Agapis v Plumbers Licensing Board

Vexatious proceedings 10 The term "vexatious proceeding" is defined in s 37AM(1) of the FCA Act to include: (a) a proceeding that is an abuse of the process of a court or tribunal; and (b) a proceeding instituted in a court or tribunal to harass or annoy, to cause delay or detriment, or for another wrongful purpose; and (c) a proceeding instituted or pursued in a court or tribunal without reasonable ground; and (d) a proceeding conducted in a court or tribunal in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose. 11 The respondent's affidavit deposes to a number of proceedings which have been instituted and conducted, or are currently being conducted, by the appellant: (a) following his criminal conviction in 2011 in respect of burglary, the appellant sought leave to appeal against his conviction and sentence in the Court of Appeal of the Supreme Court of Western Australia (CACR 148 of 2011 and CACR 149 of 2011); (b) on 15 June 2012, the appellant filed an application in the AAT for review of the respondent's decision to refuse to grant a plumbing contractor's licence under the Mutual Recognition Act 1992 (Cth); (c) on 17 August 2012, the appellant appealed an interlocutory order made in the AAT to this Court (WAD 198 of 2012); (d) on 17 April 2013, the appellant filed an appeal in this Court (WAD 111 of 2013) concerning the decision of the AAT; (e) following the conclusion of the proceeding mentioned at (a) above, the appellant filed an application for judicial review in the Supreme Court of Western Australia (CIV 2139 of 2013) in respect of the decision made in his criminal trial; (f) following the decision of McKechnie J in CIV 2139 of 2013 in the proceeding mentioned at (e) above, the appellant filed an appeal (CACV 105 of 2013) in the Supreme Court of Western Australia; (g) on 6 December 2013, the appellant filed a notice of appeal in this Court (WAD 460 of 2013) out of which arises the current application; (h) on 12 December 2013, the appellant filed a writ of summons in the Supreme Court of Western Australia (CIV 2874 of 2013) seeking damages for negligence against the respondent and one of its previous executive officers; (i) on 30 January 2014, the appellant filed a notice of appeal relating to a stay order made by Registrar Boyle on 24 January 2014 in Supreme Court action CIV 2874 of 2013; (j) on 27 February 2014, the appellant filed an interlocutory application seeking a stay of the proceedings in WAD 460 of 2013 arising out of certain personal disorders; and (k) on 3 June 2014, the appellant filed an interlocutory application seeking leave to amend the grounds of his appeal in WAD 460 of 2013. 12 In determining whether the appellant has instituted or conducted vexatious proceedings, the Court is entitled to consider the judgments of other Australian courts or tribunals: Attorney General v Chan [2011] NSWSC 1315 at [39] and cases there cited. 13 The respondent submits that each of above proceedings is vexatious as contemplated in s 37AM(1) of the FCA Act. I will consider these in turn.

Agapis v The State of Western Australia [2012] WASCA 132 14 The appellant sought leave to appeal his criminal conviction for burglary and sentence in the Court of Appeal of the Supreme Court of Western Australia. On 6 July 2012, Mazza JA, with whom McLure P and Buss JA agreed, concluded that the appellant's grounds and written submissions exhibited a good deal of confusion and repetition, and that none of those grounds of appeal had a reasonable prospect of succeeding. Accordingly leave to appeal was refused and the appeal was dismissed. 15 His Honour's conclusion is sufficient for this Court to characterise the proceeding as a "vexatious proceeding" within the meaning of s 37AM(1)(c) under that rubric on the basis that it was pursued in the Court without reasonable grounds. Later references in these reasons to s 37AM are to this particular definition.

