Westwill v Heath
[2010] SASC 358
•24 December 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
WESTWILL v HEATH
[2010] SASC 358
Judgment of The Honourable Justice Gray
24 December 2010
APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - POWERS OF COURT - OTHER MATTERS
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - IN GENERAL AND PRELIMINARY MATTERS
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - POWER TO CONTROL PROCEEDINGS - MISCELLANEOUS POWERS
Attempt to initiate appellate proceedings to the Full Court - application for an extension of time within which to appeal, and referrals from Registrar for directions - whether extension of time should be granted in circumstances where appeal filed more than 20 years out of time - consideration of scope of inherent jurisdiction of Court - appellant attempted to file several documents in Registry of Supreme Court - Registrar sought direction that he reject those documents as an abuse of Court process - whether documents should be rejected.
Held: applications refused - no proper explanation offered for the delay of more than 20 years in lodging the appeal - direct Registrar to reject proposed documents pursuant to Rule 53 of the Supreme Court Civil Rules 2006 (SA) - Court has inherent jurisdiction to control the bringing of applications to prevent party from abusing processes of the Court - appellant restrained from making any further application or seeking to issue any other proceedings arising in any way or relating to the decision the subject of the proposed notice of appeal without obtaining leave of the Court.
Probate Rules 2004 (SA) r 53; Supreme Court Act 1935 (SA) s 39, referred to.
Westwill Pty Ltd v Heath (1989) 52 SASR 461; Westwill Pty Ltd v Byrt [2010] SASC 99; Westwill Pty Ltd v Norman Waterhouse (Unreported, District Court of South Australia, Judge Sulio, 30 April 2008); Westwill Pty Ltd v Norman Waterhouse Pty Ltd [2009] SASC 391; Staats v United States of America (1992) 66 ALJR 793; Re Davison (1997) 147 ALR 259; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; Manolakis v Director of Public Prosecutions (Cth) [2009] SASC 193; Grepe v Loam (1887) 37 Ch D 168; Attorney-General v Ebert [2002] 2 All ER 789; Wentworth v Graham (2003) 57 NSWLR 741; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Jackamarra v Krakouer (1998) 195 CLR 516; Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] 2 WAR 196; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942; McKay v Alexandrina Council (2003) 227 LSJS 442; Hall v Burnside (2006) 102 SASR 298; R v Forbes; Ex Parte Bevan (1972) 127 CLR 1; Conde v Gilfoyle [2010] QCA 109; Hambleton v Labaj [2010] QSC 124; McGuirk v University of New South Wales [2010] NSWCA 104; Kinnaird v Field [1905] 2 Ch D 306; Ebert v Venvil [2000] Ch 484; Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Hunter v Leahy (1999) 91 FCR 214; von Risefer v Permanent Trustee Company Ltd [2005] 1 Qd R 681; Tringali v Stewardson Stubbs & Collett Pty Ltd (1966) 1 NSWR 354; Cox v Journeaux (No 2) (1935) 52 CLR 713; Attorney-General v Wentworth (1988) 14 NSWLR 481, considered.
WESTWILL v HEATH
[2010] SASC 358CIVIL
GRAY J.
Introduction
This is an application for leave to initiate appellate proceedings and for an extension of time within which to appeal. There also have been several referrals by the Registrar of this Court; namely, for directions to reject documents for filing[1] and for a Grepe v Loam[2] order.
[1] Pursuant to Rule 53 of the Probate Rules 2004 (SA).
[2] Taken from the name of the decision in Grepe v Loam (1887) 37 Ch D 168.
Background
Westwill Pty Ltd, the applicant and appellant, has purported to appeal from a decision of a Judge of this Court in 1989 in Westwill Pty Ltd v Heath.[3] That decision concerned a dispute over a contract for the sale of property owned by the defendant in that proceeding. Westwill sought to enforce the contract. The Judge set aside the contract on the basis that Westwill’s representative, William Paul 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 that decision, over 20 years ago, Mr Jones has been the driving force behind litigation which has centred around him trying to establish that the trial Judge was wrong.[4] Mr Heath has now died.
[3] Westwill Pty Ltd v Heath (1989) 52 SASR 461.
[4] Westwill Pty Ltd v Byrt [2010] SASC 99; see comments in Westwill Pty Ltd v Norman Waterhouse (Unreported, District Court of South Australia, Judge Sulio, 30 April 2008) at 3-4; see also Westwill Pty Ltd v Norman Waterhouse Pty Ltd [2009] SASC 391.
In a recent decision concerning a related matter involving Mr Jones, in the course of giving directions to the Registrar to reject documents for filing, I observed:[5]
A review of the material discloses that the history of these proceedings, … 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.
