RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE KIEFER [2025] WASC 45 (18 February 2025)

1. Order 67 r 5(4) RSC requires that an application for leave must be supported by an affidavit. The motion has indeed been filed together with an affidavit sworn by the plaintiff on 17 January 2025, to which the plaintiff has attached the proposed writ and the correspondence received from the Court refusing leave to issue the writ. However, the affidavit deposes to no matters of substance other than merely attaching the writ and the letter. This is not typically sufficient for the purposes of the rules.

1. By way of brief background, on 12 November 2024, a Registrar of this Court informed the plaintiff in writing that the Registrar had refused to accept the proposed writ lodged by the plaintiff for filing and issuing.
2. It appears that there had been communications between the plaintiff and the Court in relation to the proposed writ, and its deficiencies, commencing in around early October 2024. I do not have copies of the earlier communications but it is unnecessary to review that material in the circumstances.
3. The Registrar determined that the proposed writ was an abuse of the process of the Court, or amounted to a frivolous or vexatious proceeding. The detailed letter issued by the Registrar to the plaintiff explained the deficiencies in the proposed writ, including that the indorsement failed to comply with O 6 r 1 RSC as the nature of the claim made, and the relief sought, were both unclear.
4. The proposed writ includes a series of factually-dense complaints which the plaintiff appears to have with the conduct of the insurance company which issued the plaintiff with a home and contents insurance policy. The house in question is situated in Mt. Helena, in Western Australia. I infer, and indeed the plaintiff has informed me this morning, there was a fire at the property, in February 2023.
5. The various complaints raised by the plaintiff appear to include the costs of emergency housing, the continuing maintenance of the property, financial loss suffered by the plaintiff, consequential loss, loss occasioned by family members, and the involvement of other third parties in the handling and investigation of the insurance claim. There are references to an apparent cash settlement offer made by the insurer, which the plaintiff states she has rejected.
6. It also appears the plaintiff has wholly embraced the apparent stipulation in her insurance policy that she must take all responsible steps to look after the damaged property until it is rebuilt, repaired or replaced. If I have understood the factual circumstances correctly, the plaintiff has, by virtue of her understanding of this policy stipulation, remained in the fire-damaged house for an extended period, without the usual amenities being available and while being exposed to the elements, at least on occasions.
7. The letter issued by the Registrar explained to the plaintiff the procedure for seeking leave from a Judge to file the proposed writ, notwithstanding the Registrar's refusal, and recommended that the plaintiff obtain independent legal advice in relation to the matter.

1. As required by the Rules, the plaintiff's motion was listed for an ex parte hearing. At this morning's hearing, I heard from the plaintiff. It is clear the plaintiff is passionate about her concerns arising from the perceived treatment she has received from the insurer in question. The plaintiff has emphasised various concerns including matters of delay and the involvement of a third party in the process, although my sense if that this third party was not an insurance company but rather an intermediary.
2. I have certainly gleaned a little more from the plaintiff during the course of the hearing, as to the nature of her complaints, but the legal basis of the proposed claims remains somewhat enigmatic.
3. To add to matters, the plaintiff has a degree of distrust towards insurance companies, which may have been exacerbated by reading the book 'Delay, Deny, Defend', a publication which the plaintiff mentioned this morning, and which I gather has achieved some degree of notoriety in recent times. The plaintiff also has a degree of distrust towards the legal profession, based on her history with them. All of this is somewhat unfortunate because this distrust may be obscuring the articulation of the legal claims the plaintiff maintains she has (and which she wishes to ventilate in this Court).

1. In approaching the plaintiff's application for leave, I have had in mind the following key principles.
2. First, it is important for the Court to bear in mind, when approaching an application for the peremptory termination of litigation brought by litigants who act in person, that an ill-expressed and unstructured pleading or statement of claim which contains no viable cause of action, could be put into proper form with appropriate amendment and a little assistance from the Court: Wentworth v Rogers (No 5).[1] Allied to this, the Court should approach matters involving litigants in person with a degree of flexibility, bearing in mind that the rules of pleading are a means to an end, not an end in themselves: Tobin v Dodd & Ors.[2]
3. Second, quite apart from the plaintiff's status as an unrepresented litigant, the Court should approach cautiously the exercise of a power which would in effect bring about the summary dismissal of proceedings, consistent with the caution otherwise traditionally employed when procedures such as those under O 14 r 1(1) RSC, O 16 r 1(1) RSC and O 20 r 19(1) RSC are invoked.
4. Third, there are nonetheless foundational purposes which underlie the procedures of the Court such as those found in O 67 r 5 RSC, to which the Court should give effect when exercising the power thereunder. In the context of the related procedure in O 63 r 6(1) of the then High Court Rules 1952 (Cth), Toohey J in Jones v Skyring[3] held that such procedures have two purposes.
5. The first purpose is to reinforce the inherent power of the Court to protect itself from the unwarranted waste of its time and resources, a consideration which resonates with the objects in O 1 r 4B RSC including the object of 'maximising the efficient use of available judicial and administrative resources'.
6. The second purpose is to avoid the loss that would otherwise be suffered by those required to defend actions which lack any substance.
7. Fourth, as to the concept of an abuse of process, and the characterisation of a proceeding as frivolous or vexatious, the following statements by Vaughan J (as his Honour then was) provide a useful summary:[4]

[25] There is considerable overlap between the concepts of 'abuse of process' and whether a proceeding is 'frivolous' or 'vexatious'. The expressions are often used in conjunction or interchangeably.

