//
[2017] WASC 265
General information, not legal advice.
Supreme Court of WA
2017-09-12
Pritchard J
Original judgment source is linked above.
1 PRITCHARD J: This is an application (Application) brought by originating motion dated 29 July 2016 pursuant to s 4 of the Vexatious Proceedings Restriction Act 2002 (WA) (the VPR Act). St John of God Health Care Inc (SJOG) seeks the following orders:
(1) The applicant have leave of the Court to bring an application under s 4(1)(d) of the VPR Act; and
(2) The Respondent be prohibited from instituting proceedings, or commencing proceedings, as defined under s 3 of the VPR Act, against the applicant, or its employees, agents or legal representatives ... in any court or tribunal, without the leave of that court or tribunal, pursuant to s 6(1) of the VPR Act.
2 Ms Kezic did not attend the hearing of the Application or seek to be heard on it, but I am satisfied that she was given notice of it.
3 For the reasons which follow, I am satisfied that leave should be granted to SJOG to bring the Application. I am also satisfied that Ms Kezic has instituted or conducted vexatious proceedings and that the Court should make an order prohibiting Ms Kezic from instituting proceedings of a particular class, which is discussed below, against SJOG, without the leave of the court or tribunal in which those proceedings are sought to be commenced.
4 In these reasons, I deal with the following matters:
1. The material relied upon by SJOG in support of the Application
5 In support of the Application, SJOG relied upon the affidavit of Jasdev Singh sworn 28 July 2016, and the affidavit of Stephen Williams sworn 6 June 2017. The affidavits annexed documents in relation to the various proceedings SJOG claimed were vexatious proceedings. The factual background, and the facts relevant to each of the proceedings which SJOG claims are vexatious proceedings, are established by the evidence of Mr Singh and Mr Williams and by the documents annexed to their affidavits.
6 In addition, SJOG filed two affidavits of Rhonda Mae Carson sworn 4 August 2017, establishing both the service on Ms Kezic of the documents upon which SJOG relied in support of the Application, and the service on Ms Kezic of copies of the orders of the Court, including the order listing the Application for hearing.
7 Ms Kezic is a former employee of SJOG. On 22 May 2009, Ms Kezic sustained injuries to both her wrists.[1] She filed a workers compensation claim against SJOG on 1 July 2009 (First Claim).[2] SJOG accepted liability for Ms Kezic's First Claim in November 2009 and started weekly payments of workers' compensation and statutory entitlements to Ms Kezic, pursuant to the Workers Compensation and Injury Management Act 1981 (WA) (the WC Act).[3]
8 Between November 2009 and September 2010, Ms Kezic recommenced working with SJOG, in a different capacity, pursuant to a return to work program. On or about 8 September 2010, Ms Kezic claimed to have suffered a recurrence of her earlier wrist injury. She claimed that that injury also extended up both arms into her shoulders and neck (Second Claim).[4] She again received weekly payments of workers' compensation pursuant to the WC Act.
9 On 23 December 2010, and in January or February 2011,[5] SJOG served two notices on Ms Kezic pursuant to s 61 of the WC Act, challenging her ongoing entitlement to weekly payments of compensation on the grounds that she had full capacity for work in a number of suitable jobs. Ms Kezic disputed that that was so and filed applications at WorkCover WA, pursuant to pt XI of the WC Act, to challenge SJOG's application to cease her weekly payments of compensation.[6]
10 The dispute between Ms Kezic and SJOG in relation to the cessation of her weekly payments of workers' compensation proceeded to arbitration in June 2011. On 23 August 2011, Arbitrator McCahon heard Ms Kezic's applications under pt XI of the WC Act. Arbitrator McCahon found that Ms Kezic had the capacity for full time work as a menu monitor and ordered the cessation of her weekly payments of workers' compensation from 23 August 2011 (Arbitrator McCahon's Decision).[7]
11 Ms Kezic sought leave to appeal Arbitrator McCahon's Decision, but discontinued the appeal in October 2011.[8]
12 On 28 September 2011, Ms Kezic's employment with SJOG was terminated.[9]
13 For completeness, I should mention that on 16 July 2012, Ms Kezic then lodged a third application, numbered C1507, in which she indicated that she 'wish[ed] to have reconsideration on matters ... determined on 23 August 2011, and reversal of dismissal order. Have new information'.[10]
14 In application C1507, Ms Kezic indicated that the injury concerned was one which occurred on 22 May 2009, and in respect of which she had made a claim against SJOG on 9 July 2009. The nature of the injury was described by Ms Kezic as:[11]
repetitive strain injury to l & r wrist, then recurrence of wrist injury and exacerbation of shoulders injury more so on the right which was previously undiagnosed but documented in recurrence report...
15 In addition, in that application, Ms Kezic indicated that she sought an increase in her payments of workers' compensation because:[12]
decision to cease my weekly payments should never have occurred in light of all the evidence presented, and the obstruction of justice which has taken place.
16 Application C1507 was the subject of an attempted conciliation which was unsuccessful. On 13 July 2012, Ms Kezic filed an application for that claim to be arbitrated (Application A1507). Application A1507 was dismissed on 6 November 2012.[13] The reason given for the dismissal of that application was that 'an Arbitrator of [the Work Cover Arbitration Service] has no jurisdiction to reconsider a decision of an Arbitrator of the Dispute Resolution Directorate'.[14]
17 Ms Kezic subsequently commenced a number of further applications against SJOG pursuant to the WC Act. Those applications are (in part) the genesis for the present Application.
18 In the affidavits sworn by Mr Singh and Mr Williams, a large amount of material in relation to various proceedings instituted by Ms Kezic against SJOG was placed before the Court. However, in the submissions filed on behalf of SJOG in relation to the Application, counsel made clear that the Application was based solely on the proceedings outlined below at [44], which are said to be vexatious proceedings for the purpose of the VPR Act.[15]
19 Because Arbitrator McCahon's Decision has some significance in the discussion below, it is appropriate to set out the issues the Arbitrator considered and determined.
20 As Arbitrator McCahon observed in his Decision, the background to the dispute the subject of the arbitration was that Ms Kezic suffered an injury to both of her wrists, which stopped her from working on 22 May 2009;[16] Ms Kezic made a workers' compensation claim for her bilateral wrist injury on or about 10 July 2009, for which SJOG accepted liability;[17] Ms Kezic participated in a Return To Work Program with SJOG as a menu monitor between September 2009 and September 2010;[18] Ms Kezic claimed that she had to cease working as a menu monitor on or about 8 September 2010 due to a recurrence of her bilateral wrist symptoms; Ms Kezic alleged that that injury recurred because, from about 2010, the duties of her role as a menu monitor had changed following the introduction of a new computer system which required her to use a computer mouse for eight hours per shift;[19] SJOG served two notices dated 23 December 2010 and 17 January 2011 on Ms Kezic, pursuant to s 61 of the WC Act, advising Ms Kezic that it intended to cease weekly payments of workers' compensation on the basis of opinions given by two doctors that she had the capacity to work;[20] and Ms Kezic challenged SJOG's right to cease payments.[21]
21 The issues determined by Arbitrator McCahon in this Decision comprised the validity of notices sent by SJOG advising of its intention to discontinue payments to Ms Kezic;[22] the duties of a menu monitor;[23] and the extent of Ms Kezic's capacity for work at the date of the hearing, namely her capacity to perform fulltime work as a menu monitor.[24] Arbitrator McCahon found that Ms Kezic had the capacity to work as a menu monitor and was properly rehabilitated for a return to work.[25]
3. The notice given to Ms Kezic of the Application and of the hearing
22 Subsection 4(3) of the VPR Act provides that the Court must not make an order under s 4(1) prohibiting a person from instituting proceedings, or proceedings of a particular class, without hearing that person or giving that person the opportunity of being heard.