[5] Westwill Pty Ltd v Byrt [2010] SASC 99 at [9].
Notwithstanding the above, Westwill, through Mr Jones, has placed before this Court a purported notice of appeal and relevant accompanying documents that do not comply with court procedure and seek to reventilate arguments the subject of litigation more than 20 years ago. In reaching my decision to refuse the orders sought I have had regard, as best as I can understand it, to the material put forward by Westwill.
Application to Initiate Appellate Proceedings and Associated Applications
A purported notice of appeal was filed in this Court on 9 June 2010. Westwill claims that the findings of the Judge in 1989 were against the weight of the evidence, and that the Judge erred in law and in equity in setting aside the contract. To support this claim, Westwill seeks to tender new evidence; however, from the rambling and lengthy notice of appeal and the oral submissions of Mr Jones of a same character, it is not easily discernable what precisely it is that he seeks to agitate or tender. There is a substantial body of correspondence annexed to the supporting affidavits and the purported notice of appeal, which post-dates delivery of judgment in Westwill Pty Ltd v Heath in 1989. It is difficult if not impossible to decipher the complaints made in the purported notice of appeal or to understand the reasons, if any, put forward by Westwill for the 20 year delay in lodging the appeal. One example of the grounds put forward by Westwill is in the following terms:
The appellants complied with the requirements of the council to get a planning consent and based on what the council wanted as a concept plan. Obedience to what the council wanted does not mean that you lose every thing. Money land and rights to a fair court case. If the council in there [sic] policy decisions in not applying the laws of the land have caused there [sic] community losses then they are responsible for there [sic] actions. …
In the notice of appeal, with respect to what appears to be an application for an extension of time within which to appeal, Westwill claims the following:
1. Based on exceptional circumstances extension of time is allowed based on fraud.
2.There has been a total loss of rights based on a decision of the Supreme court by Judge Sulan 17/12/2009 with the Appellants.
3.Based on new evidence and new material facts refer case Dickin Vs BHP Billition [sic] a matter can be heard. Also Nathan Jones Vs D.J.Griggs a matter can be heard based on extensions of time.
4.The new material fact that the concept plan that was copied was signed into law three months by the Governor, after the councils engineers had refused its development as part of Judge Duggan’s decision and valuation decision.
5.By the negligent creation of a false report and the planning rules being broken by the Council, with its only requirement being what the town Planner wanted, members of our community that includes both Defendant and Appellant have lost, the valuations would have been the same.
6.Commissioner Tomkinson and his orders in case PAT144 of 1988 have been broken based on development laws, Zoning laws, and the Real property act and there are no time limits on contempt of court.
7.The Governor has signed into law a concept plan that was copied but could never happen as no engineer would grant consents.
8.The courts have to protect its citizens who obey the laws and rules and do not pay bribes. There are international obligations with bribery.
As can be seen from the paragraphs set out immediately above, apart from colourful allegations regarding loss of rights, contempt of court and bribery, the basis put forward by Westwill in support of an extension of time appears to assert that a new material fact has been discovered; namely, that “the concept plan that was copied was signed into law three months by the Governor, after the councils engineers had refused its development as part of Judge Duggan’s decision and valuation decision.” Earlier in the document, in support of the appeal, reference is made to the “new material fact” in the following way:
The concept plan did not comply also with the Planning Act 1982-1993 Part 4 section 16 part 2 all items and was not passed by the council as being part of the proposed development [a new material fact] so as to comply with the real property act. The town planner gave his instructions for its creation. [It was what he wanted]
There was no engineers report to certify the valuation of Mr Heath as to it possible development, as required under Law as quoted above. The concept plan then had no legal status but only the figment of someone’s imagination.
[brackets and text in brackets appears in original]
I am not sure what that means. I consider it to be unintelligible.
Finality of Litigation
Before returning to the within applications, it is appropriate to refer to some relevant principles to be borne in mind in proceedings such as the present, particularly in view of the significant period of time that has elapsed since the decision sought to be appealed from was made.