Raoul Agapis and Plumbers Licensing Board [2013] AATA 187 16 The respondent rightly acknowledges that the appellant was entitled to a right of review of the respondent's decision dated 28 April 2011 refusing to grant to the appellant a plumbing contractor's licence. However, when considering O 63 r 6 of the former High Court Rules, which was relevantly analogous to the present provisions under the FCA Act, Toohey J in Jones v Skyring (1992) 109 ALR 303 at 310 adopted with apparent approval what was said by Ormerod LJ in In re Vernazza [1960] 1 QB 197 at 208: … the question is not whether [legal proceedings] have been instituted vexatiously but whether the legal proceedings are in fact vexatious. 17 Toohey J further observed at 310 that this question is one for the courts to decide on the facts. Toohey J also noted that the question is not to be decided by reference to whether the person against whom the order is sought was acting maliciously or in bad faith or, conversely, whether, in effect, that person believes strongly in the merits of their proceeding. 18 The proceeding was vexatious as defined in s 37AM(1)(a) in that it was an abuse of the AAT's process by way of the appellant repeatedly rejecting the jurisdiction of the Tribunal on the ground that it was not a court established in accordance with Ch III of the Constitution. Alternatively, it was vexatious in that the proceeding was pursued in the Tribunal in the manner that it was (Attorney General of NSW v Wilson [2010] NSWSC 1008 at [16]) and without reasonable grounds: s 37AM(1)(c). It is to be remembered that it was the appellant who instituted the proceeding in the AAT only to waste time and resources, private and public, challenging its jurisdiction to hear his case. 19 Further it constituted a vexatious proceeding for the purposes of s 37AM(1)(c) in that, as observed by Senior Member Penglis at [25], the overwhelming majority of the documents lodged and relied upon by the appellant concerned assertions to the effect that the particular legislation under consideration and regulations made under it were invalid. As Senior Member Penglis stated at [26]: The Tribunal has no jurisdiction to consider, let alone make any findings as to, the validity or otherwise of legislation or delegated legislation. The Tribunal is a statutory body empowered to consider matters properly within its jurisdiction as provided by the AAT Act. Challenges of the nature maintained by the Applicant are patently outside that statutory jurisdiction. 20 Moreover, the Tribunal had "no hesitation" concerning the merits of the appellant's case, concluding that he was not a "fit and proper person" to hold the relevant licence. He had been convicted of burglary in 2011 and given a suspended jail sentence. His appeal to which I have just referred above was roundly rejected. There were also antecedent criminal convictions (at [28]-[33]). Finally, the appellant lied about the existence of the convictions in his application for a plumbing contractor's licence. 21 There was more. However, it is readily apparent that his application to the AAT was doomed to fail. It was not, objectively considered, based upon reasonable grounds and was thus vexatious: s 37AM(1)(c).

Agapis v Plumbers Licensing Board [2012] FCA 1375 22 This was a matter which was before me. I find, for present purposes, that this proceeding was an abuse of the process of the Court and was therefore vexatious within the meaning of s 37AM(1)(a) in that: (a) the respondent sought "relief in the grant of an order that a plumbers licence be issued to him …", which could not be granted by the Court: at [1]; (b) the interlocutory order in the AAT was not sufficient to enliven the jurisdiction of the Court under s 44 of the Administrative Appeals Tribunal Act 1975 (Cth).

Agapis v Plumbers Licensing Board [2013] FCA 1221 23 This was an appeal before Siopis J in this Court from the decision of the AAT to which I have referred. The grounds relied on were as follows: 1. When the AAT sat to hear Agapis v Western Australia Plumbers Licensing Board, the AAT sat in direct contravention of Chapter III of the Commonwealth Constitution Act, and every other aspect of the Commonwealth Constitution, Commonwealth Legislation and High Court of Australia decisions that deal with judicial authority in the judicial tenure of the Commonwealth of Australia including but not limited to Lane v Morrison [2009] HCA 29 2. The AAT failed to grant and acknowledge my inalienable Creator given right to work in the chosen field of work that I am successfully trained, experienced and skilled in, namely as a Plumber and Drainer. That decision was made without lawful excuse. 3. The AAT was wrong in law and fact by disregarding decisions of the High Court of Australia and made their decision on one decision of the Western Australia Supreme Court. 4. The AAT was wrong in law and fact by disregarding Section 117 of the Commonwealth Constitution Act as the Commonwealth Constitution Act is the "Supreme Law of the Commonwealth of Australia". Section 117 of the Commonwealth Constitution Act states, ""A subject of the Queen, resident in any State, shall not be subject in any other State to any disability or discrimination which would not be equally applicable to him if he were a subject of the Queen resident in such other State. 5. The AAT and the WA PLB erred in law and fact by failing to recognize that Western Australia Legislation, the Water Services Licensing (Plumbers Licensing and Pluming Standards) Regulations 2000, does not specify that I am required to have a Western Australian Plumber's License. 6. The AAT has erred in law and fact by recognising the Western Australia Plumbing Licensing Board, WA PLB, exists as the Legislation that enacts the WA PLB, the Water Services Licensing (Plumbers Licensing and Plumbing Standards) Regulations 2000, is repugnant to the Commonwealth Constitution and breaches Commonwealth of Australia Legislation and High Court of Australia decisions and is therefore void ab initio. 24 The appellant's notice of appeal raised the following question of law: 1. The Administrative Appeals Tribunal failed to comply with decisions of the High Court of Australia which are binding on the Courts, Judges and people of every State of the Commonwealth of Australia, reference Lipohar v R [1999] HCA 65, (paragraphs 50-54) and this Tribunal sat in judgment of me and carried out a judicial function contrary to the Commonwealth of Australia Constitution Act, reference Lane v Morrison [2009] HCA 29. 25 The Court found at [16] that these grounds included "a number of allegations and assertions" which travelled beyond the scope of the question of law formulated. It is self-evident as to why Siopis J made that observation. 26 While the Court found that the appellant had raised a question of law such that the jurisdiction of the Court was enlivened, it was one which was answered in the negative because the point had already been dismissed by a Full Court in Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577. The appellant's appeal for that further and conclusive reason was in its entirety not based on reasonable grounds. It was accordingly a vexatious proceeding: s 37AM(1)(c).

