RE RULES OF THE SUPREME COURT 1971 (WA); EX PARTE RUBA [2019] WASC 92 (27 March 2019)

1. This application is supported by four affidavits sworn by Ms Ruba: the first affidavit sworn on 29 November 2018; the second and third affidavits sworn on 15 March 2019; and the fourth affidavit sworn on 18 March 2019. The third affidavit annexes a copy of the proposed writ of summons the subject of this application. The application is also supported by an affidavit sworn by Ms Ruba's husband, Manraj Singh Khosa, on 15 March 2019.
2. By email sent to my Associate on 20 March 2019, Ms Ruba sought to bring to my attention another form of indorsement. She has since confirmed that the application to be determined concerns the proposed writ as annexed to her affidavit of 15 March 2019. The alternate writ is not properly before the court and it need not be further considered.

1. The applicant has submitted voluminous affidavits in support of her application for leave. The affidavits contains extensive and serious allegations of misconduct and unfair treatment.
2. These allegations made in the affidavits are levelled against a number of statutory bodies and individuals. The statutory bodies include but are not limited to the Legal Practice Board of Western Australia (LPB), and its committees. As the nature of the claim against the State of Western Australia, as expressed in the indorsement, concerns the alleged failure of the State to regulate the LPB and its committees, it is not necessary for me to name in these reasons all of the other bodies and individuals against whom allegations are directed in the affidavits.
3. The allegations relate to the treatment both of the applicant personally, and of her husband, Mr Khosa, in what the applicant terms a five year experience in which she has experienced breaches of 'the presumption of innocence and burden of proof, procedural fairness, the right to silence and the right against self‑incrimination'.
4. Mr Khosa was admitted to practice law in Western Australia in 2000 and was later employed as a director of two legal practices. The applicant says that she was the consultant practice manager to the law practice named Angove Law, and was later employed as practice manager by the practice named Law on Newcastle.
5. Proceedings were commenced by the Legal Profession Complaints Committee (LPCC) against Mr Khosa in the State Administrative Tribunal.[1] In those proceedings it was alleged that Mr Khosa, on or about 1 March 2013, engaged in professional misconduct pursuant to the Legal Profession Act 2008 (WA) s 403 and s 438. The allegations in those proceedings related to a personal undertaking made by Mr Khosa to a fellow legal practitioner in circumstances where, it was alleged, that Mr Khosa knowingly breached that undertaking.
6. The Tribunal found that on or about 1 March 2013, Mr Khosa engaged in professional misconduct pursuant to the Legal Profession Act, in that he released an executed withdrawal of caveat form to Silver Force Pty Ltd and/or Ms Stephanie Douglas (clients) for lodgment at Landgate in circumstances where:[2]

(i) Mr Khosa undertook to Mr Gough and Minter Ellison that the executed withdrawal of caveat form would not be lodged at Landgate and further, that he would not (it being necessarily implicit) release the caveat withdrawal to the clients until such time as the issue of costs relating to the claim by Roderick Gordon Murchison (the first plaintiff) in District Court proceedings No. CIV 2122 of 2011 relating to a loan of $150,000 by the first plaintiff to the clients had been resolved;
>
> (ii) The issue of costs relating to the first plaintiff's claim had not been resolved as of 1 March 2013, when Mr Khosa released the caveat withdrawal to his clients for the purpose of the caveat withdrawal being lodged with Landgate; and
>
> (iii) Mr Khosa released the caveat withdrawal to the clients for lodgment at Landgate.

7. The Tribunal found that Mr Khosa released the caveat withdrawal to the clients for lodgment at Landgate in the knowledge that it was in breach of the undertaking referred to above.[3]
8. On 23 September 2015 the State Administrative Tribunal found Mr Khosa guilty of professional misconduct and subsequently suspended Mr Khosa from legal practice for a period of six months.[4] Both the finding of guilt and the penalty imposed were appealed to the Court of Appeal.[5]
9. The plurality of the Court of Appeal dismissed the appeal against the primary finding of guilt made by the Tribunal.[6] The plurality went on to find that the imposition of a six month period of suspension demonstrated an implied error on behalf of the Tribunal as the decision was unreasonable or plainly unjust.[7] A substituted penalty of two months suspension was imposed.[8]
10. The applicant asserts that throughout the course of proceedings both before the State Administrative Tribunal and the Court of Appeal, she and Mr Khosa were the victims of unfair and unjust treatment. The applicant further asserts that the powers of the LPB and its committees have been used either deliberately or inadvertently to cause loss and damage to the applicant and the legal practices in which she was employed.
11. Ms Ruba says that she has lost her home and only asset; lost two of her places of work; lost her capacity to earn a living and secure her future and is now unemployed; and lost her dependence on her husband's capacity to continue his profession. Ms Ruba says that she has suffered 'financially, emotionally and reputationally', and claims that her health has also been injured.
12. Ms Ruba asserts that the totality of the injustices suffered by Mr Khosa and her have left her homeless, jobless and in poor health.

