Practice and procedure - Abuse of process - Leave to file and issue writ - Order 67 r 5 Supreme Court Rules 1971 (WA) - Issues previously litigated and finally determined in criminal proceedings

Sentencing Act 1995 (WA), s 32

Hunter v Chief Constable of West Midlands [1981] UKHL 13; [1981] 3 All ER 727

Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303

Re Skyring (1994) 68 ALJR 618

Reichel v Magrath (1889) 14 App Cas 665

Vella v The State of Western Australia [2006] WASCA 129

Vella v The State of Western Australia [2006] WASCA 177

Vella v The State of Western Australia [2006] WASCA 30

Vella v The State of Western Australia [2007] WASCA 59

1 HALL J: The applicant in these proceedings, Mr Vella, is presently a serving prisoner. On or about 21 May 2010 he wrote to the court enclosing two copies of a writ of summons which he was seeking to file. A registrar refused to file or issue the writ without leave of a judge having been first obtained pursuant to O 67 r 5 of the Rules of the Supreme Court 1971 (WA). Mr Vella now seeks leave to file and issue the writ.

Abuse of process: Reference by Registrar to Judge

(1) If any writ, process, motion, application or commission, which is presented for filing, issue or sealing appears to the Registrar to be an abuse of the process of the Court or a frivolous or vexatious proceeding, the Registrar shall refuse to file or issue such writ, process, motion, application or commission without the leave of a Judge or a Master first had and obtained by the party seeking to file or issue it.

(2) In the case of a motion or an application ordinarily returnable before a Master in chambers, an application for leave to file or issue such motion or application shall be made to a Master in chambers.

(3) In all other cases, an application or commission shall be made to a Judge in chambers.

(4) Applications for leave under paragraphs (2) and (3) shall be made ex parte and shall be supported by affidavit.

3 That rule reinforces the inherent power of the court to protect itself from unwarranted wastage of time and resources and to avoid the loss caused by those who have to face actions which lack any substance: Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312. It is an abuse of process to allow a person to re-litigate a matter which has already been decided adversely to him: Re Skyring (1994) 68 ALJR 618, 619 (Dawson J).

4 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.

5 In Hunter, the plaintiff sought to bring civil proceedings for the purpose of proving that a confession made to the police had been obtained by force. That confession had been relied upon in criminal proceedings at which the plaintiff had been convicted. The House of Lords held that the civil proceedings were an attempt to make a collateral attack on the ruling of the trial judge in the criminal trial that the plaintiff's confession had not been obtained by use of force and was admissible. Fresh evidence which the plaintiff sought to rely upon was held to have been available or could have been obtained at the time of the criminal trial and thus did not come within the fresh evidence exception. In these circumstances, the House of Lords held that the civil action had been properly struck out as an abuse of process. Lord Diplock referred with approval to the passage from the speech of Lord Halsbury LC in Reichel v Magrath (1889) 14 App Cas 665, 668:

I think it would be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were permitted by changing the form of the proceedings to set up the same case again.

6 In the present case, Mr Vella has filed in support of his application for leave, an affidavit dated 2 June 2010. I have read that affidavit and the accompanying annexures. I have also read a copy of the proposed writ of summons. In addition, on 29 July 2010, Mr Vella made detailed oral submissions in support of his application for leave. In the course of those submissions he made reference to affidavit material, transcripts and appeal books contained on other Supreme Court files which I have also taken the opportunity to examine.

7 I do not intend to set out in detail the nature of the claims made by Mr Vella in his proposed writ. To do so would defeat the purpose of requiring that leave be first obtained before the writ is filed and issued. If a document proposed for filing has the potential to be an abuse of the court's process then to repeat its contents in a judgment could serve to advance the abuse that the requirement for leave seeks to prevent. It will be sufficient for present purposes to set out in general terms the nature of the proceedings which Mr Vella seeks to bring.

8 On 11 March 2005, Mr Vella was convicted of the wilful murder of his wife following a trial before a judge and jury. At the sentencing hearing on 22 April 2005 Mr Vella pleaded guilty to three further charges by way of a s 32 notice under the Sentencing Act 1995 (WA). Since that time Mr Vella has brought appeals against both his conviction of the wilful murder charge and the other charges to which he pleaded guilty. Those proceedings include: Vella v The State of Western Australia [2006] WASCA 30; Vella v The State of Western Australia [2007] WASCA 59; Vella v The State of Western Australia [2006] WASCA 129 and Vella v The State of Western Australia [2006] WASCA 177. At the hearing of this application, Mr Vella also confirmed that he had sought special leave to appeal to the High Court, which was denied.

9 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.

10 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.

11 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'.

12 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.