23 Ms Kezic did not attend the hearing of the Application and has not participated at any stage since the Application was filed.
24 On 7 March 2017, I granted an application by SJOG for substituted service of its originating motion and the affidavit of Mr Singh which had, at that stage, been filed in support of the Application.[26]
25 On 4 April 2017, I made orders programming the filing and service of any affidavits by either SJOG or by Ms Kezic, together with the filing and service of written submissions in relation to the Application, and listed the Application for hearing on Monday, 7 August 2017. In her affidavit, Ms Carson deposed that a solicitor for SJOG sent a copy of the extracted orders of the Court made on 4 April 2017 to Ms Kezic by email to her email address. Ms Carson also deposed that, in June and July 2017 respectively, she sent to Ms Kezic's home address, by registered post, a copy of the affidavit of Mr Williams of 6 June 2017 and a copy of the written submissions of SJOG in respect of the Application dated 24 July 2017. Ms Carson also deposed that, in July, she sent the same documents to Ms Kezic by email to Ms Kezic's email address.
26 In addition, after each occasion on which the Application has been before the Court for directions, my associate has sent to Ms Kezic's email address a copy of the Associate's Record of the orders made by the Court on each occasion.
27 As a result of the service of the Application, the documents on which SJOG relies in support of the Application, the submissions of SJOG, and the orders of the Court, including the order listing the Application for hearing on 7 August 2017, I am satisfied that Ms Kezic has been given an opportunity to be heard in respect of the Application. She has not sought to be heard in respect of the Application.
28 I am satisfied that it is open to the Court to make an order under s 4(1) of the VPR Act if the requirements of s 4 of the VPR Act are met.
4. The principles in relation to applications under the VPR Act
29 It is convenient to set out the sections of the VPR Act which are at the heart of the Application.
(a) a person has instituted or conducted vexatious proceedings (whether before or after the commencement of this Act); or
(b) it is likely that the person will institute or conduct vexatious proceedings,
the Court may make either or both of the following orders
(c) an order staying any proceedings, either as to the whole or part of the proceedings, that have been instituted by that person;
(d) an order prohibiting that person from instituting proceedings, or proceedings of a particular class, without the leave of a court or tribunal, as the case requires under section 6(1).
31 In s 3 of the VPR Act, the term 'proceedings' is defined to include:
(a) any cause, matter, action, suit, proceeding, trial, or inquiry of any kind within the jurisdiction of any court, including a court of summary jurisdiction, or a tribunal; and
(b) any proceedings, including interlocutory proceedings, taken in connection with or incidental to proceedings pending before a court, including a court of summary jurisdiction, or a tribunal; and
(c) an appeal from a decision or determination, whether or not a final decision or determination, of a court, including a court of summary jurisdiction, or a tribunal;
...
32 Further, the term 'vexatious proceedings' is defined in s 3 of the VPR Act to mean proceedings:
(a) which are an abuse of the process of a court or a tribunal; or
(b) instituted to harass or annoy, to cause delay or detriment, or for any other wrongful purpose; or
(c) instituted or pursued without reasonable ground; or
(d) conducted in a manner so as to harass or annoy, cause delay or detriment, or achieve any other wrongful purpose.
33 As EM Heenan observed in Granich Partners v Yap[27], the definition of 'vexatious proceedings' has the effect of:
characterising proceedings as vexatious if they are actively or intentionally instituted or pursued by the litigant for any of the identified or other wrongful purposes, so making the subjective intention of the litigant a material factor. However, proceedings will also be vexatious by an objective standard if they constitute an abuse of the process of the court or are brought or pursued without a reasonable ground... Hence, proceedings may be vexatious if they have any of these objective characteristics regardless of the personal intention, motive or state of mind of the litigant.
34 In determining whether proceedings were instituted without a reasonable ground, it is necessary to have regard to the whole of the claim brought by a party.
35 In determining whether proceedings may properly be characterised as vexatious proceedings, it is also relevant to consider the effect of the proceedings overall, particularly where the same persons have been parties to numerous different actions. The pursuit of proceedings without reasonable ground, when that conduct is repeated, may become seriously and unfairly burdensome, and the repetition of such conduct may permit an inference of wrongful purpose to more readily be drawn.[28]
36 A proceeding will not be characterised as having been made without reasonable ground merely because of errors in pleading and form. That is especially so where the litigant is selfrepresented.[29] The judgment as to whether a proceeding was pursued without reasonable ground is a matter of degree and judgment and depends upon all of the circumstances of the case.[30] A proceeding will not be saved from being found to have been instituted without reasonable ground merely because it may be possible for the Court to identify a cause of action for which, arguably, there may be some form of remedy.[31]
5. Why leave should be granted to SJOG to bring the Application
37 Subsection 4(2) of the VPR Act provides that an order under s 4(1) of the Act may be made by the Court on the application, made with the leave of the Court, of a person against whom another person has instituted or conducted vexatious proceedings. The requirement for leave to be obtained by a private applicant, who can be presumed to be acting to protect his or her own interests, is clearly to allow the Court to ensure that applications under the VPR Act are not used as 'instruments of oppression or as tactical exercises between adversaries'.[32] Consequently, the Court will only consider the exercise of its jurisdiction under s 4 of the VPR Act on the application of a private applicant if it is satisfied that there are 'substantial grounds for doing so', and there is 'sufficient reason to embark on an inquiry over whether or not the procedures and opportunities of litigation are being abused, or misused, in such a way that an intolerable burden is placed upon the time, resources and procedures of the Court'.[33]
38 Orders pursuant to s 4(1) of the VPR Act will be made on the application of a private applicant not merely because the private litigant is being inconvenienced or harassed, but because important public resources, namely the time and attention of the Court, are being, or may be, diverted by inappropriate claims, to the disadvantage not only of the Court, but to other litigants whose litigation may consequently be delayed.[34]
39 The requirement for a private litigant to obtain leave will be satisfied if it is shown that the applicant is seeking relief under the VPR Act primarily for the alleviation of an unjustifiable or exceptional burden which the alleged vexatious proceedings have caused. Leave will not be granted if the application is merely an additional means by which the applicant may avoid having to respond to litigation brought by a person seeking to obtain relief at law from some real or imagined wrong, even if it should turn out that that litigation will probably fail. In other words, relief under the VPR Act is not a remedy intended to achieve a stay or to prevent the institution of the ordinary run of litigation. Rather, it is an extreme remedy reserved for instances where quite hopeless claims are brought, or persisted with, to a degree which causes substantial disruption for the target of the claims and for the administration of justice.[35]
40 Under s 4(1) of the VPR Act, the Court has the power to order that all or any proceedings instituted by a vexatious litigant be stayed, or that that person be prohibited from instituting all or a class of the proceedings in the future. However, when relief is sought by a private applicant, the Court should tailor that relief to the protection of the applicant, or of persons or bodies closely associated with the applicant, who are prejudiced, or likely to be prejudiced, by the unrestrained litigious activity of the vexatious litigant. As a result, orders made by the Court will be directed to staying or prohibiting proceedings by the vexatious litigant against that particular applicant, rather than to staying or prohibiting any proceedings whatever.[36]
41 In the present case, the application is brought by SJOG against whom Ms Kezic has instituted or conducted various proceedings which SJOG contends warrant characterisation as vexatious proceedings.