1. The applicant's writ of summons is accompanied by an indorsement of the claim in accordance with RSC O 6 r 1. Order 6 r 1 provides that:

Before a writ is issued it must be indorsed with a concise statement of the nature of the claim made, and of the relief or remedy required in the action.

1. The applicant is a self‑represented litigant and it is necessary to approach the proposed writ with some flexibility to assess whether it discloses a viable cause of action which, with appropriate amendment, could be put into proper form.[9] Care must also be taken to ensure that the applicant's rights are not obfuscated by her own advocacy.[10]
2. Upon a robust reading of the applicant's indorsement and the supporting affidavits, it appears that applicant seeks to recover loss and damage caused: (a) as a result of losses suffered by her directly as result of conduct affecting her personally; and (b) as a result of losses suffered as a result of conduct affecting Mr Khosa.
3. The basis for this claim is the alleged failure by the State of Western Australia ensure the proper conduct of a statutory body.

Legal principles Leave to file or issue the proposed proceedings

(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 subrules (2) and (3) shall be made ex parte and shall be supported by affidavit.

1. The rule reinforces this court's inherent jurisdiction to protect itself from unwarranted wastage of time and resources and to avoid the loss that would otherwise be caused to those who are forced to defend actions which lack any substance.[11]
2. The RSC O 67 r 5(1) does not set out any criteria to be applied in determining whether to grant or refuse leave to file or issue a proposed writ. However, it is accepted that a judge should only refuse leave to file or issue the proposed claim if satisfied that the writ would be an abuse of process, or a frivolous or vexatious proceeding.[12]
3. What amounts to an abuse of the court's process is insusceptible to a formulation comprising closed categories.[13] Proceedings are likely to constitute an abuse of process if they are clearly foredoomed to fail,[14] or are plainly unsustainable.[15]
4. The remarks of Vaughan J in Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates are also of assistance. At [31], his Honour stated:

An action is frivolous when it is not worthy of serious consideration, is insupportable in law, discloses no cause of action or is groundless. So too a matter that is without substance or is fanciful is frivolous. The term is apt to describe proceedings in which the plaintiff's claim is so obviously untenable that it cannot possibly succeed or in which there is no serious question to be tried. An action is vexatious if it has no reasonable prospects of success. The term has also been said to be apt to describe an action which is a sham and which cannot possibly succeed. (citations omitted)

1. I am cognisant of the fact that the exercise of a power which denies a potential plaintiff the opportunity to have their matter heard is a power which should not be exercised lightly.
2. I am particularly aware that a court at first instance should be astute not to risk stifling the development of the law by summarily dismissing actions in respect of which there is a reasonable possibility that, in the development of the law, a cause of action may be found to lie.[16]

1. Pursuant to the Crown Suits Act 1947 (WA) the Crown (defined to mean the Crown in right of the government of Western Australia), may sue and be sued in any court in the same manner as a subject.[17] This statutory provision displaces the common law immunity to tortious suit that the Crown (in the right of the Government of Western Australia) enjoyed under common law.[18]
2. In relation to torts, the effect of the removal of Crown immunity is described by the High Court in Baume v The Commonwealth,[19] where O'Connor J stated at 119 that:

The [Crown] acts, as all Governments must act, by its servants and whenever the relation of the [Crown] to its servants is such that in a similar case an individual would be liable for the acts of his servant, the [Crown] is liable for the acts of its servants. This applies to cases of contract, cases of wrongful interference with property and cases of neglect to perform a statutory duty. But in all these cases the plaintiff must show, against the [Crown] just as against an individual, that some wrong has been committed by the [Crown] through its servants, for which the [Crown] is responsible, or that some duty has been imposed upon the [Crown], either directly or through its servants, for a breach of which the [Crown] is liable.

1. It is now accepted that the Crown may be sued for the tortious actions of its servants or agents, including for the failures of its servants or agents in performing statutory duties.[20] The liability of the Crown rests in vicarious liability.[21]
2. The extent to which a body corporate created by a statute can be said to be an agent of the Crown or a representative of the Crown is determined by reference to the statute creating the statutory body.[22] As stated by Hungerford J in Workcover Authority Of New South Wales (Inspector Keelty) v Crown In Right Of The State Of New South Wales (Police Service Of New South Wales),[23] at [16]:

It will be apparent that some corporations, either aggregate or sole, have as their nature and purpose by the statute creating them the function to act on behalf of the Crown in performing their duties.