Agapis v Birmingham DCJ [2013] WASC 329 27 This proceeding is yet another concerning the appellant's criminal conviction for burglary. 28 The appellant applied for judicial review of his conviction following the dismissal by the Court of Appeal of his appeals against conviction and sentence. The grounds for review asserted gross miscarriage of justice, lack of jurisdiction, and matters turning on principles set out in Dietrich v The Queen (1992) 177 CLR 292, amongst others. 29 He did not, as he was required to, file an affidavit in support. 30 He was granted an extension of time by the Court. It also afforded the appellant additional assistance in the preparation of his case. He was required to show cause why his application ought not be dismissed as incompetent. His notice in response offered reasons which at [13] were characterised by McKechnie J as "legally indefensible propositions". 31 He then filed an affidavit which contained no facts but consisted of definitions taken from the LexisNexis Concise Australian Legal Dictionary (LexisNexis Butterworths, 4th ed, 2011). A further affidavit was filed which again failed to disclose any facts. His final affidavit did depose to facts but concerned matters going to the conduct of and evidence in his criminal trial. 32 Justice McKechnie at [24] stated: While I do not doubt the assiduousness of the applicant's efforts as evidenced by his letter, to allow him to continue on a course which is doomed to fail would simply be cruel. 33 His Honour at [26] described the application as completely misconceived as well as being an abuse of process and it was dismissed. 34 Thus I find that this was a vexatious proceeding for the purposes of s 37AM(1)(a) and (c).

Agapis, Ex parte - CACV 105 of 2013 35 The appellant instituted an appeal from the decision of McKechnie J in the matter immediately above. It seems that this is yet to be heard. I have fully considered the reasons of McKechnie J. It is beyond argument that the decision is correct for the reasons given by his Honour. 36 Despite repeated invitations by the Court for the appellant to respond to the submissions made by the respondent concerning the various pieces of litigation, including this one, the appellant failed to do so in any meaningful way. He made no attempt to deal with the merits of these submissions. I find that this proceeding is a vexatious proceeding within the meaning of s 37AM(1)(c).

Agapis v Plumbers Licensing Board - WAD 460 of 2013 (current matter) 37 On 6 December 2013, the appellant initiated the current proceeding by way of an appeal against the judgment of Siopis J given in Agapis v Plumbers Licensing Board [2013] FCA 1221. The grounds are substantially similar to previous appeals in that he claims the AAT and the respondent are not entitled to refuse his application for a plumbing licence as they are not Ch III courts.

Appellant's interlocutory applications in WAD 460 of 2013 38 The appellant made an interlocutory application seeking a stay of the current appellate proceeding which was granted for three months. Despite the matter being stayed until 1 July 2014 at the appellant's request, on 3 June 2014 the appellant filed a further urgent interlocutory application seeking "leave of the Court to Amend Grounds of Appeal". The application was supported by a 42-page affidavit with 82 pages of attachments. They did not provide justification for either the urgency of the application or circumstances to justify why the Court should grant leave. 39 The respondent submits, and I accept, that the appellant's interlocutory applications are both rendered vexatious in accordance with paras (a) and (d) of the definition of vexatious proceedings in that: (a) it is an abuse of process for the appellant to obtain a stay and then nullify the justification for it (being the need to recover from a medical condition for a period of three months) by then lodging a further interlocutory application within the period of supposed convalescence; and (b) the proceedings will harass or annoy the respondent by requiring the respondent to devote already stretched resources to respond to what is ultimately a hopeless application. 40 His Minute of Proposed Amended Grounds of Appeal as further amended in the course of the hearing are in the following terms: Ground 1: No judicial bodies in this state, Federal Court of Australia, Administrative Appeals Tribunal, WA Supreme Court, District Court Perth, State Administrative Tribunal or Western Australian Plumbers Licensing Board, sit under Chapter III of the Commonwealth Constitution 1901; Ground 2: No law passed in this State of Western Australia since Federation, has been lawful since the removal of 32 sections of the State Constitution of Western Australia before Federation; Ground 3: The State of Western Australia was only ever granted the right to alter the State Constitution and not change it; Ground 4: This has the effect that the State of Western Australia Constitution has never been lawfully constituted; Ground 5: The Letters Patent for Office of Governor has never been complied with, therefore, there has never been a lawful executive government of Western Australia; Ground 6: The Letters Patent are contained in Chapter II of the Commonwealth Constitution 1901. 41 There is no doubt, for reasons I have explained, that the judgment of Siopis J in Agapis v Plumbers Licensing Board is correct. For that reason alone the appellant's application to amend is bound to fail and is thereby vexatious, it having no reasonable grounds: s 37AM(1)(c). Further, the proposed amendments do not bear on the orders made by Siopis J and would be incompetent for that further reason. The proceeding is an abuse of the process of the Court and thereby vexatious: s 37AM(1)(a). 42 I would for those reasons dismiss the appellant's interlocutory application seeking leave to amend his grounds of appeal.