In Commonwealth Bank of Australia v Quade,[6] the members of the High Court observed:
In McCann v Parsons, the case immediately preceding Greater Wollongong Corporation v Cowan in the Commonwealth Law Reports, Dixon CJ, Fullagar, Kitto and Taylor JJ pointed out that the various grounds upon which an appellate court proceeds in granting the remedy of a new trial "have been settled by practice but ... have never become completely stereotyped; they have always possessed some flexibility and have been governed by the overriding purpose of reconciling the demands of justice with the policy in the public interest of bringing suits to a final end". In cases where all that is involved is the discovery by the unsuccessful party of fresh evidence, Orr v Holmes and Greater Wollongong Corporation v Cowan establish that the reconciliation of "the demands of justice" and the "policy" that there be an end to litigation at least prima facie (or "generally") dictate that the successful party should be deprived of the verdict in his favour only if the unsuccessful party persuades the appellate court that there was no lack of reasonable diligence on his part and that it is reasonably clear that the fresh evidence would have produced an opposite verdict. Such a stringent rule in that ordinary class of case is supported by considerations of both justice and public interest. Considerations of justice support it in that it would be unfair to the successful party if he were to be deprived of a verdict obtained after a trial on the merits and be subjected to the expense, inconvenience and uncertainty of a further trial merely because some relevant evidence had, without fault on his part, been unavailable to the unsuccessful party at the time of the trial. Considerations of public interest support it in that it is desirable in the public interest that there be finality in litigation in other than the truly exceptional case. If all that was necessary to procure the setting aside of a regularly obtained verdict was that the unsuccessful party show that fresh evidence which might have affected the outcome of the trial has become available after the trial, the verdicts of the courts would be of a provisional character only, being subject to the discovery of further relevant evidence.
[Footnotes omitted]
[6] Commonwealth Bank of Australia v Quade (1991) 178 CLR 134 at 141-142 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ).
Gleeson CJ, Gummow, Hayne and Heydon JJ in D’Orta-Ekenaike v Victoria Legal Aid,[7] said the following about finality in the context of reopening controversies, once quelled:
A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined, circumstances. That tenet finds reflection in the restriction upon the reopening of final orders after entry and in the rules concerning the bringing of an action to set aside a final judgment on the ground that it was procured by fraud. The tenet also finds reflection in the doctrines of res judicata and issue estoppel. 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. It is a tenet that underpins the extension of principles of preclusion to some circumstances where the issues raised in the later proceeding could have been raised in an earlier proceeding.
[Footnotes omitted]
[7] D’Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 at 17.
As demonstrated by the above remarks, there is a public interest in ensuring the finality of litigation. The concept of finality is multifaceted, and there are competing considerations to be weighed. However, the risk that the verdicts of courts would become of a provisional character only if treated as subject to the discovery of further evidence that might have affected the outcome, is grave. In the presence of a regularly obtained verdict, discovery of further evidence, especially after the elapse of many years, could only disturb the verdict in the truly exceptional case.
The considerations and principles arising from the above authorities inform the approach to be taken in a case such as the one presently before me.
The Merits
On 20 December 1989 following a trial in the action Westwill Pty Ltd v Heath,[8] judgment dismissing Westwill’s claim was delivered. In refusing relief the trial Judge rejected the evidence of Mr Jones. The Judge further found that Mr Jones had taken unfair advantage of Mr Heath, who was elderly, in ill health, lacked experience and was without independent advice. In particular, the Judge found:
Was the plaintiff, through its agent, aware of this disadvantage and was unfair advantage taken of the defendant as a result? Mr Jones had visited the defendant on approximately five occasions prior to 22 March in order to discuss the sale of part of the defendant's land. He had not told the defendant that he was associated with a company involved in land development. He knew the defendant was an elderly man and it must have been obvious to Mr Jones that he had some medical problems. He arrived at the defendant's property without warning on 22 March and arranged a visit to Mr Rothe's office. Of cardinal importance is the fact that although he was aware that the defendant was contemplating seeking advice from a solicitor, he discouraged him from doing so on the basis that the transaction would be straightforward. When the transaction became more complicated in Mr Rothe's office he did not revise his advice to the defendant that a solicitor would not be necessary. Mr Jones had been actively involved in subdividing land close to the defendant's property and he would have been well aware of the value to his company of the subject land. In my view he was aware of the fact that the purchase price was well below the value of the land. The defendant's naivety in providing the plaintiff company with finance on particularly favourable terms must have been obvious to him. The problems caused by the lack of a survey of the land prior to sale were also obvious. I find that Mr Jones, acting as the plaintiff's agent, was aware of the defendant's position of disadvantage; that he actively discouraged the defendant from taking steps to overcome his difficulties by obtaining assistance from Mr Teusner; and that in entering into the transaction with the defendant he took an unfair advantage of the defendant's position.
[8] Westwill Pty Ltd v Heath (1989) 52 SASR 461 at 477.