1. The majority of cases concerning whether a particular statutory body is an agent of the Crown have arisen for the purposes of determining whether such a body is entitled to the immunities enjoyed by the Crown. For present purposes, it is unnecessary to undertake an extensive review of the principles developed in these authorities.
2. The allegations of the applicant are levelled against the LPB its committees. The particular committees are not identified in the indorsement. The affidavits identify the Legal Profession Complaints Committee (LPCC) and the Professional Affairs Committee of the LPB.
3. The Legal Profession Act is an act which provides for the regulation of legal practice in Western Australia. Part 16 concerns regulatory authorities, and the LPB is established pursuant to s 534:
   1. Board established

(1) A body called the Legal Practice Board is established.

(2) The Board is a body corporate with perpetual succession.

(3) Proceedings may be taken by or against the Board in its corporate name.

1. The relationship of the LPB to the Crown is determined by the Legal Profession Act s 535:
   1. Relationship to Crown

The Board does not represent, and is not an agent of, the Crown.

1. Pursuant to the Legal Profession Act s 552, the LPB may appoint committees of Board members. The LPB may delegate any power or duty of the Board to a committee established pursuant to s 552,[24] and such a committee must comply with any direction or requirement of the LPB.[25] The Professional Affairs Committee is so established.
2. Pursuant to s 555, a LPCC is established. Although the LPB must not direct or impose any requirement on the LPCC as to the performance of its functions, the LPCC is a committee of the Board.[26]
3. Taking into account that the liability of the Crown for the actions of statutory body lie in vicarious liability, it is difficult to see how it could be reasonably argued that the Crown is liable in the terms proposed by the applicant's indorsement. The plain terms of the Legal Profession Act establishing the LPB expressly refute any such argument. The LPCC and the Professional Affairs Committee are committees of the LPB.
4. The LPB is body corporate that is capable of suing and being sued in its own name. It is clear from the plain terms of the legislation that the intention of parliament in creating the LPB was to alter any position at common law that the LPB was a servant or agent of the Crown, and by extension that the Crown would be vicariously liable by the actions of the LPB as its agent, or by the servants of the LPB as agents of the Crown.[27]
5. In light of the above, I find that the claim that is indorsed by the applicant against the State of Western Australia is doomed to failure. On this basis, I will not grant the application for leave to proceed with filing the writ of summons.
6. I note that there are other problems with the claims sought to be agitated by Ms Ruba against the State of Western Australia.
7. In the affidavits filed in support of the motion, Ms Ruba makes plain that she takes issue with findings made by the State Administrative Tribunal and the Court of Appeal in the proceedings which concerned her husband. The following passages of the affidavit sworn by Ms Ruba on 29 November 2018 are examples of the matters which are sought to be agitated by Ms Ruba in the proposed proceeding:

It is now clear that both State Administrative Tribunal and the Court of Appeal are mistaken in their decision whereby they concluded incorrectly that the undertaking that was being sought by Craig Gough and Michael Hales from Minter Ellison was for their client Murchinson's costs pursuant to Order 24A, where in fact Craig Gough and Michael Hales were seeking to secure Minter Ellison's fees via an unsustainable and invalid undertaking. So, in effect, it was never about the Order 24A costs for Minter Ellison. Therefore, the complaint by Craig Gough and Michael Hales from Minter Ellison was made in their own self-interest when the undertaking was invalid and unsustainable because it was obtained for a wrong and improper purpose, ie for their own fees.[28]

...

...Unfortunately, the false evidence was continuously used by LPCCWA against Khosa and Curthoys J further made allegations against Khosa that ensured the loss of our home, practice, reputation, careers, savings and future.

So, then we continued to the Court of Appeal, whereby all the untrue allegations made by all were upheld which led to the complete demise of the practice and Khosa's livelihood. This also goes against the Court of Appeal case law whereby the livelihood of a practitioner must not be threatened or destroyed. The destruction of Khosa's livelihood has also destroyed my livelihood as the practice was the family's sole income, both present and into the future.[29]

...

