Citation : RE MICHELIDES; EX PARTE CHIN [No 2] [2010] WASC 169

Practice and procedure - Application for leave to appeal against order for security for costs - Appellant's case defective - Grounds of appeal have no reasonable prospect of success - Appeal dismissed

Rules of the Supreme Court 1971 (WA), O 25 r 2(g)

Supreme Court (Court of Appeal) Rules 2005 (WA), r 32(4), r 32(5), r 43(2)(g)(i), r 43(2)(g)(ii)

Chin v Thies [2008] WADC 71

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488

Re Michelides; Ex parte Chin [2008] WASC 256

Re Michelides; Ex parte Chin [No 2] [2010] WASC 169

1 JUDGMENT OF THE COURT: On 23 November 2010, we dismissed an appeal by the appellant against an interlocutory decision of Kenneth Martin J of 8 July 2010 by which his Honour ordered the appellant to provide security for costs in proceedings by the appellant for a writ of certiorari: Re Michelides; Ex parte Chin [No 2] [2010] WASC 169. We said we would provide reasons for our decision. These are our reasons.

2 It is necessary, to put the present proceedings in context, to outline some of the background. The following account is taken substantially from the reasons for decision of Commissioner Herron in the District Court in Chin v Thies [2008] WADC 71. It will be necessary to return to that judgment in due course.

3 In November 2004, the first respondent agreed to act on behalf of the second respondent, the son of the appellant, in proceedings in the District Court. It was common ground that both the appellant and the second respondent were responsible for payment of the first respondent's fees and disbursements.

4 Subsequently a dispute arose regarding the first respondent's fees. On 11 December 1986, the first respondent lodged a caveat against the second respondent's property. The caveat was lodged on the basis of cl 18 of the retainer agreement, entered into by the parties, by which the second respondent agreed to charge his property with payment of the first respondent's fees. The second respondent then caused a notice under s 138B of the Transfer of Land Act 1893 (WA) to be issued.

5 In response to the s 138B notice, the first respondent commenced proceedings in this court seeking an order extending the operation of the caveat. On 8 February 2007, the proceedings came on for hearing before Templeman J who ordered that the caveat be extended until further order and directed that the first respondent commence proceedings in the Magistrates Court to resolve the substantive issue.

6 On 23 March 2007, the first respondent commenced proceedings in the Magistrates Court, in action FR 417 of 2007, against the appellant and the second respondent claiming the sum of $24,685.61 pursuant to the retainer. Subsequently there were discussions between the parties which ultimately led to the execution of a settlement deed on or about 12 April 2007.

7 Under the terms of the settlement deed, the appellant and the second respondent jointly and severally agreed to pay to the first respondent the sum of $11,500 on or before 13 April 2007. Upon payment, the parties agreed to request the registrar of the Magistrates Court to enter judgment in FR 417 of 2007 and the first respondent agreed to remove the caveat. The settlement deed was expressed to be an absolute bar to the commencement or continuation of any legal proceedings by any party against the other.

8 The appellant paid the first respondent the sum of $11,500 on 13 April 2007 and, on 18 May 2007, the appellant faxed a copy of the settlement papers and a request for judgment to the Magistrates Court. On 7 June 2007, judgment was entered.

9 On 20 August 2007, the appellant commenced proceedings against the first respondent in the Magistrates Court, in action 944 of 2007, seeking, among other things, 'the extorted sum' of $6,000 and general and special damages or out of pocket expenses in the sum of $1,500. The claim was commenced as a minor case under the Magistrates Court (Civil Proceedings) Act 2004 (WA). The sum of $6,000 claimed was part of the settlement sum of $11,500.

10 On 3 October 2007, Magistrate Michelides ordered, among other things, that the proceedings be transferred to the general division of the court.

11 On 7 December 2007, the first respondent applied to have the claim dismissed pursuant to s 17 of the Magistrates Court (Civil Proceedings) Act on the ground, among others, that the case did not disclose any reasonable grounds for the claim and was an abuse of the court's process. The appellant in turn applied for default judgment.

12 Both applications came before Magistrate Musk on 9 January 2008. Her Honour dismissed the appellant's application for default judgment, struck out the appellant's case as improper in light of the consent judgment, and summarily dismissed the appellant's claim.

13 The appellant appealed to the District Court against that decision. The principal issues on the appeal were:

(1) whether the Magistrates Court in FR 944 of 2007 had power or jurisdiction to set aside the consent judgment entered in FR 417 of 2007; and

(2) whether the consent judgment in FR 417 of 2007 had been entered and the settlement deed executed as a result of duress or illegitimate pressure placed upon the appellant by the first respondent.

