Citation : NINAN and VALUER GENERAL [2016] WASAT 38

Practice and procedure - Appellant to show cause whether grounds of appeal have reasonable prospect of succeeding - Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i) - Appellant did not appear at hearing - Alleged ill health - Springing order made - Preliminary views as to merits of appeal

Supreme Court (Court of Appeal) Rules 2005 (WA), r 43(2)(g)(i)

Glew v Frank Jasper Pty Ltd [2010] WASCA 87

Ninan v Hannigan [2014] FCA 258

Ninan v Judge Newnes & Judge Murphy [2015] WASC 98

Ninan v National Australia Bank [2015] WASCA 10

Ninan v St George Bank Ltd (No 2) [2013] FCA 273

Ninan v St George Bank Ltd [2012] FCA 905; (2012) 294 ALR 190

Ninan v St George Bank Ltd [2013] FCA 818

Ninan v St George Bank Ltd [2014] FCA 334

Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180

Ninan v Westpac Banking Corporation [2015] WASCA 223

1 JUDGMENT OF THE COURT: The appeal arises from a decision of Curthoys J in the State Administrative Tribunal in which his Honour dismissed two applications by the appellant and his wife as an abuse of process. An appeal notice was filed in this court, by the appellant alone, on 19 April 2016. The appellant requires leave to appeal: State Administrative Tribunal Act 2004 (WA), s 105(1).

2 The appellant subsequently filed an interim application, dated 23 May 2016, seeking, in effect, an order prohibiting any registrar from taking any steps to have the appeal dismissed 'prematurely'.

3 On 3 June 2016, the Court of Appeal registrar issued a notice for the appellant to show cause why the appeal should not be dismissed pursuant to rule 43(2)(g)(i) of the Supreme Court (Court of Appeal) Rules 2005 (WA) on the basis that none of the grounds of appeal had a reasonable prospect of succeeding.

4 The appellant responded with an interim application, dated 9 June 2016, for the review of the decision of the registrar to issue the notice to attend to show cause.

5 Those three matters came before the court on 23 June 2016 for hearing. The appellant, who lives in Thailand, proposed to participate in the hearing by telephone. The court made arrangements for that to occur and confirmed the arrangements with the appellant. On the morning of the hearing, an email, relevantly in the following terms, was sent to the court purportedly on behalf of the appellant:

[The appellant] is unable to stand up without help as his vision has problems.

He cannot keep the eyes open.

He is unable to attend the Hearing today.

6 The hearing was adjourned to a date to be fixed. An email to the appellant of 24 June 2016 noted that the hearing on 23 June 2016 had been adjourned and requested the appellant to provide any unavailable dates in the following week so the matter could be relisted.

7 The hearing was subsequently relisted for 4 July 2016 at 10.30 am and the appellant was notified of that on 28 June 2016. In the meantime, the appellant had sent various emails to the court objecting to the matter being listed for hearing. None of his objections related to the state of his health but included complaints that the court had failed to comply with the Court of Appeal rules in relisting the matters; that the hearing was before two judges and not one; and as to the composition of the present coram. On Friday, 1 July 2016, the court confirmed by an email to the appellant that the hearing would proceed at 10.30 am on 4 July 2016.

8 At 9.15 am on 4 July 2016, an email was received by the court in which the appellant stated, relevantly:

I am currently bedridden and unable to open my eyes and therefore unable to stand up without help. (This message is done & sent by a neighbour from my verbal instructions from my bed.)

This happened fifteen minutes after reading from your website that a 'two judge Coram' with Newnes would hear the case.

9 It is not apparent when the appellant allegedly first saw the matter on the website, it being posted on the website shortly before 4.00 pm on 1 July 2016. But as the hearing had been adjourned from 23 June 2016, the appellant could hardly have been surprised that it was to be heard by the same coram. There was no medical evidence to support the appellant's alleged incapacity.

10 At 10.30 am on 4 July 2016 several attempts were made to contact the appellant on the telephone number he had provided to the court. The appellant did not respond to the calls.

11 In the circumstances, the appellant's claim to be too incapacitated to make oral submissions by telephone had all the hallmarks of a delaying tactic.

12 We decided that a springing order should be made, giving the appellant a further opportunity to be heard if his claim of incapacity was well founded.

Unless by 4 pm on 14 July 2016 the appellant files and serves an affidavit sworn or affirmed by a registered medical practitioner which explains and confirms in detail:

(a) the existence, nature and symptoms of the appellant's alleged illness as specified in his email of 4 July 2016; and

(b) the impact of the alleged illness on the appellant's capacity to make submissions to the court by telephone,

1. The appellant's application dated 9 June 2016 for review of Registrar Bush's decision dated 3 June 2016 is dismissed;
2. The appellant's application dated 23 May 2016 is dismissed;
3. The appeal is dismissed;
4. The appellant is to pay the respondent's costs of the appeal to be taxed.

14 We said we would publish reasons for our decision. The following are the reasons.

15 The appellant and his wife objected to the unimproved value determined by the respondent for two properties for the 2014 - 2015 assessment year. The appellant asked the respondent to refer the valuations to the Tribunal for review under s 33 of the Valuation of Land Act 1978 (WA), and that was done. Pursuant to s 27 of the State Administrative Tribunal Act, a review is to be by way of a hearing de novo.

