Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Citation : RE THE STATE OF WESTERN AUSTRALIA; EX PARTE VELLA [2010] WASC 213

Appeal against refusal of application to file writ - Issues previously litigated and determined in criminal proceedings - Application of Hunter principles - Application to have coram disqualified - Apprehended bias by association

D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1

Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45

Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529

Rajski v Powell (1987) 11 NSWLR 522

Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354

Re The State of Western Australia; Ex parte Vella [2010] WASC 213

Vella and MacTaggart [2011] WASAT 28

Vella v Bowden [2011] WASCA 158

Vella v Bowden [No 2] [2012] WASCA 271

Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41

1 This is an application for leave to appeal against a decision of Hall J in which his Honour refused the appellant's application to file a writ against various persons who, at one time or another, were allegedly directly or indirectly involved in the criminal justice system in relation to the appellant's conviction for the wilful murder of his wife. In the proposed writ, the appellant claimed, amongst other things, damages in the sum of $30 million plus interest 'from the date of [his] false imprisonment to the date of judgment'. The proposed writ alleged 'malicious prosecution, false imprisonment and misfeasance in a public office'.

2 The appeal in this matter was heard on 6 December 2012. There was no respondent to this appeal; the only appearance was by the appellant. This appeal was heard immediately after a related appeal, the court's reasons in respect of which are in Vella v Bowden [No 2] [2012] WASCA 271.

3 In the matter under appeal, Hall J's reasons for decision are recorded in Re The State of Western Australia; Ex parte Vella [2010] WASC 213. His Honour said at [4], [9] - [12]:

The initiation of proceedings for the purpose of mounting a collateral attack on a final decision adverse to the intending plaintiff reached by a court of competent jurisdiction in previous proceedings in which the plaintiff had a full opportunity of contesting the matter is an abuse of the process of the court: Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1981] 3 All ER 727. If an issue has been proved against a plaintiff in a criminal court beyond reasonable doubt it would be wholly inconsistent for it not to be decided against the plaintiff on the balance of probabilities in a civil action. An exception to this may arise where fresh evidence has been obtained since the criminal trial which has entirely changed the complexion of the case.

...

The proposed writ relates to the criminal proceedings. It seeks, by making various allegations of misconduct, to assert that Mr Vella should not have been convicted of the offences. At the conclusion of the hearing of this application Mr Vella confirmed that each of the matters he had raised in his submissions were matters that had also been raised in the Court of Appeal. He said that the determinations by the Court of Appeal against him were wrong and unreasonable. He confirmed that he was seeking to raise again in these proposed proceedings, matters that have been previously raised in the criminal proceedings. He confirmed that he was seeking to do so because he had exhausted all avenues of appeal. He confirmed that what he was now trying to do was raise these issues again in civil proceedings.

Whilst Mr Vella did refer to some evidence that he said had not been available at trial, it is clear that the issue of such fresh evidence was raised in the Court of Appeal and was ruled upon. There is, thus, no evidence that was not, or could not reasonably have been, relied upon at some stage of the criminal proceedings.

The purpose of the proposed proceedings is also confirmed in Mr Vella's affidavit in support of the application. In that affidavit he says that he 'has exhausted all avenues open to him in pursuit of justice and that is the reason for the civil action'.

Having considered the affidavit and the materials submitted by Mr Vella and the submissions he has made in support of his application, it is clear that the issues that he is seeking to agitate by the proposed writ have been previously heard and determined by the court. Mr Vella candidly admits that the purpose of these proceedings is to mount a further attack upon final decisions that were adverse to him. Accordingly, to allow this writ to be filed and issued would constitute an abuse of the court's process. Leave is, therefore, refused.

4 We would note that Hall J did not address the separate issue of judicial immunity in relation to the appellant's proposed claims against current and past judicial officers - as to which see D'Orta-Ekenaike v Victoria Legal Aid [2005] HCA 12; (2005) 223 CLR 1 [40]; Re East; Ex parte Nguyen [1998] HCA 73; (1998) 196 CLR 354 [30]; Forge v Australian Securities and Investments Commission [2006] HCA 44; (2006) 228 CLR 45 [75]; Rajski v Powell (1987) 11 NSWLR 522.

5 The relevant background is, subject to one additional matter discussed below, set out in Vella v Bowden [No 2] [2012] WASCA 271 [5] - [10], and will not be repeated here.

