Westwill v Heath
[2014] SASC 150
•9 October 2014
SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
WESTWILL & ANOR v HEATH & ANOR
[2014] SASC 150
Reasons for Decision of The Honourable Justice Nicholson
9 October 2014
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
Referral from Registrar for direction pursuant to r 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 - whether the document, on its face, is an abuse of process.
Held: Proposed notice of appeal an abuse of process; Registrar to reject it for filing.
Supreme Court Civil Rules 2006 (SA) r53, referred to.
Westwill Pty Ltd v Heath (1989) 52 SASR 461; Westwill v Heath [2010] SASC 358; Westwill v Norman Waterhouse [2009] SASC 391; Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev [2011] SASC 127; Staats v United States of America (1992) 66 ALJR 793; Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99; Re Davison (1997) 147 ALR 259; Manolakis v District Registrar (SA) (2008) 170 FCR 426; Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89; Eastman v Higgins (2007) 210 FLR 464; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193; Ramsey v Skyring (1999) 164 ALR 378, considered.
WESTWILL & ANOR v HEATH & ANOR
[2014] SASC 150Civil
NICHOLSON J.
Introduction
William Paul Jones has sought to file a notice of appeal to the Full Court which lists Westwill Pty Ltd (Westwill) and Mr Jones himself as appellants and a Mr Heath and the Barossa District Council as respondents. Mr Jones and Westwill (which I understand is controlled by Mr Jones) are seeking to appeal against the judgment of Duggan J in Westwill Pty Ltd v Heath.[1] Since that decision almost 25 years ago, Mr Jones has been the driving force behind numerous pieces of litigation which has centred around him trying to establish that Duggan J was incorrect. Mr Heath has now died.
[1] (1989) 52 SASR 461.
In June of 2010 an earlier purported notice of appeal was filed in this Court. The matter came before Gray J[2] and he refused an application for permission to appeal and for an extension of time within which to appeal. Gray J also made an order restraining Mr Jones from making any further application or seeking to issue any other proceedings arising in any way or relating to the decision of Duggan J in Westwill Pty Ltd v Heath without the permission of the Court. Gray J made it plain that this did not mean that Mr Jones could not air a proper complaint; he would be entitled to do so through the issue of proceedings authorised by the Court. In addition, on 17 December 2009 in the context of other proceedings involving Mr Jones, Sulan J ordered that:
Westwill, William Paul Jones, [and various other entities and persons] 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.[3]
[2] Westwill v Heath [2010] SASC 358.
[3] Westwill v Norman Waterhouse [2009] SASC 391 (my emphasis).
In the document headed notice of appeal to the Supreme Court that Mr Jones now wishes to file the putative appellants also wish to appeal against the whole of the decision of Justice Gray. Mr Jones requires permission in accordance with Gray J’s order because he wishes to appeal against Duggan J’s judgment and both he and Westwill require permission in accordance with Sulan J’s order because the proposed appeal would have the Barossa District Council as a respondent.
The Registrar has referred to me the proposed notice of appeal for determinations whether:
(i)permission to appeal pursuant to Sulan J’s order is to be granted;
(ii)permission to appeal pursuant to Gray J’s order is to be granted; and
(iii)whether the document should be rejected for filing in any event pursuant to the power conferred under r53 of the Supreme Court Civil Rules 2006 (SA).
Rule 53 provides for a power to reject documents submitted for filing and the Registrar has asked whether I am prepared to direct that Mr Jones and Westwill’s proposed notice of appeal be rejected on the basis that it is, inter alia, an abuse of the processes of the Court.
The principles relevant to r53 have been helpfully summarised by Gray J in a recent decision of this court.[4] I, with respect, adopt that summary of principles as sufficient for present purposes.
[4] Rana v Housing Trust of South Australia; Rana v Gregurev; Rana v Gregurev [2011] SASC 127 (Gray J).
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.
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.[5] The rule has been held to apply to documents that are incoherent such that parties could not know the case being made against them.[6] Under a Federal Court rule in comparable terms, the actual rejection of the document by the Registrar is not subject to judicial review.[7] The direction made under rule 53(4), is an administrative act not subject to appeal.[8]
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. The terms “scandalous, frivolous or vexatious” in this context are to be given a wide meaning.[9] If the Registrar forms the opinion that the document is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
In Eastman v Higgins,[10] 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?[11]
I considered rule 53 in Westwill Pty Ltd & Ors v Byrt & Ors,[12] where I concluded:[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.[14] While a court is occupied dealing with matters devoid of merit, meritorious claims are left wanting access to the courts.[15] On the other hand, a fundamental rule of law is that all persons have access to courts.[16] 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.[17] It is however a power which should be exercised with care.
[5] Staats v United States of America (1992) 66 ALJR 793; see further my [Gray J’s] treatment of this rule in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.
[6] Re Davison (1997) 147 ALR 259.
[7] Manolakis v District Registrar (SA) (2008) 170 FCR 426.
[8] Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 89, [32]-[33].
[9] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [5].
[10] Eastman v Higgins (2007) 210 FLR 464.
[11] As set out by me in Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [7].
[12] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99.
[13] Westwill Pty Ltd & Ors v Byrt & Ors [2010] SASC 99, [13].
[14] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88, 93 considered in Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [31].
[15] Manolakis v Director of Public Prosecutions (Cth) & Ors [2009] SASC 193, [32].
[16] See Ramsey v Skyring (1999) 164 ALR 378.
[17] Staats v United States of America (1992) 66 ALJR 793 where Deane J was considering a Rule in the High Court Rules comparable [in] terms to rule 53.
The terms of the proposed notice of appeal
The proposed notice of appeal consists of 11 typed, single-spaced pages not including the cover sheet. It comprises a narrative discussion of complaints and assertions interspersed periodically with quotations from the Bible. The discussion is convoluted, lacks clarity and is very difficult to follow. Parts of it are quite incomprehensible. Those aspects of the document that might be regarded as purported grounds of appeal do not relate directly to the judgment of either Duggan J or Gray J. The document does not set out or identify those aspects of the respective judgments that are said to be in error or the basis why any aspect of each judgment is said to be in error. By and large the document seeks to reagitate matters apparently dealt with in earlier first instance litigation. Even so, it is quite incoherent.
In short, the proposed notice of appeal is not in the form and does not contain appropriate detail sufficient to allow a respondent to the appeal to appreciate the case it would be required to meet, that is, why either the judgment of Duggan J or the judgment of Gray J can be said to be in error and should be set aside. The document does not set out findings or aspects of the reasoning in either judgment which are said to involve error. Nor does it identify the basis of any asserted error. Any appeal based on a notice of appeal in the form of the present would be doomed to fail.
For these reasons, the proposed notice of appeal, on its face, contains matter that is frivolous or vexatious and, if filed, would be an abuse of the processes of the Court. I direct the Registrar to reject the document. It also follows that, pursuant to the order of Sulan J and pursuant to the order of Gray J, I would and do refuse permission to file the notice of appeal. I direct that a copy of these reasons be sent to Mr Jones.
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