It was clear that there was no meeting of the minds between Craig Gough and Khosa where the undertaking was concerned. But this has been conveniently ignored. ...[30]

1. Ms Ruba then sets out the evidence that she says establishes that there was no 'meeting of the minds', making unsafe the findings of the State Administrative Tribunal and the Court of Appeal. In oral submissions, Ms Ruba implored the court to review the evidence 'with fresh eyes'.
2. The affidavits reveal, and Mr Ruba's oral submissions reinforce, that Ms Ruba seeks by the proposed proceeding to have this court revisit matters considered and determined by the State Administrative Tribunal and the Court of Appeal, particularly findings of fact made by the State Administrative Tribunal, which were based in part on an assessment of Mr Khosa's credibility. Pursuit of such endeavour may constitute an abuse of the process of the court. Issue estoppel may operate to prevent the same questions of fact from being relitigated in proceedings on a different cause of action between the same parties or their privies.
3. There appear to be other problems with the claims sought to be agitated by Ms Ruba against the State of Western Australia. Given my finding at [42], it is not necessary that I address all of the problems in these reasons.
4. Further, I note that the present case is not, in my view, one which the draft writ discloses a viable cause of action which, with appropriate amendment, could be put in a proper form. What is required is a new indorsement that addresses recognised causes of action which may entitle Ms Ruba to relief against a proper plaintiff. It is not for the court to suggest a form of writ which might entitle Ms Ruba to relief. As noted by Vaughan J in Ex Parte Gates, to do so would be to go beyond the proper assistance that the court might offer to a self‑represented litigant.[31]
5. If following delivery of these reasons Ms Ruba seeks to file another writ, it will be necessary to assess it.

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

Research Associate to the Honourable Acting Justice Strk

[1] See Legal Profession Complaints Committee and Khosa [2015] WASAT 107.

[2] Legal Profession Complaints Committee and Khosa [2015] WASAT 107 [113].

[3] Legal Profession Complaints Committee and Khosa [2015] WASAT 107 [113], as reflected in Order 1(iii).

[4] Legal Profession Complaints Committee and Khosa [2015] WASAT 107(S).

[5] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Buss P, Murphy & Beech JJA).

[6] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [156] ‑ [177] (Murphy & Beech JJA).

[7] Khosa v Legal Profession Complaints Committee [2017] WASCA 192 [223].

[8] Khosa v Legal Profession Complaints Committee [2017] WASCA 192(S).

[9] Wentworth v Rogers (No 5) (1986) 6 NSWLR 536, 537; Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [2018] WASC 213 [3].

[10] Neil v Nott [1994] HCA 23; (1994) 121 ALR 148,150.

[11] Jones v Skyring [1992] HCA 39; (1992) 109 ALR 303, 312; Re Magistrate Francine Walter; Ex Parte Tull [2016] WASC 271 [3].

[12] Perpetual Trustees Victoria Ltd v Allen [2012] WASC 258(S) [23]; Re Rules of the Supreme Court 1971 (WA); Ex Parte Gates [20].

[13] Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; (2006) 226 CLR 256 [9].

[14] Walton v Gardiner (1993) 177 CLR 378, 393; Re City of Stirling; Ex Parte Tallot [2012] WASC 33.

[15] Perpetual Trustees Victoria Ltd v Allen [23].

[16] Hospitals Contribution Fund of Australia v Hunt [1938] ArgusLawRp 58; (1982) 44 ALR 365, 373 ‑ 374; Middleton v The State Western Australia (1992) 8 WAR 256, 264.

[17] Crown Suits Act s 5.

[18] The State Of Western Australia v Cunningham [No 3] [2018] WASCA 207 [106]; Bell v The State of Western Australia [2004] WASCA 205; (2004) 28 WAR 555.

[19] Baume v The Commonwealth [1906] HCA 92; (1906) 4 CLR 97, 119 ‑ 120.

[20] The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40, 68 (Malcolm CJ); Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [No 2] [2010] WASC 45 [516] (Murphy J).

[21] Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [No 2] [516]; Haskins v The Commonwealth [2011] HCA 28; (2011) 244 CLR 22 [43].

[22] State of New South Wales v Commonwealth Bank of Australia [2001] NSWSC 1067; RESI Corporation v Sinclair [2002] NSWCA 123; (2002) 54 NSWLR 387 [53] ‑ [54].

[23] Workcover Authority Of New South Wales (Inspector Keelty) v Crown In Right Of The State Of New South Wales (Police Service Of New South Wales) [2000] NSWIRComm 234.

[26] Legal Profession Act s 555(2) and s 557(4).

[27] For the latter see Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation And Land Management [No 2] [516] (Murphy J).

[28] Affidavit of SK Ruba sworn 29 November 2018 par 40(x)(ix) at page 14.

[29] Affidavit of SK Ruba sworn 29 November 2018 par 40(mm) and (nn) at page 18.

[30] Affidavit of SK Ruba sworn 29 November 2018 par 40(qq) at page 18.