16 The appellant's case before the Tribunal on the reviews was based substantially on serious and wide-ranging allegations of fraud by the respondent, banks, the Tribunal and others.

17 In his reasons for decision, the primary judge referred to two previous land valuation reviews involving the appellant that had come before the Tribunal, the first in 2012 and the second in 2014. His Honour noted that in the 2012 review the appellant had made serious allegations of fraud, deception and conspiracy against the respondent, staff of the respondent, two local government authorities, several land developers, several banks and all licensed valuers. The Tribunal had observed that the appellant's case was not that a particular valuation was irregular by reason of an improper purpose on the part of the respondent, but alleged there was a vast conspiracy from the point of sale of the land through financing of the sale to valuation, which the appellant sought to bring out into the open. The Tribunal had found that the central claims made by the appellant were not within its jurisdiction under the State Administrative Tribunal Act and, in any event, the ('mostly bizarre') allegations were supported by 'not a jot of real evidence'.

18 The primary judge noted that in the 2014 review the appellant had again made allegations of fraud and impropriety on the part of the respondent, for which it had been found there was no basis. The Tribunal had found that the appellant was acting vexatiously and unreasonably in making those allegations.

19 The primary judge found that the review proceedings for the 2014 - 2015 assessment year had been instituted by the appellant and his wife for the primary purpose of bringing allegations of fraud and misconduct against the respondent and others [21], [28]. His Honour dismissed the applications as an abuse of process under s 47 of the State Administrative Tribunal Act, on the grounds that the appellant and his wife sought to pursue allegations outside the Tribunal's jurisdiction and to use the Tribunal proceedings to make very serious but baseless allegations [29]. His Honour said that if there was a basis for review under the Valuation of Land Act then a new application should be made in the appropriate manner [31].

20 An appeal notice was filed by the appellant on 19 April 2016.

21 In his appellant's case, the appellant has asserted nine grounds of appeal. The grounds are framed as a series of questions, replete with allegations of fraud and impropriety on the part of the respondent and the Tribunal. Those allegations are expanded upon in the written submissions. None of the grounds of appeal alleges error by the primary judge in any comprehensible form. It is unnecessary to set them out. It is sufficient to set out the penultimate paragraph of the appellant's written submissions, which is as follows:

All these nine grounds are entrenched in one singular fact totally in my favour & inseparable to this proceeding; [the respondent] is one who confessed directly to me in three letters to the biggest valuation fraud in KalbarriVision; biggest land valuation fraud in the entire world; serious confessions in plain sight of judges after judges: [there are then set out a total of 22 judges of this court, the Federal Court, the District Court, and magistrates and members of the Tribunal]; a fact of admission of guilt everybody, every judge, every court, every official, every bank, every licensee in Australia want to hide from.

22 For the reasons previously mentioned, the appellant did not make any oral submissions at the hearing. The views we express are therefore preliminary and subject to hearing further from the appellant in the event that an appropriate affidavit of a registered medical practitioner is filed and served in accordance with the orders set out above.

23 The grounds of appeal must, of course, be read bearing in mind that the appellant does not have legal representation and that in such cases the court must be alert to the possibility that beneath inadequately expressed and often irrelevant material there may lurk an arguable case: Glew v Frank Jasper Pty Ltd [2010] WASCA 87 [10]. But after making all due allowances, on the papers filed to date we consider that none of the grounds of appeal has any reasonable prospect of succeeding. If or to the extent they seek to allege error by the primary judge, the alleged error does not emerge, and no error otherwise appears from the papers before us.

24 In fact, it would appear that the allegation of error is not the appellant's primary objective. Rather, it would appear that, having been thwarted by the dismissal of the Tribunal proceedings, the appellant now seeks to use this court as a vehicle to ventilate the same sort of serious allegations of fraud and impropriety on the part of the respondent and various other people or organisations against whom he apparently feels he has some grievance.

25 The appellant's propensity to make extravagant and unsupported allegations of such a nature is demonstrated by his conduct in previous proceedings in this and other courts: see, for example, Ninan v Westpac Banking Corporation [2015] WASCA 223; Ninan v National Australia Bank [2015] WASCA 10; Ninan v Judge Newnes & Judge Murphy [2015] WASC 98; Ninan v St George Bank Ltd [2012] FCA 905; (2012) 294 ALR 190; Ninan v St George Bank Ltd (No 2) [2013] FCA 273; Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180; Ninan v St George Bank Ltd [2013] FCA 818; Ninan v Hannigan [2014] FCA 258; Ninan v St George Bank Ltd [2014] FCA 334. It is notable that in four of the above-mentioned proceedings in the Federal Court the present respondent, among others, was the subject of allegations of a similar nature to those in the proceedings below.

26 Also, on the papers filed to date, the two interim applications are misconceived. In circumstances where on their face none of the grounds of appeal appeared to have any reasonable prospect of succeeding, it was entirely appropriate for the Court of Appeal registrar to issue the notice to attend to show cause why the appeal should not be dismissed.

27 It was in those circumstances and for those reasons that we made the springing order.