6 One of the (many) officers in the criminal justice system whom the appellant contends is liable for damages for his alleged 'false imprisonment' is the prosecutor at his trial. The appellant had previously complained to the Legal Profession Complaints Committee (the Committee) about the conduct of the prosecutor. In that complaint to the Committee, the appellant made various criticisms of the prosecutor, the substance of which featured prominently at the hearing of this appeal in support of the appellant's contention that he had been falsely imprisoned.

7 The Committee dismissed the appellant's complaints on the basis that there was no reasonable likelihood that the State Administrative Tribunal would find the prosecutor guilty of either unsatisfactory professional conduct or professional misconduct in relation to the allegations made by the appellant. The appellant then commenced proceedings in the State Administrative Tribunal, seeking a review of the Committee's decision. The appellant's application for a review of the Committee's decision was dismissed: Vella and MacTaggart [2011] WASAT 28.

8 By his grounds of appeal the appellant contends in effect that:

(1) the primary judge's decision is vitiated on the basis of apprehended bias in that his Honour sat on the Committee in relation to the appellant's complaint against the prosecutor;

(2) the primary judge's decision is 'unreasonable' and cannot be supported by the evidence, in that he was denied a fair trial, was the victim of fraudulent conduct and was denied the opportunity at trial, and in his subsequent appeals to this court, of proving his allegations that the killing of his wife occurred in circumstances where he had been 'set up' by his wife and others; and

(3) the judge incorrectly applied the principle in Hunter v Chief Constable of the West Midlands Police [1981] UKHL 13; [1982] AC 529.

9 In relation to grounds 2 and 3, the appellant maintains the same complaints that have been made and dealt with in relation to his appeals from his convictions, and which he continues to assert explain his current incarceration. He summarised the position at the hearing of the appeal (ts 67) in these terms:

That is my argument all along. I am in prison because defence counsel stuffed me up and then the judges opted for an approach of shut the evidence out as much as possible, not to show incompetence at the time, because I know it's fraud now, and similarly not to expose [the prosecutor] for coaching the witness.

10 Grounds 2 and 3 address the merits of the primary judge's decision and ground 1 makes an allegation of want of procedural fairness. It is convenient to commence with the grounds which address the merits of the decision.

11 In relation to grounds 2 and 3, the appellant's contentions in substance cover the same ground as those in the related appeal, which we have rejected for the reasons given in Vella v Bowden [No 2] [2012] WASCA 271. There was nothing in the materials before this court to justify the allegation that the appellant had been wrongfully convicted of wilful murder by reason of 'fraudulent conduct'. The appellant's submissions in this regard lacked any cogency. No error is shown in relation to ground 2. Nor has any error been shown with respect to the primary judge's application of the relevant principles in Hunter. On the contrary, his Honour's reasoning and conclusion were correct. Accordingly, the attack on the merits of the primary judge's decision is lacking any foundation in fact or in law.

12 As to ground 1 of the appeal, it is unnecessary to determine, for the purposes of the disposition of this application for leave to appeal, the question of the alleged apprehended bias of the primary judge. That is because, even if ground 1 had merit, we would dismiss the appeal in any event. On the materials before us, the appellant's application for leave to file the writ had no arguable prospects of success. The reasoning of the primary judge referred to in [3] above, is apposite and correct, and the institution of such proceedings would have constituted an abuse of process.

13 Finally, it is necessary to record that the appellant applied to have this coram disqualified on the ground of apprehended bias by 'association', and applied for interstate judges to be appointed to hear this appeal. Reference was made to Webb v The Queen [1994] HCA 30; (1994) 181 CLR 41, 74. It was contended that the court was associated with the various judges and other persons named by the appellant in the intended writ in the proposed proceedings. We dismissed that application for the reasons outlined below.

14 Insofar as the proposed defendants are officers within the criminal justice system who are not judges or former judges of this court, there is no basis for the claim of apprehended bias: cf Vella v Bowden [2011] WASCA 158 [5] - [8].

15 Insofar as the proposed defendants include certain current and past members of this court, as Kirby P (as his Honour then was) observed in Rajski v Powell (532), a case in which the appellant had brought proceedings against a judge of the Supreme Court of New South Wales, 'appellate courts ... are not unaccustomed to hearing allegations of error of fact and law, excess of jurisdiction and even bias on the part of judicial officers'. In the particular circumstances of this case, no fair-minded lay observer might reasonably apprehend that the judges of this coram might not bring an impartial and unprejudiced mind to the resolution of the very limited question to be determined, which involves, relevantly, whether the judge erred in finding that the appellant's proposed proceedings would constitute an abuse of process of the Supreme Court of Western Australia.

16 For these reasons we would dismiss the application for leave to appeal and the appeal.