42 I am satisfied that leave should be granted to SJOG to bring the Application. This is not a case in which it can be said that there is any risk that the Application has been made as a tactical exercise by SJOG against Ms Kezic, or as an instrument of oppression, in the conduct of litigation. That is because all of the proceedings relied upon by SJOG as constituting 'vexatious proceedings' have now concluded. The reason SJOG seeks relief under s 4(1) of the VPR Act is to protect it against the risk that Ms Kezic will institute or conduct vexatious proceedings against it in the future.
43 For the reasons set out below, I am satisfied that there are substantial grounds for exercising the Court's jurisdiction under s 4(1) of the VPR Act in this case. Having regard, in particular, to the number of appeals pursued by Ms Kezic against interlocutory decisions by Arbitrators, and the duration and context of those appeals, and to the nature of some of the interlocutory applications brought by Ms Kezic pursuant to the WC Act, I am satisfied that Ms Kezic's pursuit of proceedings against SJOG demonstrates that the procedures and opportunities of litigation are being abused in such a way that an intolerable burden has been placed upon the time, resources and procedures of the courts, and of arbitrators under the WC Act. It is also apparent from the material before the Court that very significant resources, time and attention on the part of SJOG have also been necessary to respond to the proceedings brought by Ms Kezic. The grant of leave reflects the fact that it is not just SJOG as a private litigant which is being inconvenienced by the proceedings brought by Ms Kezic, but also that important public resources, the time and attention of the courts, and of arbitrators under the WC Act have been, or may in future be, diverted by the pursuit by Ms Kezic of such proceedings.[37]
6. The proceedings relied upon by SJOG in support of the Application
44 SJOG relied upon the following proceedings in support of the Application:[38]
(i) Proceedings instituted by Ms Kezic before Fair Work Australia;
(ii) Proceedings instituted by Ms Kezic before the State Administrative Tribunal (SAT);
(iii) Applications for arbitration under the WC Act, namely:
(a) An application for arbitration made 16 July 2012 (application A1539);
(b) An application for arbitration made 10 December 2013 (application A11258);
(iv) Interlocutory applications made by Ms Kezic in the course of Application A1539, namely:[39]
(a) An interlocutory application made on 2 November 2011 (IA10);
(b) An interlocutory application made on 30 November 2012 (IA13); and
(c) An interlocutory application made on 25 February 2013 (IA19);
(v) Appeals to the District Court against decisions of arbitrators on interlocutory applications made in A1539 and A11258 (Appeals 42, 43, 44 and 55 of 2014);
(vi) An appeal by Ms Kezic against the decision of a District Court Registrar to dismiss her application to vacate a costs hearing, following the decision of the District Court on appeals 41 44 and 55;
(vii) Appeals to the Court of Appeal by Ms Kezic against:
(a) the decision of Stone DCJ in the District Court, in respect of appeals 41 44 and 55;
(b) the decision of Fenbury DCJ to adjourn SJOG's application for costs arising out of that decision by Stone DCJ; and
(c) the decision of Stone DCJ to award costs in respect of appeals 41 44 and 55;
(viii) Applications by Ms Kezic for special leave to appeal to the High Court of Australia against the decisions of the Court of Appeal on the appeals in (vii) above.
45 I deal with each of these categories of proceedings separately below.
7. Whether SJOG has established that the proceedings on which it relies were 'vexatious proceedings' for the purposes of the VPR Act (i) Proceedings instituted by Ms Kezic before Fair Work Australia
46 Mr Singh deposed that, on 14 October 2011, Ms Kezic filed an unfair dismissal claim with Fair Work Australia. (A copy of that application was not included in the affidavits filed in support of the Application.) Mr Singh deposed that Ms Kezic discontinued her action on 3 February 2012. That notice of discontinuance contained a note on the bottom, apparently written by Ms Kezic, in which she was critical of SJOG and of Fair Work Australia. There was otherwise no information in respect of this proceeding before the Court.
47 I am not persuaded that the proceedings instituted by Ms Kezic before Fair Work Australia were 'vexatious proceedings'. Although counsel for SJOG relied upon those proceedings as an example of vexatious proceedings commenced by Ms Kezic, he pressed that submission only faintly, at best. There is simply insufficient material before the Court to support the conclusion that those proceedings were 'vexatious proceedings'. In those circumstances, it is not necessary to consider the question whether Fair Work Australia is a court or tribunal for the purposes of the VPR Act.
(ii) Proceedings instituted by Ms Kezic before the SAT
48 Mr Singh deposed that on 3 February 2012, Ms Kezic filed a complaint with the Equal Opportunity Commission (EOC) for alleged victimisation and discrimination by SJOG.[40] Mr Singh further deposed that that complaint was dismissed on 25 May 2012 pursuant to s 89 of the Equal Opportunity Act 1984 (WA).[41] Mr Singh deposed that Ms Kezic appealed the decision of the EOC to the SAT, but that on 17 August 2012, Ms Kezic wrote to the SAT stating that she was unable to continue with her complaints having regard to her other legal commitments. The SAT proceedings were, therefore, withdrawn on 24 August 2012.[42]
49 I am not persuaded that the proceedings instituted by Ms Kezic before the SAT constituted 'vexatious proceedings' for the purposes of the VPR Act. The material before the Court is not sufficient to support any such conclusion.
(iii) Applications for arbitration made by Ms Kezic under the WC Act Applications A1539 and A11258
50 In this section of my reasons I outline the nature and outcome of Application A1539 and Application A11258, and set out my conclusion as to whether these proceedings were 'vexatious proceedings' for the purposes of the VPR Act. In addition, it is also necessary to consider the question whether the definition of 'vexatious proceedings' in the VPR Act is capable of encompassing proceedings before an arbitrator under the WC Act.