In 1990 an appeal from the 1989 decision of the trial Judge was instituted by Westwill. It was struck out for want of prosecution. Obviously, a decision cannot be appealed from twice. In the absence of an application for a strike out from a party, the appeal simply “lapses”. Notwithstanding the barrier presented by the previous appeal, in the circumstances, as there has been no application by any party to strike out the current notice, although it may not be necessary for me to do so, I consider it appropriate to address the merits of this application.
The history of Mr Jones’ attempts to re-litigate matters arising from the dispute the subject of the 1989 trial, has been dealt with by this Court before, and was relevantly outlined by Sulan J in Westwill Pty Ltd v Norman Waterhouse Pty Ltd.[9] The material now put before me by Mr Jones appears to allege, amongst numerous complaints, that the Barossa council and the relevant town planner produced a development report which included uncertified concept plans.
[9] Westwill Pty Ltd v Norman Waterhouse Pty Ltd [2009] SASC 391 at [2]-[5] where Sulan J said:
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.
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.
Although not amounting to exhaustive factors for consideration,[10] there are generally four factors to be weighed by the Court when considering an application for an extension of time:[11] the length of the delay; the reason for the delay; whether the applicant has prospects of success; and, the extent of any prejudice suffered by the respondent to the application.
[10] Jackamarra v Krakouer (1998) 195 CLR 516 at [66] where Kirby J said:
I do not doubt that the four considerations mentioned in Esther Investments are relevant. But they are by no means exhaustive. Several others have from time to time been thought relevant. These include whether the delay was intentional or contumelious; or merely the result of a bona fide mistake or blunder; and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled. It may also be relevant, where the default is that of a party’s legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant.
[11] See Esther Investments Pty Ltd v Markalinga Pty Ltd [1989] 2 WAR 196 at 198; Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942 at 946; Jackamarra v Krakouer (1998) 195 CLR 516 at [6]-[8] (Brennan CJ and McHugh J), [66] (Kirby J); McKay v Alexandrina Council (2003) 227 LSJS 442 at [8] (Debelle J); see Hall v Burnside (2006) 102 SASR 298 at 312 (Gray J). As set out in Ferdinands v District Court of South Australia [2010] SASC 265.
To describe the delay in the present proceeding as gross or inordinate is an understatement. In fact, it is difficult to imagine circumstances which could provide an acceptable explanation for the delay of the magnitude that has occurred in this case. I do not accept that the unearthing and the provision of the various documents annexed to the material filed by Westwill, provides any explanation for the delay in the present proceeding. I do not consider that Westwill has prospects of success. I should also mention that Mr Heath is no longer alive. An appeal in this matter would require the joining of his estate as respondent. In the circumstances, the prejudice to be occasioned would be overwhelming.
The applications for permission to appeal and for an extension of time within which to appeal are refused.
The Rule 53 Applications
The Registrar has referred to me, under rule 53 of the Supreme Court Civil Rules 2006 (SA), various documents that Mr Jones seeks to file, seeking a direction that the Registrar reject those documents for filing.
Mr Jones has been a litigant now for many years.[12] He regularly offers voluminous documents for filing in which he purports to act for other individuals and companies and for a trust. Mr Jones is not a legal practitioner. As earlier mentioned, Mr Jones’ extensive dealings with the courts in this State have all in some way, or ill defined way, concerned issues decided by Duggan J in Westwill Pty Ltd v Heath in 1989.
[12] See for example Westwill Pty Ltd v Byrt [2009] SADC 95; Westwill Pty Ltd v Norman Waterhouse Pty Ltd [2009] SASC 391; Westwill Pty Ltd v District Council of Barossa (Unreported, District Court of South Australia, Master Rice, 5 March 2009); Westwill Pty Ltd v Norman Waterhouse (Unreported, District Court of South Australia, Judge Soulio, 30 April 2008); Westwill Pty Ltd v Norman Waterhouse (Unreported, District Court of South Australia, Master Rice, 20 May 2008); Westwill Pty Ltd v Norman Waterhouse (Unreported, District Court of South Australia, Master Rice, 14 March 2008); Westwill Pty Ltd v Heath (1989) 52 SASR 461.
Earlier this year, I dealt with an attempt by Mr Jones to lodge documents.[13] Since that decision, Mr Jones has sought to lodge a number of further documents. It is those documents which form the subject of the current referrals.
[13] Westwill Pty Ltd v Byrt [2010] SASC 99.
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.[14] The Rule has been held to apply to documents that are incoherent such that parties could not know the case being made against them.[15] In Westwill Pty Ltd v Byrt, I summarised the operation of Rule 53 as follows:[16]
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.
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.
[14] Staats v United States of America (1992) 66 ALJR 793.