CIV 2874 of 2013 43 On 12 December 2013 the appellant commenced proceedings in the Supreme Court of Western Australia against one of the respondent's previous officers and the State of Western Australia, although it is apparent he is seeking relief against the present respondent, the Plumbers Licensing Board, and one of the respondent's officers. He is seeking damages of $4.8 million for negligence and a "Western Australia Plumber's Licence in the Plaintiff's correct name and entity". 44 The proceedings are an abuse of the process of the Court to the extent a licence is sought. The Supreme Court of Western Australia cannot grant the appellant his plumbing licence. 45 At a status conference on 24 January 2014, Registrar Boyle stayed the proceeding pending the outcome of this present proceeding (WAD 460 of 2013). However, on 30 January 2014 the appellant filed a notice appealing the orders of Registrar Boyle. 46 The respondent submits, and I accept, that this appeal is vexatious within s 37AM(1)(c) because the appeal was instituted or pursued without reasonable grounds based principally in his contention that the Registrar of the Supreme Court unlawfully purported to sit as a Ch III court when making the stay order.

The appellant's responsive submissions 47 It is difficult to attempt a summary of the appellant's written submissions in response to the respondent's interlocutory application. Accordingly, I will set them out below in full: Submission Regarding Respondents Interlocutory Hearing-vexatious - 31 July 2014 1. The Applicant, Raoul Agapis, a subject of the Queen, Her Majesty Queen Elizabeth the Second and a subject of the Commonwealth of Australia, has the right in law to have all matters of law be dealt with at a Chapter III Court and failure to grant this constitutional right to Raoul Agapis is a species of fraud; 2. The action started by the applicant, Raoul Agapis, a subject of the Queen and a subject of the Commonwealth of Australia, against the Western Australia Plumbers Licensing Board, the WA PLB, has never been heard before a Chapter III Court to the detriment of Raoul Agapis, as the Federal Court of Australia, the Administrative Appeals Tribunal, the WA Supreme Court, the State Administrative Tribunal and the WA PLB, are not Chapter III Courts; 3. In the High Court of Australia, the HCA, the apex of the Judicature in the Commonwealth of Australia, the authorities are abundant proving this right in law to a subject of the Queen and a subject of the Commonwealth of Australia, to a Chapter III Court, see New South Wales v Commonwealth [1915] HCA 17, Waterside Workers' Federation of Australia v J W Alexander Ltd [1918] HCA 56, British Imperial Oil Co Ltd v Federal Commissioner of Taxation [1925] HCA 4, South Australia v Commonwealth [1942] HCA 14, R v Kirby; Ex parte Boilermaker's Society of Australia [1956] HCA 10, Kable v DPP [1996] HCA 24, Forge v ASIC [2006] HCA 44, Lane v Morrison [2009] HCA 29; 4. The Applicant, Raoul Agapis, a subject of the Queen and a subject of the Commonwealth of Australia, has the right in law to apply section 117 of the Commonwealth Constitution 1901 to a competent court in the litigation, Raoul Agapis v Western Australia Plumbers Licensing Board; 5. Full faith and credit shall be given throughout the Commonwealth, to the laws, to the public Acts and records, and the judicial proceedings of every State; therefore, as the State of Western Australia refuses to recognise the public record of New South Wales, with respect to Raoul Agapis, a subject of the Queen and a subject of the Commonwealth of Australia, having the use of a Plumbing and Drainage Contractor's License to use in New South Wales, then section 109 of the Commonwealth Constitution 1901 is to be applied; which states: "When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid"; 6. The WA PLB is a direct arm of the executive of the Western Australian Parliament as the members are appointed by the Minister demonstrating that there is no separation of powers between the body making a judicial decision and the executive of State Government, see Kable v DPP [1996] HCA 24; 7. The WA PLB is void ab initio on the following grounds that impeach the Commonwealth Constitution 1901: i. No law passed in this State of Western Australia since Federation, has been lawful since the removal of 32 sections of the State Constitution of Western Australia before Federation; ii. The State of Western Australia was only ever granted the right to alter the State Constitution and not change it; iii. This has the effect that the State of Western Australia Constitution has never been lawfully constituted; iv. The Letters Patent for Office of Governor has never been complied with, therefore, there has never been a lawful executive government of Western Australia; v. The Letters Patent are contained in Chapter II of the Commonwealth Constitution 1901; 8. The imposition of the requirement of the Western Australian legislation that Raoul Agapis, a subject of the Queen and a subject of the Commonwealth of Australia, pay a fee for a Plumber and Drainage License to carry out Contracting work is invalid, in that the fee for the said license is a duty of excise within the meaning of s 90 of the Commonwealth Constitution 1901, see Ha v New South Wales [1997] HCA 34; 9. The vexatious Interlocutory Hearing listed for 31 July 2014 initiated by the Respondents, the WA PLB, is an attempt to pervert the judicial power of Commonwealth which is vested in Her Majesty Elizabeth the Second as Head of the Commonwealth of Australia as enacted in the Commonwealth Constitution 1901 and is a crime under the Crimes Act 1914 (Cth), sec. 43, Attempting to pervert justice; 10. The applicant, Raoul Agapis, a subject of the Queen and a subject of the Commonwealth of Australia, has the right in law to be heard at a Chapter III Court, and the Respondents by attempting to label the applicant vexatious are in breach of Crimes Act 1914 (CTH), sec. 13 and 15F; 11. The State of Western Australia, by the Commonwealth of Australia Constitution Act 1900 and Commonwealth Constitution 1901, is disentitled to ignore the provisions of laws made by the Parliament of the Commonwealth, and Parliament of the United Kingdom and it is a species of fraud to do so, because the State of Western Australia and it's Parliament cannot assume powers, not granted by the electors whose authority they assume; 48 As I earlier mentioned these make no attempt to deal with the respondent's interlocutory application and the detailed submissions filed by the respondent. They are legally irrelevant.