14 On 20 May 2008, Commissioner Herron dismissed the appeal: Chin v Thies. His Honour found that the consent judgment had been properly entered. He concluded that Magistrate Musk had correctly held that she did not have power to set aside the consent judgment given in the earlier action and that her Honour had properly dismissed the appellant's claim, on the grounds, among others, that the claim was outside the jurisdiction of the Magistrates Court and was an abuse of process. Although strictly speaking it was not necessary to do so, his Honour went on to consider the appellant's allegation of duress, concluding that it had no basis.

15 On 24 July 2008, the appellant filed an originating summons in this court, seeking a writ of certiorari to quash the orders made by Magistrate Michelides and Magistrate Musk respectively in the Magistrates Court. Prerogative relief was also sought to quash the decision of Commissioner Herron in the District Court.

16 The originating summons came on for hearing before Hasluck J. His Honour pointed out that none of the relief claimed was available to the appellant and noted that prerogative relief against the magistrates was expressly excluded by reason of s 35 of the Magistrates Court Act 2004 (WA). However, in respect of the decisions of the magistrates, his Honour decided to treat the originating summons as an application for review under s 36 of the Magistrates Court Act.

17 On 7 November 2008, Hasluck J made review orders under s 36 of the Magistrates Court Act in respect of the decisions of Magistrate Musk and Magistrate Michelides respectively, and stayed the proceedings in the Magistrates Court until further order: Re Michelides; Ex parte Chin [2008] WASC 256 [152]. His Honour made no order in respect of the decision of Commissioner Herron. No date was set for the hearing of the review order but orders were made for service of the papers on the first respondent.

18 It is unnecessary to trace the subsequent progress of the review proceedings, which are still to be finally resolved. Relevantly, on 13 May 2010, the first respondent applied for security for costs in those proceedings. The primary judge, having referred to the rather tortuous history of the legal proceedings between the parties, observed that the appellant's case for review was weak, that there was potential for the case to consume considerable time and resources, and that the first respondent could incur significant irrecoverable costs in defending the matter, particularly given the unfocused nature of the appellant's contentions: Re Michelides; Ex parte Chin [No 2] [35].

19 The primary judge noted that an amount of $5,921.42 remained owing by the appellant to the first respondent in respect of the taxed costs of the District Court proceedings. His Honour found that that debt enlivened the jurisdiction of the court to order security under O 25 r 2(g) of the Rules of the Supreme Court 1971 (WA). Order 25 r 2(g) provides, in effect, that the court may order security for costs to be provided where the plaintiff is in default in respect of costs ordered to be paid by him in any proceedings previously brought by him against the same defendant for substantially the same cause of action or in relation to substantially the same subject matter.

20 The primary judge concluded that an order for security for costs should be made. He found that the appellant's case on the merits was 'threadbare', the amount in issue was small but had been pursued in a 'doggedly obsessive' manner by the appellant, and the appellant's practice of routinely filing convoluted materials was oppressive. His Honour concluded that an amount of $20,000 should be provided by way of security for the first respondent's costs. He ordered that the action be stayed unless that amount was paid into court within 48 hours of the publication of the reasons for judgment.

21 The appellant filed an appeal notice on 12 July 2010. As the appeal is against an interlocutory decision, the appellant requires leave to appeal: Supreme Court Act 1935 (WA) s 60(1)(f).

22 The appellant, a legal practitioner who is acting on his own behalf, filed his appellant's case on 16 July 2010. The appellant's case did not comply with the Supreme Court (Court of Appeal) Rules 2005 (WA) (the Rules) in a number of respects. Most significantly, the grounds of appeal were seriously defective. They were convoluted and difficult to understand, and many of the grounds did not appear to relate to the orders made by the primary judge at all but to a decision of the primary judge in other proceedings, being CIV 1112 of 2007, in which his Honour had refused to allow the appellant to appear on behalf of the second respondent in that action: Thies v Chin [2010] WASC 111. (The appellant was not a party to those proceedings.) The outline of written submissions contained in the appellant's case did not help. If anything, the submissions tended to make things more, rather than less, opaque.