51 Application A1539 was commenced by Ms Kezic in May 2012. Mr Singh deposed that, in this application, Ms Kezic alleged that she had sustained a workrelated right shoulder injury on the same date on which she had sustained the injury to her wrists on which she had previously relied for her claim for compensation before Arbitrator McCahon. Ms Kezic claimed that she went on to develop a secondary left shoulder injury as a result. SJOG denied liability for that claim.[43]
52 This application was the subject of conciliation, which was unsuccessful, and, on 13 July 2012, Ms Kezic applied for her application to be arbitrated, which application became A1539. In that application, Ms Kezic referred to the date of her injury as 22 May 2009 (the same day on which she had claimed to have sustained an injury to her wrists) and indicated that the date she made a claim on SJOG in respect of that injury was 7 May 2012. She described the injury the subject of the claim as:[44]
recurrence of RSI injury to both wrists (more on the right) and exacerbation of R. shoulder injury and subsequent deterioration to the left shoulder which was previously undiagnosed but documented in recurrence report ... .
53 In describing the issues remaining in dispute which required arbitration, Ms Kezic stated:[45]
I wish the recurrence of wrists injury to be recognised as having occurred and for the respondent to accept liability for the shoulders injury which was left undiagnosed and untreated by countless number of doctors ... .
54 In addition, Ms Kezic sought the recommencement of her weekly payments of compensation. She stated that the 'decision to cease my [weekly] payments should never have occurred in light of all the evidence presented, and the obstruction of justice which has taken place'.
55 Application A1539 appears to have been dealt with together with Application A1507 (to which I referred at [13] [16] above) until November 2012 (when application A1507 was dismissed).
56 On 31 January 2014, Ms Kezic applied for arbitration of a dispute with SJOG concerning its liability for an injury she claimed to have suffered. Ms Kezic's application for arbitration indicated that the nature of the injury the subject of that dispute was:[46]
Recurrence of bilateral wrists injury (RSI) and the aggravation of symptoms caused to the upper arm to neck region (shoulders region) due to repetitive duties and as a result, the consequential left shoulder deterioration and the psychological sequelae.
57 Ms Kezic claimed that the injuries occurred between 4 August 2010 and 8 September 2010 and that she gave notice of her claim for workers' compensation to SJOG on 14 September 2010.
58 Ms Kezic indicated in her application that:[47]
Orders are sought that the Respondent accept liability for the recurrence of bilateral wrists injury and for the aggravation suffered to my right upper arm to neck/shoulder region, the consequential left shoulder deterioration and psychological sequelae condition which has developed as a result of the Respondent's negligent actions. Weekly payments are sought from the period of 20.9.2011 and ongoing for total incapacity and for overdue medical treatment to commence.
59 Ms Kezic also indicated that the issues remaining in dispute included:[48]
that the Respondent accept liability for the recurrence of my original wrists injury and for the exacerbations caused to the upper arm & neck/shoulder region, the consequential left shoulder deterioration & psychological sequelae due to the Respondent's negligence.
60 It is apparent that there was very considerable overlap between application A1539 and application A11258, save that application A11258 included a claim for psychological sequelae consequent on Ms Kezic's injuries.
61 On 4 June 2014, Arbitrator Rutherford ordered that Applications A1539 and A11258 be heard together. (That decision was the subject of an interlocutory appeal brought by Ms Kezic, which is discussed below at [143] [145].)
62 From the outset, SJOG disputed Ms Kezic's claim in A1539 on the grounds that there was no jurisdiction under the WC Act to determine that claim. There were several bases for that contention. SJOG contended that: insofar as the claim pertained to Ms Kezic's shoulder injuries, Ms Kezic had failed to lodge her claim within 12 months of that injury and in consequence of the delay, SJOG had suffered irreparable prejudice; insofar as the claim related to Ms Kezic's wrist injuries, she had not lodged a claim for a recurrence that resulted in an incapacity for work; Ms Kezic had not in fact suffered any shoulder injuries or recurrence of her bilateral wrists injuries; her shoulder injuries, if any, were not workrelated; and Ms Kezic was not incapacitated for work. In addition, and significantly for present purposes, SJOG contended that the substantial issues that Ms Kezic sought to agitate in support of her claim had been determined in Arbitrator McCahon's Decision and that Ms Kezic was estopped from seeking a further determination. It appears that these jurisdictional issues were argued before the arbitrator dealing with A1539. On 11 February 2013, the arbitrator notified Ms Kezic and SJOG that he had determined that he had jurisdiction to hear the claim.[49]
63 SJOG appealed that decision to the District Court. On 17 October 2013, that appeal was upheld, on the basis that the arbitrator had addressed only that part of the jurisdictional issues which pertained to Ms Kezic's failure to lodge her claim within 12 months of the shoulder injury occurring.[50] Curthoys DCJ concluded that either the arbitrator failed to deal with that part of the jurisdictional argument that concerned the overlap with the First Claim, or that the arbitrator had failed to give any sufficient reasons for concluding that he had jurisdiction.[51] Curthoys DCJ therefore granted leave to appeal to SJOG and quashed the order of the arbitrator and ordered that A1539 be listed for hearing before a new arbitrator.
64 Counsel for SJOG submitted that its jurisdictional arguments were not, thereafter, argued before the arbitrator as a preliminary or interlocutory application, but rather were reserved for the final hearing of the arbitration of A1539 and A11258.[52]
65 SJOG also disputed the question of jurisdiction under the WC Act to deal with A11258. The basis for that jurisdictional challenge reflected the issues SJOG had raised in respect of A1539, namely that there was no jurisdiction to determine the question of the recurrence of Ms Kezic's claim for shoulder injuries because she failed to lodge the claim within 12 months of the injury and SJOG claimed that it suffered the irreparable prejudice because of the delay; and that the substantive issues that Ms Kezic sought to agitate in support of her claims had been determined in Arbitrator McCahon's Decision and she was estopped from seeking a further determination. In addition, SJOG claimed that there was no jurisdiction to proceed to an arbitration of the claim because Ms Kezic's claim for psychological sequelae from her injuries had not been the subject of conciliation and therefore could not proceed to an arbitration.[53]
66 The hearing of the arbitration in respect of applications A1539 and A11258 was listed for seven days commencing on 23 May 2016.[54] On the first day of that hearing, Ms Kezic objected to the SJOG's proposed reliance on five witness statements, which Ms Kezic contended were not relevant and upon which, she claimed, SJOG was estopped from relying. Arbitrator Rutherford concluded that the witness statements should not be excluded and that any decision as to the relevance of that evidence could be made after hearing all of the evidence, including the evidence from those witnesses.[55]
67 According to the reasons for decision given by Arbitrator Rutherford, before Ms Kezic commenced giving her evidence, Ms Kezic stated that[56]
she was leaving the hearing. She advised that she had received advice that my decision was wrong, and that in her view the hearing was thereby a "farce" and that the decision was "unlawful". The applicant further advised that her husband was not prepared to tolerate "the injustice" any longer that he had collected all the case documents and was leaving. The applicant advised that without her husband she could not continue. As she was departing, the applicant informed me that I could do "whatever I liked" (about her applications). I understood the effect of what the applicant was saying was that, given the earlier decision, she no longer wished to nor would she be participating further in the arbitration hearing.
