Yap v Granich Partners

[2008] FCA 1380

FEDERAL COURT OF AUSTRALIA

Yap v Granich Partners [2008] FCA 1380

Federal Court Rules O 21 r 5

Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29
Granich & Associates v Yap [2004] FCA 1567
Yap v Granich & Associates [2005] FCA 309

CHENG SEE YAP v GRANICH PARTNERS

WAD 177 OF 2008

MCKERRACHER J
9 SEPTEMBER 2008
PERTH

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 177 OF 2008

BETWEEN:	CHENG SEE YAP Applicant
AND:	GRANICH PARTNERS Respondent

JUDGE:	MCKERRACHER J
DATE OF ORDER:	9 SEPTEMBER 2008
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1.The motion for leave be refused.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WAD 177 OF 2008

BETWEEN:	CHENG SEE YAP Applicant
AND:	GRANICH PARTNERS Respondent

JUDGE:	MCKERRACHER J
DATE:	9 SEPTEMBER 2008
PLACE:	PERTH

REASONS FOR JUDGMENT

1. The applicant, Mrs Yap has applied for leave to issue proceedings despite having been declared a vexatious litigant.  See Granich & Associates v Yap [2004] FCA 1567. In light of orders made in that decision, attendance by the respondent was unnecessary.

2. The relevant Rule of the Federal Court Rules is O 21 r 5.  In relation to this Kirby J has observed in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29, where his Honour refused an application for leave to commence further proceedings in the High Court of Australia. At 31–32 his Honour formulated as follows the principles to be applied:

   I approach the application by Mr Skyring for leave to proceed on the three proceedings … with the following considerations in mind:

   First, it is always important for every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented.

   Second, it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court's jurisdiction.

   Thirdly, the court must never shy away from the determination of a point sought to be argued simply because it may have major ramifications. …

   Fourthly, I do not pause to consider the appropriateness of the particular process that Mr Skyring has commenced, seeking relief by way of the writs of certiorari and mandamus. It is not necessary for me, in the decision which I have arrived…