Westwill v Heath

Case [2010] SASC 358

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]…

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AGLC
Westwill v Heath [2010] SASC 358
Case
[2010] SASC 358
Decision Date

CaseChat Overview and Summary

Westwill Pty Ltd, the applicant and appellant, sought leave to appeal a 1989 decision in Westwill Pty Ltd v Heath. The 1989 case involved a dispute over a contract for the sale of property owned by George Alexander Heath, who has since passed away. Westwill sought to enforce the contract, but the Judge set it aside due to unfair and unconscionable conduct by Westwill’s representative, William Paul Jones, which put Heath at an unfair disadvantage. Westwill's recent application to appeal the 1989 decision was filed more than 20 years late and contained documents that did not comply with court procedures. The Registrar sought directions from the Court to reject these documents.

The primary legal issue was whether the Court should grant an extension of time for filing the appeal, considering the substantial delay and the lack of a proper explanation for it. Another issue was whether the Court should exercise its inherent jurisdiction to control the bringing of applications and prevent abuse of court processes. This included considering whether to reject the proposed documents filed by Westwill and restrain Mr Jones from making further applications without the Court's permission.

The Court held that the delay of more than 20 years in lodging the appeal was not adequately explained, and therefore the application for an extension of time should be refused. The Court also found that the documents proposed by Westwill should be rejected as they were an abuse of court processes. The Court exercised its inherent jurisdiction to prevent the appellant from abusing the processes of the Court. It directed the Registrar to reject the proposed documents for filing and restrained Mr Jones from making further applications or taking any steps in relation to the 1989 decision without the Court’s permission. The Court emphasized that Mr Jones could still articulate his complaint through proceedings authorized by the Court, but he must do so with the Court's permission.

The Court issued an order restraining Mr Jones from making further applications or taking steps relating to the 1989 decision without permission. Any application for permission had to be made in writing and dealt with by a Master or the Registrar on the papers alone. The order also required any appeal against decisions of the Masters or the Registrar to be made with the permission of another Master or a Judge. Any application for such permission had to be made in writing and posted to the Registry of the Court.

Orders

Orders of the court

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Background

Background to the litigation

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. …

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
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 AUSTRALIAIN THE MATTER OF A PROPOSED APPEAL BETWEEN WESTWILL PTY LTD andGEORGE ALEXANDER HEATH ORDER WITH INJUNCTIONThe RegistrarSupreme Court of South Australia1 Gouger StreetADELAIDE 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 personTHE 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 2010without 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 toThe RegistrarSupreme Court of South Australia1 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 COURTREGISTRAR

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

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