68 After Ms Kezic left the arbitration hearing, that hearing was adjourned to the following day. The reasons given by Arbitrator Rutherford indicated that an officer of the WorkCover Arbitration Service (WCAS) was asked to contact Ms Kezic to determine if she intended to appear the next day. According to the Arbitrator's reasons, 'the officer was told the applicant would not be returning to the arbitration hearing and that the arbitrator could do "whatever he likes"'.[57]
69 On 24 May 2016, Ms Kezic did not attend the arbitration hearing. At that stage, having taken into account what had occurred the day before and the indication that Ms Kezic did not wish to participate further in the arbitrations, Arbitrator Rutherford concluded that it was not appropriate to continue further with the arbitrations and that the appropriate order was to dismiss both applications (that is, A1539 and A11258) 'without proceeding to make any decision as to the merits of the applications'.[58]
70 I note that counsel for SJOG then made an application for an order that Ms Kezic pay SJOG costs of both applications. That application was refused by the Arbitrator.
71 Counsel for SJOG submitted that applications A1539 and A11258 could be characterised as 'vexatious proceedings' under the VPR Act for two reasons. First, he submitted that those applications constituted an attempt to reagitate issues considered and determined in Arbitrator McCahon's Decision. Counsel for SJOG submitted that an attempt to relitigate the issues in different proceedings is an abuse of process. Secondly, counsel for SJOG submitted that the applications were dismissed, after approximately four years, because Ms Kezic abandoned the arbitration. As I understood the submissions of counsel for SJOG, Ms Kezic's abandonment of those proceedings was said to be evidence of the fact that she had conducted the proceedings in a manner to harass or annoy, cause delay or detriment or achieve any other wrongful purpose, rather than to genuinely seek the resolution of her dispute with SJOG.
72 In order to be a 'vexatious proceeding' under the VPR Act, there must be a 'proceeding'. The definition of 'proceedings' in the VPR Act refers to proceedings of various kinds before a court or a 'tribunal', and the definition of 'vexatious proceedings' itself includes proceedings which are an abuse of the process of a court or 'tribunal'. As applications A1539 and A11258 were arbitrations conducted by arbitrators under the WC Act, the question arises whether those applications constitute 'proceedings' before a 'tribunal' for the purpose of the VPR Act. The same issue arises in respect of the interlocutory applications brought in applications A1539 and A11258 which are also relied upon by SJOG as vexatious proceedings.
73 The term 'tribunal' is not defined in the VPR Act. Determining the meaning of that word requires consideration of the ordinary meaning of the word, within its context, which includes the legislative history and purpose.[59] For the reasons which follow, the arbitrators who dealt with the arbitration of applications A1539 and A11258, and with the interlocutory applications brought in the course of those arbitrations, can in my view be characterised as a 'tribunal' for the purposes of the VPR Act.
74 First, the ordinary meaning of the word 'tribunal' includes an 'adjudicative body set up by the government to investigate particular matters; a court of justice; a place or seat of judgment'.[60] The ordinary meaning of the word 'tribunal' also extends to 'any of various local boards of officials empowered to settle disputes'.[61] The ordinary meaning of the word 'tribunal' thus refers to an adjudicative body which investigates matters, or determines disputes between parties, and which in that sense may be analogous to a court.
75 Secondly, the statutory context of the VPR Act supports the view that the meaning of the word 'tribunal' should be given its ordinary meaning. Within the definition of 'proceedings', tribunals are clearly viewed as analogous to courts. What is also apparent, however, is that there is no warrant for construing the word 'tribunal' as referring only to bodies which bear a very close similarity to courts. That is because the definition of 'proceedings' is broadly framed, so as to encompass not just the forms of proceedings ordinarily instituted in courts ('any cause, matter, action, suit') but also includes any 'proceeding, trial or inquiry of any kind' (emphasis added).
76 In not dissimilar statutory contexts, the word 'tribunal' has been construed in a similar way. In Re Monger; Ex parte WMC Resources Ltd,[62] a majority of the Full Court of this Court held that the word 'tribunal' in that context signified a body of the same genus as an inferior court, a magistrate and a justice. In concluding that the Director of the Conciliation and Review Directorate, constituted under the WC Act, was not a 'tribunal', Anderson J (with whom Scott J agreed) took into account whether the Director performed judicial or quasijudicial functions, or in other respects was analogous to a court. Similarly, in Salaries and Allowances Tribunal v West Australian Newspapers Ltd[63] Martin CJ held that in the statutory context in that case, the word tribunal was 'to be taken to include ... a body performing judicial or quasijudicial functions of the same genus as a court'.[64] His Honour concluded that the word 'tribunal' should therefore be construed as 'an adjudicative body which sits to resolve and determine disputes between parties, or between the State and a party, and which is of the same genus as, or analogous to, a court'.[65]
77 One feature of courts is that they perform judicial functions. The indicia of the exercise of judicial functions include matters such as the ability to make binding and authoritative decisions on controversies between parties, the determination of 'existing rights and duties ... according to law',[66] the enforceability of the body's decisions, and procedures which include the taking of evidence, the right to legal representation, crossexamination, generally open hearings and addresses,[67] the availability of an appeal to a court, the obligation to provide procedural fairness and the obligation to provide reasons for decision.[68]
78 The question, then, is whether an arbitrator under the WC Act is an adjudicative body which investigates matters and determines disputes between parties, and which is analogous to a court. In order to answer that question it is necessary to consider the manner in which claims for workers' compensation are dealt with, and the role of arbitrators, under the WC Act.
79 The functions performed by arbitrators under the WC Act, and in particular, the functions exercised by the arbitrators who dealt with the proceedings brought by Ms Kezic, support the conclusion that those arbitrators were adjudicating disputes between SJOG and Ms Kezic, and performing functions analogous to a court.