[15] Re Davison (1997) 147 ALR 259. See also the analysis of Rule 53 in Westwill Pty Ltd v Byrt [2010] SASC 99.
[16] Westwill Pty Ltd v Byrt [2010] SASC 99 at [5]-[6].
There are five separate documents which have been referred to me by the Registrar, which documents Mr Jones has sought to lodge for filing over the past few months. I will address each of those briefly.
·‘1169 of 2009: Notice of Appeal to the Full Court’. This appears[17] to be an attempt to appeal from the decision of Sulan J. The proposed notice of appeal manifestly fails to comply with the relevant Rules of Court, and does not at all address the decision of Sulan J. It also attempts to include a notice of appeal from the 1989 decision of Duggan J.
·‘1534 of 1995: Notice Of Appeal’. This document is an attempt to appeal from a consent order made by a Master in 1997, and includes an application for an extension of time within which to apply for permission to appeal. This document also fails to comply with the relevant Rules of Court, makes wild allegations of fraud, and is entirely incomprehensible.
·‘Westwill v Byrt & others: Appeal to the Full Court’. This document purports to be an appeal to the Full Court. It further purports to be an appeal against a decision of Judge Chivell in the District Court, which decision was delivered in 2009 and was an appeal against an interlocutory decision of a District Court Master. If there is to be an appeal from Judge Chivell, it lies to a single Judge, not to the Full Court. The document, however, does not appear to address the decision of Judge Chivell. Further, it appears in substance to be the same notice of appeal that I directed the Registrar to reject earlier this year.[18]
·‘Affidavit in Support of Full Court Appeal’. This document was received by the Registry on 17 August 2010. It is not properly sworn. All of the factual material is hearsay. It is argumentative.
·‘1169 of 2009: Application for permission to appeal’. This is an application for permission to appeal against the decision of Sulan J. Again, the proposed appeal is considerably out of time. Mr Jones purports to act for corporations when he does not have permission to do so, and one of the appellants is not a legal entity. The content of the document does not disclose any intelligible grounds, and draws heavily on quotes from the Bible.
[17] “Appears”, as the date provided for the judgment is incorrect.
[18] Westwill Pty Ltd v Byrt [2010] SASC 99.
The thrust of all of these documents seems to be a claim that various decisions made adverse to Mr Jones and Westwill over the years ‘cannot be sustained based on other court cases decisions and new evidence of fraud.’ There is significant replication and repetition in the documents.
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.[19]
[19] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 93 considered in Manolakis v Director of Public Prosecutions (Cth) [2009] SASC 193 at [31]; as summarised in Westwill Pty Ltd v Byrt [2010] SASC 99 at [13].
None of the documents referred to above are in the proper form. They all seem to be addressing in some way the decision of Duggan J in 1989. Mr Jones has no authority to represent a number of the named appellants. As mentioned, the documents are rambling and incomprehensible, and do not disclose any intelligible grounds. The notices do not in any meaningful sense address the decisions sought to be appealed from. The documents appear, to the Registrar, to be rambling and incomprehensible and to constitute abuses of the process of the Court. I too am of the view that each document constitutes an abuse of the processes of the Court. Accordingly, I have no hesitation in directing that the Registrar reject each of the five named documents for filing.
The Court’s Inherent Jurisdiction to Protect its Processes From Abuse
As earlier mentioned, Mr Jones’ activities demand an inordinate amount of Court resources, including the time of Court and Registry staff, and Judges of the Court. A review of the history of Mr Jones’ experiences litigating the issues arising from the dispute the subject of the decision in 1989, discloses that he seems patently incapable of accepting rulings and decisions which displease him, and continues to attempt to reargue the rulings and decisions. There have been multiple attempts to re-litigate issues already disposed of.
In 2009, after multiple attempts over a long period to join the Barossa District Council to an action, a Judge of this Court made an order pursuant to section 39 of the Supreme Court Act 1935 (SA) that Westwill, Mr Jones and others, be prohibited from instituting further proceedings in relation to the subject matter of the action then before the Court, an action forming part of the barrage of litigation that has followed since the 1989 decision. In that decision, Sulan J concluded:[20]
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.
[20] Westwill Pty Ltd v Norman Waterhouse Pty Ltd [2009] SASC 391 at [48]-[50].
That order was limited to prohibiting proceedings being issued “against the Barossa District Council, or any officer of the Barossa District Council, or employee or former employee, without permission of this Court.” As such, that order provides no impediment to the bringing of the present applications, as the Barossa District Council is not a party. The Registrar has advised that it may be appropriate for the inherent jurisdiction of this Court to be exercised to restrain Mr Jones from issuing any further processes relating to the complaints the subject of the present purported notice of appeal.