[26] What amounts to an abuse of the court's process is insusceptible of a formulation comprising closed categories. It extends to all categories of case in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. Abuse of process occurs in any circumstance in which the use of the court's procedures would be unjustifiably oppressive to a party or would bring the administration of justice into disrepute. However, the onus of satisfying the court that there is an abuse of process is a heavy one. The power to dismiss proceedings as an abuse of process should be exercised with caution and only in the most exceptional or extreme case. (footnotes omitted)

1. Applying these principles to an analysis of the proposed writ prepared by the plaintiff necessarily requires a balancing process to be undertaken by the Court, in the sense that competing considerations are engaged, involving both public interests and private interests.
2. Ultimately, though, the determination as to whether the filing of the proposed writ would amount to an abuse of process, or whether the proposed proceedings are frivolous or vexatious, is evaluative in character, not a discretionary assessment. The assessment thus gives rise to a unique outcome, rather than a range of outcomes.

1. I have given careful consideration this morning to the plaintiff's oral submissions and to the draft terms of the proposed writ, and to whether I should allow the plaintiff an opportunity to file a further affidavit or to amend the terms of the proposed writ.
2. Upon analysis, the proposed writ discloses a grievance, or a series of grievances, which do not identify the specific contractual instrument which is the subject of the proceedings, other than in broad terms. A policy number is identified, but no specific contract and no date on which the contract was entered. Further, the particular provisions of that contract which are said to have been breached are not identified and whether the contract is the only source of the claims sought to be agitated is unclear. The facts which are relied upon by the plaintiff are described in very broad terms, without being linked to particular claims which the plaintiff seeks to agitate. Finally, the relief at law which is sought is vague.
3. In my opinion, the proceedings in their current form should not be permitted to be filed and issued, and to thereby be served on the insurance company, because the proceeding is an abuse of process in this form or otherwise frivolous or vexatious. The Registrar's conclusion in this regard was, with respect, accurate in my view.
4. In my view, the proceeding in this form simply has no reasonable prospects of success, and will inevitably be met with an application to have the proposed writ set aside pursuant to O 6 r 1(2) RSC, or for the proposed writ to be struck out pursuant to O 20 r 19(1) RSC. Such applications would succeed in my view, at least in respect of the proposed writ in its current form.
5. It is not in the interests of justice to allow a proceeding of this nature to be filed and issued, which will inevitably lead to wasted costs for all concerned and which would be unjustifiably oppressive upon the proposed defendant.
6. Further, the proposed writ has not been drafted in such a manner that the Court could, with a small amount of surgery, refine it to an acceptable form.
7. In the circumstances, it is appropriate that I decline to grant leave to the plaintiff to file and issue the proposed writ.
8. It remains for me to echo the sentiment of the Registrar, as communicated to the plaintiff in the letter dated 12 November 2024, that the plaintiff should seek independent legal advice in respect of these matters. Such advice might be sought through the Law Society's Law Access programme, or through a Community Legal Service Centre. I have mentioned these avenues to the plaintiff during the course of the hearing this morning.
9. Additionally, as I have also mentioned to the plaintiff this morning, the plaintiff may wish to contact the Australian Financial Complaints Authority (AFCA), which has jurisdiction to consider matters connected with general insurance products, including home and contents policies. There are elements of the plaintiff's complaints, at least as recorded in the proposed writ, which appear to be amenable to resolution by a complaint handling authority.

1. I will order that the motion be dismissed, with no order as to costs.
2. The refusal of leave by the Court pursuant to O 67 r 5(1) RSC is without prejudice to the plaintiff's ability to file a fresh writ of summons in this Court, disclosing a viable cause of action and prepared in accordance with the rules.
3. In refusing leave, the Court should not be taken to express a concluded view that the plaintiff does not have any claims of substance against her insurer and, indeed, the Court is expressing no view to the effect that the plaintiff may have claims with substance or that the plaintiff's grievances and complaints will be substantiated in due course.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Wentworth v Rogers (No 5) (1985) 6 NSWLR 534, 536, 543.

[2] Tobin v Dodd & Ors [2004] WASCA 288 [16] - [18] (E M Heenan J, Murray J agreeing), [69] - [70] (Le Miere J); Albrecht v Australian Taxation Office [2015] WASC 246 [22] - [23] (Pritchard J); Ogbonna v Qantas Airways Ltd [No 2] [2020] WASC 359 [6] - [7] (Le Miere J); and Zaghloul v Bayly [2021] WASCA 125 [81] - [82] (Murphy, Mitchell and Vaughan JJA).

[3] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312 (Toohey J).

[4] Re Rules of the Supreme Court 1971 (WA); Ex parte Gates [2018] WASC 213 [25] (Vaughan J, as his Honour then was).