first section is headed, “The orders Complained Of”. No mention is made of either of the orders made by Sulan J on 17 December 2009. Rather, a series of factual assertions are made, each related to circumstances that occurred between 1984 and 1988 and, seemingly, related to the proposed development of which the Heath property, subject of the contract set aside by Duggan J, was to form part. The only reference made to Sulan J is as part of a pleading that in some way relief could be granted under the “British Fraud Act 2006” which his Honour failed to do.
The second section, again consistent with Form 52, is headed “Permission to Appeal.” In this section, invoking the State Constitution, Magna Carta and a Trade Practices Act, the document appears to complain of development related proceedings and decisions.
The third section titled, “Grounds of Appeal”, contains fourteen points that appear to build on those made as part of the second. There is a purported link between the complaints made and the decision of Duggan J, but it is by no means clear. In fact, nowhere does the document identify the development, related development applications or council decisions, and commercial transactions and judicial proceedings, that in combination make up the events subject of the complaints in a way that allows the reader to make some sense of what supposedly has occurred.
The fourth section, headed “Orders Sought”, outlines five points. None of the orders sought can be referred to the orders made by Sulan J in terms of providing relief from those orders. There is an obvious reason for this; the entire document does not engage with the orders made by Sulan J on the applications before him nor the reasons for those orders.

The final section titled “Extension of Time” contains sixteen points, none of which relate to the seeking of an extension of time.
Consideration
The document does not comply with Rule 282. It is largely unintelligible and cannot sensibly be related to the proceedings before Sulan J or the orders that Sulan J made. In its current form it calls for no response by the purported respondents. Were the matter permitted to proceed in its current form it is foredoomed to fail. On this basis alone the document constitutes an abuse of the Court’s process.
I am aware that Mr Jones is well known to the Court. The document appears to be yet another attempt by him to appear to address the outcome or consequences of the proceedings determined by Duggan J. Those many attempts come at a cost to the resources of this Court, not to mention the human cost to all concerned, including Mr Jones. I bear in mind the right of all members of the community to seek justice from the courts. Nonetheless, there is nothing in the document that allows me to conclude that it is a genuine appeal against the orders made by Sulan J on 17 December 2009 that is even remotely arguable.
In my view the document is vexatious in the sense explained by Deane J in Staats v United States of America.[21] It should be rejected.
[21] (1992) 66 ALJR 793.
Conclusion and orders
To accept the document and thereby permit the institution of proceedings in this Court would amount to an abuse of the processes of this Court. Accordingly, pursuant to Rule 53, I direct the Registrar to reject the document.