81 One of the disputes which sometimes arises between an employer and a worker concerns whether the worker is totally or partially incapacitated for work, and thus whether the worker is entitled to weekly payments. An employer may discontinue weekly payments without an order of an arbitrator where a medical practitioner has certified that a worker has total or partial capacity for work, or that a worker's incapacity is no longer a result of the relevant injuries.[72] Before ceasing payments, an employer must give 21 days' notice to the worker.[73] The worker may then make an application disputing the right of the employer to cease making the weekly payments, and for an order that the weekly payments not be discontinued.[74]
82 If it is unable to be resolved by conciliation, a dispute of that kind may be determined by an arbitrator under the WC Act.[75] On the hearing of such an application, an arbitrator may make a variety of orders including an order to dismiss the application, in which case the weekly payments may be discontinued or reduced as the case may be, or make an order as to weekly payments by the employer to the worker on such terms as the arbitrator thinks fit.[76] In making such an order, the arbitrator may take into account matters such as whether a return to work program has been established for the worker, and whether the worker has participated in that program.[77]
83 Part XI of the WC Act provides for the resolution of disputes under the WC Act. A 'dispute' is defined to include 'a dispute in connection with a claim for compensation, or the liability to pay compensation, under this Act'.[78] The scheme of pt XI is that disputes will first be the subject of conciliation, and if conciliation is unable to resolve the dispute, a party may apply for the dispute to be subject to arbitration before an arbitrator.[79]
84 Division 4 of pt XI of the WC Act establishes the WCAS. The WCAS is comprised of officers designated or engaged as arbitrators for the purposes of pt XI of the Act.[80] Subject to the WC Act, arbitrators are given exclusive jurisdiction to examine, hear and determine all 'disputes' under the WC Act.[81]
85 An arbitrator is bound by the rules of natural justice, except to the extent that the WC Act authorises departure from those rules.[82] An arbitrator is not bound by the rules of evidence and is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities and legal forms.[83] An arbitrator may inform himself or herself on any matter as the arbitrator thinks fit.[84] At a hearing or conference before an arbitrator, a party to the proceeding may appear in person or may be represented, including by a legal practitioner.[85]
86 Hearings before an arbitrator are, generally speaking, to be conducted in private.[86] An arbitrator is able to conduct all or part of a proceeding entirely on the basis of documents, and may take into account written submissions prepared by or on behalf of a party.[87] Notice of the time and place for the hearing of a proceeding is required to be given to each of the parties to the proceeding and each other person entitled to the notice of the hearing pursuant to the WC Act.[88]
87 In a proceeding before an arbitrator, the arbitrator may call persons to give evidence, examine witnesses on oath or affirmation, crossexamine witnesses and require witnesses to answer questions put to them.[89] An arbitrator may administer an oath or take an affirmation for the purposes of the WC Act.[90]
88 Arbitrators have the power to make orders and give directions, including orders and powers of an ancillary nature which are designed to achieve the primary orders or directions made by the arbitrator.[91]
89 Subject to the WC Act, an arbitrator may make such decisions as the arbitrator thinks fit.[92] The decision, or the reasons for a decision, of an arbitrator must be given in writing to a party to the proceeding if the arbitration rules require it, or if a party to the proceedings requests that the decision or reasons for it be given in writing.[93]
90 An arbitrator may reconsider a decision if new information becomes available after the arbitrator makes a decision, and in that event the arbitrator may vary or revoke the decision previously made, or make any further decision as the arbitrator considers appropriate.[94]
91 Except as the WC Act provides, a decision of an arbitrator is final and binding on the parties to it and is not subject to an appeal or judicial review.[95] Appeals are permitted by the WC Act against a decision of an arbitrator to the District Court, with the leave of that Court.[96] A party may appeal a decision of the District Court to the Court of Appeal, but the appeal must relate to a question of law and the leave of the Court of Appeal must be obtained.[97]
92 Decisions of an arbitrator may be enforced in courts of competent jurisdiction.[98]
93 Applications A1539 and A11258 were applications by Ms Kezic for an arbitrator to arbitrate a dispute concerning her entitlement to weekly payments of workers' compensation.
94 The provisions to which I have referred support the conclusion that an arbitrator under the WC Act adjudicates disputes between parties, determines the parties' rights and liabilities according to the provisions of the WC Act, does so by conducting hearings (whether involving oral evidence or on the papers) in which the parties have the right to legal representation, to examine witnesses and make submissions, is required to afford procedural fairness to the parties to the dispute and other interested parties, is required to provide reasons, and whose decisions are subject to a right of appeal. These are all incidents of the exercise of judicial power. Although arbitrators do not enforce their own determinations, it is not essential to the exercise of judicial power that they do so.[99] The important point is that determinations of an arbitrator may be enforced in competent courts.
95 Having regard to their adjudicative functions, and to their powers and the manner in which they are exercised (which in my view are judicial powers), arbitrators under the WC Act can be characterised as 'tribunals' for the purposes of the VPR Act.
96 Accordingly, in my view, applications A1539 and A11258 which were dealt with by arbitrators pursuant to the WC Act were 'proceedings' for the purposes of the VPR Act.
97 I turn, next, to consider whether applications A1539 and A11258 were 'vexatious proceedings' for the purposes of the VPR Act.
98 The first basis on which SJOG contended that applications A1539 and A11258 were vexatious proceedings was that Ms Kezic effectively sought to relitigate issues determined in Arbitrator McCahon's Decision, with the result that those proceedings were an abuse of process.
99 One example of an abuse of process will arise from an attempt to relitigate what has already been decided. In determining whether fresh legal proceedings constitute an attempt to relitigate what has already been decided, it is to the substance of the matter to which regard must be had, and not its form.[100]
100 Having carefully considered the evidence before the Court, I am not persuaded that it can be said that applications A1539 and A11258 simply sought to re-litigate what had already been determined by Arbitrator McCahon. I have reached that conclusion for two reasons. First, it is apparent that while there may have been an overlap between the claim determined by Arbitrator McCahon and the dispute said to be the subject of applications A1539 and A11258, those proceedings were not entirely coextensive. In particular, both applications A1539 and A11258 sought workers' compensation in respect of different, or additional, injuries (namely shoulder injuries or psychological sequelae) as compared with the wrist injuries the subject of the First Claim, albeit that those injuries were said to be related to the wrist injuries the subject of Arbitrator McCahon's Decision.