Since I reserved my decision in this matter, Mr Jones has continued to send to the Court correspondence. Some letters have been directed to my chambers, others have been copies of letters sent to the Premier of South Australia, and the Australian Securities and Investment Commission. Mr Jones’ written dealings with the Court can be properly characterised as ranting and incomprehensible prose.
In Bhamjee v Forsdick (No 2), the following pertinent comments were made by Lord Phillips:[21]
[T]he courts are facing very serious contemporary problems created by the activities of litigants like Mr Bhamjee who are bombarding them with applications which have no merit at all. … It is also [the problem] that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all.
These comments have application in this Court, and Mr Jones in my view, falls into the category of litigants described in Bhamjee.
[21] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 90-91.
As a superior court of record, this Court is vested with the inherent jurisdiction described above. The Court’s jurisdiction and supervisory role include the regulation of the manner in which the Court’s processes may be utilised.[22] It is axiomatic that a fundamental concern is that citizens have access to the courts, but this right is not absolute.[23] There is a need for the Court to be able to take 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.”[24] Unrestrained conduct of a litigant such as that described has the ability to improperly hinder or interfere with other litigants’ access to the courts.
[22] The Court can protect itself from abuse of its processes by the use of the inherent jurisdiction: R v Forbes; Ex Parte Bevan (1972) 127 CLR 1 at 7 (Menzies J); see also Attorney-General v Ebert [2002] 2 All ER 789.
[23] Attorney-General v Ebert [2002] 2 All ER 789 at 798.
[24] Manolakis v Director of Public Prosecutions (Cth) [2009] SASC 193 at [10] citing Wentworth v Graham (2003) 57 NSWLR 741 at 742 (Ipp JA and Brownie A-JA).
A further, but slightly distinct consideration in this particular matter is the ongoing strain on the respondents to Mr Jones’ activities and attempts to persistently re-agitate complaints. In this respect the following comments, although in the context of the making of statutory orders, are relevant:[25]
Opponents of litigants who bring vexatious proceedings may also be put to considerable expense, including costs incurred in responding to appeals against vexatious proceeding orders. This may prove to be quite oppressive, especially because vexatious litigants are often unable to meet costs orders made against them, having squandered what assets they possessed in the pursuit of hopeless cases.
[25] Conde v Gilfoyle [2010] QCA 109 (Fraser JA with whom McMurdo P and Peter Lyons J agreed).
In Manolakis v Director of Public Prosecutions (Cth),[26] I had cause to consider the extent of the inherent jurisdiction of the Court to protect its processes from abuse.[27] That case concerned a litigant whose persistent attempts to file hopeless applications that contained scurrilous comments about public officers in addition to allegations of grave misconduct unsupported by any cogent material, had been rejected by the Registrar on a number of occasions at the direction of Judges of this Court. The litigant’s conduct was taking up a considerable amount of the Registrar’s time, that of Registry staff and that of Judges of the Court. In that case, without hesitation I directed the Registrar to again reject the notice of appeal that was then before me pursuant to rule 53 of the Supreme Court Civil Rules 2006 (SA). I then reviewed the relevant authorities on the scope of the inherent jurisdiction, and in particular, whether the jurisdiction is limited to the exercise of the power to prevent further applications within a proceeding on foot.
[26] Manolakis v Director of Public Prosecutions (Cth) [2009] SASC 193.
[27] See also recently consideration in Hambleton v Labaj [2010] QSC 124 (Applegarth J) at [12] and McGuirk v University of New South Wales [2010] NSWCA 104 (Sackville AJA, with whom Young JA agreed, Giles JA in dissent).
The origin of the jurisdiction to prevent further applications from being made in an action, is the Court’s inherent jurisdiction to protect processes from being abused and more broadly, the authority and the duty of the Court to administer justice according to law in an orderly and effective way.[28] As one commentator said:[29]
Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law.
[28] See discussion of the juridical basis of the inherent jurisdiction in I.H. Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23 at 27-28.
[29] See discussion of the juridical basis of the inherent jurisdiction in I.H. Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23 at 27-28.
In Manolakis I collected the relevant authorities. The starting point is a consideration of what has come to be referred to as a “Grepe v Loam order”.[30] I set out the salient features of such an order and the development of orders of that type:[31]
[30] Taken from the name of the decision in Grepe v Loam (1887) 37 Ch D 168.
[31] Manolakis v Director of Public Prosecutions (Cth) [2009] SASC 193 at [17]-[19].