23 On 15 October 2010, the appellant's application for leave to appeal was listed for hearing. At that hearing, Newnes JA told the appellant that the appellant's case was very seriously deficient and that, as the matter stood, leave to appeal must be refused. In the course of the hearing it emerged that the appellant sought to appeal on two, alternative grounds, the first that the primary judge had refused an oral application to disqualify himself from hearing the application on the basis of perceived bias, and the second that the primary judge had erred in ordering security for costs because he had failed to take into account relevant evidence (ts 7).

24 The appellant sought an opportunity to recast his appellant's case. In granting the appellant leave to file and serve an amended appellant's case Newnes JA said:

Mr Chin, I am - and I must say with reluctance - going to give you one further opportunity to put the appellant's case in order. I will give you leave to file and serve an amended appellant's case within a time which we will discuss in a moment, but I do need to make it absolutely clear that it will take very special circumstances to enable you to obtain any further opportunity to put the case in order.

You should for all practical purposes proceed upon the basis that it is essential that you put it in proper order the next time or it is most likely that your application for leave to appeal will be dismissed. So it must be in a proper form on the next occasion.

...

You will have to pay particular attention to the grounds of appeal. You will also have to pay attention to the submissions and to the other material ... but the principal attention must be directed to the grounds of appeal and the submissions (ts 8 - 9).

25 The appellant was given leave to file and serve an amended appellant's case on or before 5 November 2010 and the application for leave to appeal was adjourned to 23 November 2010. The appellant filed his amended appellant's case on 3 November 2010. On 10 November 2010, the appellant was given notice that at the hearing on 23 November he would also be required to show cause why the appeal should not be dismissed under r 43(2)(g)(i), on the basis that none of the grounds of appeal have a reasonable prospect of success, or r 43(2)(g)(ii), on the basis that the appellant had failed to comply with r 32(4) or r 32(5). The latter rules deal with the requirements as to the form and content of the grounds of appeal and submissions in an appellant's case.

26 The grounds of appeal in the amended appellant's case are preceded by an obscure and irrelevant preamble, for which there is no provision in the Court of Appeal rules. The grounds of appeal themselves suffer from similar deficiencies to the earlier grounds and are certainly no closer to being in compliance with the Rules. They border on the incomprehensible and, again, a number of the grounds appear to relate to the decision of the primary judge in CIV 1112 of 2007 in Thies v Chin. The submissions are equally deficient.

27 We do not think that any purpose would be served by reproducing the grounds of appeal. The first two grounds appear to assert that the primary judge erred in finding that the appellant was in default in payment of the costs in the District Court, on the grounds, first, that Hasluck J had stayed the operation of the costs order and, secondly, that Commissioner Herron had conceded that he had no jurisdiction in the proceedings in the District Court, so that the costs order he made was a nullity.

28 There is no substance in either of those grounds. Hasluck J expressly made no order in respect of the decision of Commissioner Herron: Re Michelides; Ex parte Chin [152]. Commissioner Herron found, in effect, that the appellant's appeal to the District Court was without merit and dismissed it: Chin v Thies. There was no appeal from that decision.

29 The balance of the grounds of appeal relating to the decision of the primary judge allege, in effect, that his Honour erred in failing to accede to the appellant's oral application that he disqualify himself from hearing the application for security for costs on the grounds of apprehended bias. There is equally no substance in those grounds.

30 The test to be applied in determining whether a judge is disqualified by reason of the appearance of bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 [12].

31 In addition to their obscurity and prolixity, these grounds of appeal contain scandalous allegations which have no place in such a document, especially one prepared by a legal practitioner. Suffice it to say that there is nothing at all referred to in the grounds which might be capable of establishing a reasonable apprehension of bias.

32 The other grounds of appeal appear to be directed to the decision of the primary judge in Thies v Chin in CIV 1112 of 2007. That decision is not the subject of the notice of appeal and those grounds are irrelevant.

33 The primary judge referred in his reasons for decision to the appellant's 'doggedly obsessive' pursuit of proceedings against the first respondent. This appeal seems to be consistent with that approach. It is a matter of concern that proceedings in which the amount in issue is $6,000 should ever have been pursued to the point that these proceedings have. Be that as it may, the appellant has had two opportunities to file an appellant's case which complied with the Rules. Not only has neither of the appellant's cases he has filed done so, but they have fallen so far short that there is no reason to believe that he would be able to do so if given a further opportunity, and every reason to believe the contrary. In the meantime, at least on the first respondent's side, costs out of all proportion to the amount in issue are mounting up. On the material before us, the appeal is manifestly hopeless and it should now be brought to an end.

34 It was for those reasons we concluded that the application for leave to appeal should be refused and the appeal dismissed with costs.