101 Secondly, the contention that applications A1539 and A11258 were vexatious in nature, was considered, and rejected, by Arbitrator Rutherford, in the context of an application by SJOG that Ms Kezic should be ordered to pay SJOG's costs following the dismissal of applications A1539 and A11258. That application for costs was made on the basis that Ms Kezic's applications 'were either frivolous or vexatious, or made without proper justification'.[101]
102 Arbitrator Rutherford dismissed that costs application. He did so because he was not persuaded that applications A1539 or A11258 were frivolous or vexatious. It is appropriate to quote the Arbitrator's reasons at some length. He said:[102]
... I can only really form a view of whether the application was frivolous or vexatious based on the documents and to some extent, maybe in the form of the way this matter has been conducted. And I'm unable to form that view that it's either frivolous or vexatious. The central issue here I think ... is whether Ms Kezic did or did not suffer a right shoulder injury at about the time of the wrist injury. It's a question of fact. There is an arguable case, based on the evidence, whether it's thin or little doesn't mean that the application was frivolous, and I'm not at this stage forming a view on whether the evidence was thin or little but taking it at the highest ... I will not say it's frivolous or vexatious, certainly it's not frivolous. I think the application was made on the basis that at least, Ms Kezic believes that she has injured her shoulder, whether that belief was based correctly or not, she says critically that she informed a person or persons within the respondent's employ that she had injured her shoulder, had hurt her shoulder or had a shoulder injury at about the time of the wrist injury, that's denied ... but that's an issue of fact that can only be determined once all the evidence has been heard. Unfortunately that's not the case here so I'm really in a position where I think it's improper to make a finding that it's frivolous, vexatious, ... . We have here a selfrepresented party. Ms Kezic is not legally trained, she doesn't have the ability to rely on counsel or an advocate. She may be poor at describing her case. She may not indeed have described her case properly. She certainly is insistent in promoting her case throughout the number of years that these proceedings have been on foot. But I don't see the way in which it's been conducted, nor the basis of the case to be the same as or amount to vexatious. ... the submissions say that this case had very little if any chances of success, and also, because of previous decisions seeking to reventilate. My problem with that submission ... is this: Although there may be some merit to that, nonetheless, the application was for weekly payments from a date after the payments were discontinued. And on its face there's nothing wrong with that in the Act because the Act contemplates that proceedings of this nature can be made. Now, would some of the evidence be similar in both proceedings? The answer to that is probably yes, because there's a commonality in the evidence. Doesn't mean to say, though, that it amounts to reventilation. Some issues, some findings of fact may be the subject of issue estoppel, unfortunately it wasn't finally determined. And yes, there may be some aspects of Arbitrator McCahon's decision that are final, in the sense that's recognised in matters of issue estoppel. But it still doesn't stop an applicant from then saying, alright, well, that might be the case, and payments stop, but I've still got the incapacity and still be entitled to run an application. Yes, there should be changed circumstances ...but again I'm erring on the side of caution here in relation to the difficulties a selfrepresented party has to run a case of this difficulty. This is a technical jurisdiction, it's a difficult jurisdiction to run a case, and just because it's not evident from the papers that there's any, or lack, or absence of changed circumstances doesn't mean to say that as the case progressed, that that might not have been the case. And in the end, even if the evidence would be against Ms Kezic and the case may be dismissed, to say that occurred still doesn't lead me to the conclusion that the proceedings were vexatious, nor do I conclude that either case was without proper justification.
103 The Arbitrator was clearly very familiar with the content of each of applications A1539 and A11258, with the overlap between them, and with the manner in which those applications had been conducted by Ms Kezic. It is also apparent that in expressing these views, Arbitrator Rurtherford had regard to the documents before him (which encompassed all of the material upon which SJOG and Ms Kezic had intended to rely at the arbitration). In those circumstances, I am not persuaded that it is now appropriate for this Court to characterise applications A1539 and A11258 as an abuse of process, on the basis that they sought to relitigate issues determined in Arbitrator McCahon's Decision.
104 I turn, next, to SJOG's contention that Ms Kezic's 'abandonment' of the hearing of applications A1539 and A11258 demonstrated that she had instituted or conducted those proceedings to harass or annoy SJOG. The evidence does not support that conclusion. The limited information available to the Court suggests that Ms Kezic attended the arbitration hearing before Arbitrator Rutherford apparently ready to proceed, but that she declined to participate further in the arbitration, following a ruling by the arbitrator with which she did not agree. In circumstances where it appears that Ms Kezic had, at least initially, intended to participate in the arbitration, I do not see how it can be said that her subsequent decision not to continue to participate in the arbitration was evidence that she had conducted applications A1539 and A11258 to harass and annoy SJOG rather than to seek the genuine resolution of any dispute. Furthermore, the observations made by Arbitrator Rutherford above militate against that conclusion.
105 Accordingly, I am not persuaded that applications A1539 and A11258 of themselves constitute 'vexatious proceedings' for the purposes of the VPR Act.
(iv) Interlocutory applications made by Ms Kezic in the course of application A1539, namely IA 10, IA 13 and IA 19
106 Between 12 August 2012 and 2 November 2012, Ms Kezic filed 11 interlocutory applications pertaining to either or both of applications A1507 and A1539 (which, until that point, had been progressed together).[103] From that point until 28 April 2014, Ms Kezic filed a further 23 interlocutory applications, all of which pertained to application A1539 and/or to application A11258.
107 SJOG does not contend that all of those interlocutory applications can be described as vexatious proceedings. Indeed, counsel for SJOG acknowledged that many of those interlocutory applications were entirely orthodox. (Some of them, for example, were brought to obtain leave to file further medical evidence in support of Ms Kezic's applications.) However, SJOG submitted that three of the interlocutory applications filed by Ms Kezic could properly be described as vexatious proceedings. Those were referred to by SJOG as IA10, IA13 and IA19.
108 In IA10, made on 2 November 2011, Ms Kezic sought an order permitting her to file documents in support of applications A1507 and A1539. The documents the subject of IA10 included some progress medical certificates, some correspondence between Ms Kezic and SJOG, copies of employment contracts, and also included a letter dated 1 November 2012 to the Registrar of the WCAS, from Ms Kezic, together with its annexures. In that letter, Ms Kezic set out various allegations of breaches by SJOG of the WC Act and alleged that SJOG and its legal representatives had sought to conceal information about the whereabouts of witnesses.
109 On 9 February 2013, Registrar Melville granted IA10 insofar as Ms Kezic sought leave to file the progress medical certificates. However, IA10 was otherwise dismissed.[104]
110 In IA13, made on 30 November 2012, Ms Kezic also sought leave to file further documents in application A1539. Those documents were a number of medical certificates and reports, and a number of letters from SJOG to Ms Kezic. One of the letters pertained to the payment of two days of sick leave to Ms Kezic on a without prejudice basis. Ms Kezic submitted that the letter showed that SJOG 'refused to honour the relevant medical certificate'.[105]
111 On 19 February 2013, Registrar Melville granted IA13 with respect to the medical certificates and reports. The application was otherwise dismissed.[106]
112 IA19 was made by Ms Kezic on 15 February 2013.[107] It was an application for leave to adduce into evidence an audio compact disc (CD) of a teleconference held between the parties on 19 February 2013. According to IA19, Ms Kezic alleged that the CD revealed that a lawyer for SJOG gave false information to the arbitrator when making his submissions with respect to a witness statement. The allegedly false statement concerned whether the witness was employed by SJOG at the time that Ms Kezic made her initial incident report for her wrists injury in 2009. Ms Kezic alleged that the lawyer had claimed that the witness was not employed at that time, when Ms Kezic claimed that, in fact, they were.
113 On 11 February 2014, Arbitrator Powles determined IA19. She dismissed the application for leave to file the audiorecording of the hearing conducted by telephone on 19 February 2013. No reasons were provided in respect of that decision.[108]
114 In so far as IA10 is concerned, SJOG submitted that Ms Kezic's attempt to obtain leave to adduce documentary evidence apart from medical certificates 'was pursued without reasonable ground and otherwise instituted to harass and annoy [SJOG] within the meaning of s 3(b) and (c) of the VPR Act'.[109] In relation to IA13, SJOG submitted that Ms Kezic's application for leave to adduce the letter regarding the payment of sick leave was pursued without reasonable ground within the meaning of 3(c) of the VPR Act.
