Bride v Shire of Katanning

1. The application for extension of time for leave to appeal is dismissed.
2. The applicant is to pay the costs of the two respondents on an indemnity basis. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

SIOPIS J: 1 This is an application by Mr Bride, the applicant, for an extension of time within which to bring an application for leave to appeal against the orders of the primary judge dated 10 February 2016, dismissing Mr Bride's originating application dated 12 August 2015 (the originating application). 2 In his originating application, Mr Bride alleged that the Shire of Katanning (the Shire), the first respondent, and its solicitors, McLeods, the second respondent, had contravened ss 18, 20 and 21 of the Australian Consumer Law (ACL), contained in Sch 2 of the Competition and Consumer Act 2010 (Cth), by engaging in misleading or deceptive conduct and engaging in unconscionable conduct. 3 The foundation of Mr Bride's claim in his originating application lies in an ongoing dispute between Mr Bride and the Shire about the recovery by the Shire of rates from Mr Bride in respect of a property being Lot 29 Creek Street, Katanning, Western Australia. 4 Mr Bride's claim in his originating application was, essentially, that, in pursuing Mr Bride for the rates, the Shire had acted unconscionably and had engaged in misleading or deceptive conduct, and, also, that, in the course of conducting litigation against him in respect of the rates dispute, the Shire and its solicitors, McLeods, had engaged in misleading or deceptive conduct and unconscionable conduct. Therefore, said Mr Bride, each of the respondents had contravened the ACL. 5 The Shire and McLeods brought an application for the summary dismissal of Mr Bride's originating application pursuant to s 31A of the Federal Court of Australia Act 1976 (Cth). Section 31A provides that a party to a proceeding may apply to have that proceeding summarily dismissed on the grounds that the proceeding brought against that party has no reasonable prospect of success. This argument was made by each of the Shire and McLeods in relation to the claims made in Mr Bride's originating application. 6 In support of its application, the Shire contended that, on the facts pleaded, Mr Bride could not establish an essential element of the claims he made against the Shire under the ACL, namely, that the impugned conduct alleged against the Shire was conduct "in trade or commerce". The primary judge examined the impugned conduct, namely, the Shire's actions in seeking to recover rates from Mr Bride and its conduct of litigation against him, and found that the impugned conduct was not conduct "in trade or commerce". On that basis, the primary judge summarily dismissed Mr Bride's claim against the Shire. 7 McLeods, the solicitors, contended that this Court had no jurisdiction to hear and determine the claim Mr Bride had pleaded against the firm because ss 18, 20 and 21 of the ACL only proscribe conduct of corporations, and McLeods was a partnership and not a corporation. Therefore, contended McLeods, Mr Bride's claim was bound to fail. The primary judge found that McLeods was a partnership and not a corporation, and, also, that the extended operation of the ACL pursuant to s 6 of the Competition and Consumer Act had not been invoked. Accordingly, the primary judge found this Court had no jurisdiction to hear and determine the claim made against McLeods, and summarily dismissed the claim against McLeods on that basis. 8 On 21 March 2016, Mr Bride filed an application for extension of time to apply for leave to appeal against the orders of the primary judge. The proposed notice of appeal contained the following five proposed grounds of appeal: 1. His Honour erred in Law, Equity and fact in that the Action WAD 426 of 2015 was commenced after the discovery of Fresh Evidence relating to the legal estoppel factor of the Consent Orders, dated 18 September 2008 and the discovery by the Appellant in July 2014 that the Respondents had interviewed the witness C Fear prior to the Trial on 1 to 3 June 2011 and that the argument of the Respondents to the Trial Judge was False, Misleading and knowingly Untenable 2. His Honour erred in Law and fact in determining that the Action was an attempt by the Appellant to re litigate the orders of Justice Chaney, His Honour failed to understand that the Action did not relate to the payment of Shires Rates but was for the wrongful pursuit of the Appellant for the said rates from 1987 until 2005 3. His Honour erred in Law and Equity in that he failed heed and or disregarded the Judgment of Allanson J (2014) WASC 143, delivered 17 April 2014 4. His Honour erred in Law and fact in that he failed to address the first paragraph of the Consent Orders of 18 September 2008, as proposed by the Shire of Katanning's solicitors, McLeods, being; "That the Appeal be allowed" The only subject matter of the Appeal 73 of 2008 was the question of Mortgagee in Possession (M/P) of Lot 29 Creek Street, Katanning. The Consent Orders at Law and by Consent resolved the issue of M/P and was a Legal Estoppel of that argument. 5. His Honour erred in Law in that he failed to have proper regard for the findings of Chief Justice Martin of the Supreme Court of Western Australia (2008) WASC 131, DELIVERED 4 July 2008 in relation to M/P, Abuse of Process, Res Judicata and Anshun Estoppel, and to; The findings of Martin CJ in the same Judgment in relation to M/P; "the claim bought by the Shire had not been the subject of any prior determination by a Court, of a kind which would render the assertion of that defence an abuse of process" 9 It is apparent that none of the five proposed grounds of appeal addresses the grounds upon which the primary judge dismissed Mr Bride's originating application. 10 In his submissions, Mr Bride contended that there were two grounds upon which the primary judge dismissed his originating application. The first was that the Court had no jurisdiction to entertain the claims made by Mr Bride; the second was that Mr Bride's claims amounted to an impermissible attempt to re-agitate claims which had already been determined in another proceeding in the Supreme Court of Western Australia. Mr Bride went on to complain that the Shire had relied upon the latter finding by the primary judge in an application before Tottle J in the Supreme Court of Western Australia. 11 Mr Bride said that he did not challenge the primary judge's findings on what he referred to as the "jurisdictional" ground, but, rather, wanted to challenge the dismissal of his claims on the re-agitation ground. 12 The difficulty for Mr Bride's contention, however, is that the primary judge did not dismiss Mr Bride's claims on the basis of any finding that Mr Bride's claims amounted to an impermissible re-agitation of claims determined in another proceeding in the Western Australian Supreme Court. In fact, the primary judge specifically stated that the argument that Mr Bride's originating application amounted to an abuse of process because it was a re-agitation of claims determined in other proceedings had not been made by the respondents; and that, on the basis of the other findings he had made, that issue did not need to be determined. The primary judge made that observation at [16], and repeated it at [18], of his reasons for judgment. 13 Therefore, contrary to Mr Bride's argument this morning, the primary judge did not dismiss Mr Bride's claim on the basis that Mr Bride had abused the Court's processes by re-agitating claims already determined in other proceedings. Rather, the primary judge recognised that such an argument might be available to the respondents, but that the respondents had not pressed the argument, and he did not, therefore, need to determine that question. 14 Consequently, any judge who reads the decision of the primary judge would not conclude that the primary judge had found that Mr Bride's originating application was an abuse of process because it constituted an attempt to re-litigate claims already determined in other proceedings. 15 In those circumstances, and also in light of the fact that Mr Bride's proposed notice of appeal does not address the grounds on which the primary judge made his decision, and, therefore, does not identify any relevant error, there is absolutely no prospect of Mr Bride obtaining leave to bring his proposed appeal against the orders of the primary judge, if I was to grant him an extension of time to file such an application. 16 Accordingly, Mr Bride's application for an extension of time is dismissed. I certify that the preceding sixteen (16) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Siopis.