Has the appellant instituted or conducted vexatious proceedings "frequently"? 49 There is no numerical threshold prescribed by Part VAAA of the FCA Act itself. The question of whether an appellant has "frequently" instituted or conducted vexatious proceedings for the purposes of s 37AO must be answered in the circumstances of the particular case: HWY Rent Pty Ltd v HWY Rentals (in liq) (No 2) [2014] FCA 449 at [114]. 50 The term "frequently" is a relative term and must be "looked at in the context of the litigation being considered": Wilson at [12]; see also Jones v Cusack (1992) 109 ALR 313 at 315 per Toohey J. Relevantly, the Court may find that a person has instituted or conducted vexatious proceedings frequently even though the number of proceedings may be quite small, such as where the proceedings are an attempt to re-litigate an issue determined against the person: see Fuller v Toms [2013] FCA 1422 at [77] per Barker J. 51 In relation to the appellant's plumbers licence the appellant has instituted a number of proceedings and currently has two ongoing substantive court proceedings (Federal Court matter WAD 460 of 2013 and Supreme Court matter CIV 2874 of 2013). Additionally he has on foot a judicial review proceeding relating to his criminal conviction (Supreme Court Court of Appeal matter CACV 105 of 2013). 52 I am satisfied that the respondent has frequently instituted or conducted vexatious proceedings as contemplated by the FCA Act.

Orders 53 Sackville J observed in relation to such orders that: "[l]inked with that objective is the need to protect the community, including litigants who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings": Ramsey v Skyring (1999) 164 ALR 378 at [52]. The objective to which his Honour was referring was that described by Toohey J in Jones v Skyring at 312 as to "reinforc[e] the power of the court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance". These observations are apt to the circumstances involving the proceedings instituted by the appellant. 54 The current appeal proceeding is itself vexatious. It has no merit whatsoever. 55 Accordingly, I will make orders pursuant to s 37AO(2)(a) and (b) of the FCA Act. There will be an order dismissing the present substantive appellate proceeding as well as an order prohibiting the appellant from instituting proceedings in the Court. The appellant should pay the respondent's costs. 56 The appellant's application to amend his grounds of appeal will also be dismissed with costs. I certify that the preceding fifty-six (56) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Gilmour.