The salient features of a traditional Grepe v Loam order include the following: - that it be made by a judge, that the order has the effect of restraining the litigant from making any further applications in the matter without the permission of the court, that if such an application were to be made it could be dismissed without being heard, and that the order could be appealed provided leave to do so was granted.
In relation to persistent and frivolous interlocutory proceedings, the Court in Kinnaird v Field[32] confirmed an order that was made in the exercise of inherent jurisdiction. The order was made in reliance on Grepe v Loam and read as follows:
This Court doth order that the defendant is not to be allowed without the leave of the judge in chambers to make any application under the summons for directions, or to issue any summons on matters of procedure, or to serve any notice of motion to discharge any order in chambers made on any such application as aforesaid, without such leave: And in case he shall, without such leave, serve notice of any such application or summons or notice of motion as aforesaid on the plaintiffs, they are not to attend unless the judge on the return thereof shall so direct; and, unless the judge shall think fit to give such directions, the application shall be dismissed without being heard…
In Bhamjee, the Court held that where a series of applications made by a plaintiff had been struck out on the basis that they were totally devoid of merit, on its own motion, the Court could make, and indeed should consider making, a Grepe v Loam order. It was observed that if the actions of the litigant are such as to be persistently disruptive and vexatious, an “extended” Grepe v Loam order could be given. The key additional feature[33] of such an order was that it extends beyond proceedings currently on foot, to the issuing of any new proceedings against the defendants or their representatives relating to a broad range of matters defined in the order summarised by the Court as follows:
This order, which should be made for a period not exceeding two years, will restrain the litigant from instituting proceedings or making applications in the courts identified in the order in or out of or concerning any matters involving or relating to or touching upon or leading to the proceedings in which it is made without the permission of a judge identified in the order. Any application for permission should be made on paper and will be dealt with on paper.
In summary, Bhamjee confirmed that a court can make an order to the effect that no further applications within an action on foot can be made without leave of the Court. The range of actions from which the litigant is to be restrained may be extended to embrace the institution of separate actions arising out of the same subject matter.
[Footnotes omitted]
[32] Kinnaird v Field [1905] 2 Ch D 306.
[33] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 96 relying on the comments of Lord Woolf MR in Ebert v Venvil [2000] Ch 484 at 496-497:
“We see no reason why, absent the intervention of a statute cutting down the jurisdiction, [the inherent] jurisdiction should apply only in relation to existing proceedings and not to vexatious proceedings which are manifestly threatened but not yet initiated … The court undoubtedly has the power to stay or strike out vexatious proceedings when they are commenced under its inherent power. We can see no reason in principle why it should not also, in accord with the general approach to the granting of quia timet injunctions, exercise that power to prevent the serious loss that anticipated but unidentified proceedings could cause the defendants to those proceedings.”
The High Court had occasion to consider these issues in Commonwealth Trading Bank v Inglis.[34] There the Court emphasised the distinction between the institution of new proceedings and those already before the court, holding that a court has no jurisdiction with respect to the former. The basis of this distinction can be found in the gravitas of regulating a litigant’s conduct within an action, compared with that of impeding a person’s access to the court. However, in both Attorney-General v Wentworth[35] and Hunter v Leahy,[36] it was said that the touchstone of the Court’s inherent power to protect its processes from abuse, must be substance and not form. It was for this reason that French J, as he then was, in the Federal Court in Hunter v Leahy,[37] considered that Commonwealth v Inglis did not prevent the Court from “restraining the institution of proceedings which, in effect, seek to re-litigate the substance of matters already determined in proceedings which have been disposed of in the Court.”[38] Naturally, this is a power to be exercised with caution.[39]
[34] Commonwealth Trading Bank v Inglis (1974) 131 CLR 311.
[35] Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492.
[36] Hunter v Leahy (1999) 91 FCR 214.
[37] Hunter v Leahy (1999) 91 FCR 214.
[38] Hunter v Leahy (1999) 91 FCR 214 at 221.
[39] See the comments in von Risefer v Permanent Trustee Company Ltd [2005] 1 Qd R 681 at 688 (Keane JA, McPherson JA.and Philippides J agreeing).
The circumstances which may demand the invocation of the inherent jurisdiction of this Court are broad,[40] and the guiding principle will always be to exercise it where the requirement of justice demands it.[41]
[40] When considering the inherent jurisdiction of the Court, legislation dealing with vexatious litigants, and in particular legislation concerning the Court’s powers to protect its processes from abuse, must be borne in mind. Such legislation can effect or limit the inherent jurisdiction. I consider that section 39 of the Supreme Court Act 1935 (SA) does not limit the inherent jurisdiction of the Court: see also Manolakis v Director of Public Prosecutions (Cth) [2009] SASC 193.
[41] See Tringali v Stewardson Stubbs & Collett Pty Ltd (1966) 1 NSWR 354 at 360-361 citing Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720.
Subsequent to reserving my decision in the application for permission to appeal, I formed the view that I may propose to make a Grepe v Loam type order. Accordingly, I heard submissions from Mr Jones at a later time on this topic. On that occasion, I explained to Mr Jones the manner in which such an order would operate. Mr Jones appeared to understand the effect of such an order, and submitted that it would be “going too far”.
For the reasons given, I consider that the circumstances of this case and the requirements of justice call for the exercise of the inherent jurisdiction of this Court. In reaching this conclusion I have also had regard to the need to avoid multiplicity of proceedings; a manifestation of abuse of court processes.
Conclusion
The applications for permission to appeal and for an extension of time within which to appeal are refused.
I direct the Registrar to reject for filing the following five documents: (1) ‘1169 of 2009: Notice of Appeal to the Full Court’; (2) ‘1534 of 1995: Notice Of Appeal’; (3) ‘Westwill v Byrt & others: Appeal to the Full Court’; (4) ‘Affidavit in Support of Full Court Appeal’; and, (5) ‘1169 of 2009: Application for permission to appeal’.
I propose to restrain 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,[42] without the permission of the Court. Mr Jones is to be restrained from making any further application or taking any steps, including the filing or issuing of any new proceedings in this Court, in or out of or concerning any matters involving or touching upon or otherwise relating to the complaints the subject of the purported notice of appeal, dated 9 June 2010, without the permission of the Court.
[42] Westwill Pty Ltd v Heath (1989) 52 SASR 461.
The order does not mean that Mr Jones cannot air a proper complaint. He will be able to do so through the issue of proceedings authorised by this Court. This may in fact assist Mr Jones in articulating his complaint. Rather than his documents being rejected by the Registry, Mr Jones’ dealings with the Court will be directly with an Officer of the Court. A copy of the order is attached as a schedule to this judgment.
IN THE SUPREME COURT OF SOUTH AUSTRALIA
IN THE MATTER OF A PROPOSED APPEAL
BETWEEN
WESTWILL PTY LTD
and
GEORGE ALEXANDER HEATH
ORDER WITH INJUNCTION
The Registrar
Supreme Court of South Australia
1 Gouger Street
ADELAIDE 5000Judicial Officer: The Honourable Justice Gray
Dates of hearing: 30 July 2010, 23 December 2010
Date of order: 24 December 2010
Appearances: Mr William Paul Jones in person
THE COURT ORDERS THAT:
1.William Paul Jones (“the applicant”) be restrained from
(a)making any further application or taking any steps (including for the avoidance of doubt the filing or issuing of any new proceedings in this Court) in or out of or concerning any matters involving or relating to or touching upon or otherwise relating to the decision of Duggan J of 20 December 1989 in Westwill Pty Ltd v Heath SCCIV-88-2343 and the complaints the subject of the proposed Notice of Appeal dated 9 June 2010; and
(b)attending at the Registry of this Court in respect of any matters involving or relating to or touching upon or otherwise relating to the complaints the subject of the proposed Notice of Appeal dated 9 June 2010
without the permission of this Court first being obtained.
2.Any application for the permission referred to in paragraph 1 of this Order shall:
(a)in the case of paragraph 1(a) be made in writing and shall be dealt with by a Master on the papers alone; and
(b)in the case of paragraph 1(b) be made in writing and shall be dealt with by the Registrar on the papers alone.
3.The applicant be restrained from appealing against:
(a)any decision of a Master under paragraph 2(a) of this Order without permission of another Master or a Judge, any application for such permission being made in writing and dealt with by that Master or Judge on the papers alone; and
(b)any decision of the Registrar under paragraph 2(b) of this Order without permission of a Master any application for such permission being made in writing and dealt with by that Master on the papers alone; and
(c)any decision of a Master or a Judge under paragraph 3(a) of this Order; and
(d)any decision of a Master under paragraph 3(b) of this Order.
4.Any application for any permission under this order shall be made in writing and be posted to the Registry of this Court by ordinary pre-paid post addressed to
The Registrar
Supreme Court of South Australia
1 Gouger Street
ADELAIDE 5000.
WARNING: IF YOU THE WITHIN NAMED WILLIAM PAUL JONES DO NOT COMPLY WITH THIS ORDER, YOU WILL BE LIABLE TO BE IMPRISONED OR OTHERWISE DEALT WITH FOR CONTEMPT OF COURT
REGISTRAR
4
24
1