115 Finally, counsel for SJOG submitted that the allegations made by Ms Kezic in IA19 were 'scandalous and also not relevant to issues in dispute and pursued without reasonable ground within the meaning of s 3(d)' of the Act.[110]
116 For the reasons outlined above at [94] [95], IA10, IA13 and IA19 were proceedings before a 'tribunal'. (I note that the decisions in respect of IA10 and IA13 were not made by an arbitrator under the WC Act, but by the Registrar of the WCAS. However, under the WC Act, the Registrar 'has, and may perform, all the functions of an arbitrator'.[111] In my view, in making the decisions in respect of IA10 and IA13, the Registrar was exercising the functions of an arbitrator, and was thus able to be characterised as a 'tribunal' for the purposes of the VPR Act.)
117 I also note for completeness that interlocutory proceedings fall within the definition of 'proceedings' in the VPR Act.
118 The next question is whether IA10, IA13 and IA19 fall within the definition of 'vexatious proceedings'. I am satisfied that IA19 was instituted without reasonable ground. Proceedings instituted or pursued without reasonable grounds will include applications or proceedings which have absolutely no prospect of success.[112] IA19 was an application of that kind. The nature of the allegation said to be supported by the CD which was the subject of IA19 does not appear to have been capable of having any relevance whatsoever to the arbitration of the dispute the subject of A1539.
119 IA10 and IA13 raise a more difficult issue because those applications were partly successful.
120 In relation to IA10, on the one hand, the allegations made in the letter which Ms Kezic sought leave to adduce appear to have pertained to the proceedings before Arbitrator McCahon. Those allegations included complaints about evidence given by witnesses in that arbitration and the content of documents which appear to have been relied upon for the purposes of that arbitration, which Ms Kezic alleged were misleading or false. Those allegations do not appear to have been of any relevance to the arbitration of the dispute the subject of A1539. On the other hand, in IA10 Ms Kezic also sought leave to adduce medical certificates, about which SJOG made no complaint.
121 Nothing in the definition of 'proceedings' in s 3 of the VPR Act suggests that a proceeding can be considered a 'vexatious proceeding' if part of that proceeding, but not all of it, has no reasonable ground. Difficult questions would arise if that were so. Even if one or more parts or planks of a proceeding is wholly unmeritorious, the fact that another part or plank of the proceeding succeeds must, in my view, exclude any basis for concluding that the proceeding overall was brought 'without reasonable ground'. Accordingly, I am not persuaded that IA10 can be said to have been instituted without reasonable ground.
122 SJOG also says that IA10 was a vexatious proceeding because it was instituted to harass or annoy SJOG. There may be cases where a proceeding which is not wholly unsuccessful, nevertheless involves so many wholly unmeritorious parts or planks as to warrant the conclusion that the proceeding was 'conducted in a manner so as to harass or annoy'. However, even if such an argument might be available in an appropriate case, I am not persuaded that it is open here. In IA10, Ms Kezic sought leave to adduce medical certificates (which leave was granted) and to adduce a letter to the Registrar and six other documents (which leave was refused). The documents for which leave was refused were not of such a nature that the application for leave to adduce them could of itself be said to amount to an attempt to harass or annoy SJOG. I am therefore not persuaded that it can be said that IA10 was a proceeding which was instituted to harass or annoy SJOG.
123 In relation to IA13, SJOG contends that this application was made without reasonable ground. As this application was largely successful (in that leave was granted to Ms Kezic to adduce the medical certificates and reports) for the reasons outlined above I am not persuaded that IA13 can be said to have been pursued without reasonable ground.
124 Consequently, in my view, IA19 was a 'vexatious proceeding' within the meaning of that term in s 3 of the VPR Act, but IA10 and IA13 were not.
125 Had application IA19 been relied on in isolation, it would not, in my view, have justified an order under s 4(1)(d) of the VPR Act. However, IA19 can be taken into account in conjunction with the other proceedings relied upon by SJOG to support its claim that Ms Kezic has pursued vexatious proceedings against it.
(v) District Court Appeals 42, 43, 44 and 55 of 2014
126 Ms Kezic sought to appeal to the District Court against five other decisions made by arbitrators in respect of interlocutory applications brought in the course of A1539 or A11258. Those interlocutory applications were:
127 Each of those appeals was heard together before Stone DCJ in the District Court over three dates in June and November 2014.
128 On the first day of the hearing in the District Court, it appears that there was some confusion as to Ms Kezic's grounds of appeal. Ms Kezic was given leave to amend her grounds of appeal in Appeal 42/2014 and in Appeal 43/2014. After the first day of hearing and prior to the second and third days of hearing of the appeals, Ms Kezic filed amended grounds of appeal in all four appeals. At the hearing on 27 November 2014, Ms Kezic was granted leave to amend her grounds of appeal in terms of her filed amended grounds and the appeal proceeded on the basis of those amended grounds. The lengthy appeal hearing appears to have been attributable, at least in part, to the fact that Ms Kezic's written submissions raised 'a multitude of issues which [made] it difficult to relate them to specific grounds of appeal'.[113]
129 Appeals 42 and 43 of 2014 were allowed in part as a result of concessions made by SJOG. The remainder of the grounds in those appeals, and appeals 44 and 55 of 2014 in their entirety, were dismissed.[114]
130 In his reasons for decision in respect of the appeals, Stone DCJ set out the issues the subject of each of the appeals. The following summary is drawn from his Honour's reasons.
131 This appeal pertained to a decision by Arbitrator Powles to refuse IA28 (an interlocutory application brought in A1539) in which Ms Kezic sought leave to file late, or further, evidence. The evidence the subject of that application comprised: a copy of the SJOG payrun sheets for Ms Kezic (payrun sheets); a copy of an extract from SJOG's written submissions filed in the appeal before Curthoys DCJ in St John of God Health Care Inc v Kezic; a copy of the transcript of the proceedings before Curthoys DCJ; and a copy of a letter from the solicitors for SJOG to a third party, Ms Brown. (It appears that Ms Kezic regarded Ms Brown as a necessary witness in the arbitration.) It also appears that in the course of the appeal, Ms Kezic sought that the District Court take disciplinary action against the solicitors for SJOG in respect of the letter from the solicitors to Ms Brown.
132 At the hearing of the appeal, counsel for SJOG conceded that Ms Kezic should be permitted to rely upon the payrun sheets because a copy had been attached to a witness statement filed by SJOG in the proceedings.
133 Stone DCJ concluded that it was in the interests of justice that leave to appeal be granted and the appeal be allowed insofar as it related to the decision by Arbitrator Powles to refuse the application in IA28 to the extent that it concerned leave to file the payrun sheets. However, his Honour concluded that there was no error of law involved in the decision by Arbitrator Powles to refuse Ms Kezic's application for leave to file the remaining documents.
none of these documents has any bearing on the arbitration hearing. If Ms Kezic requires Ms Brown to attend the arbitration hearing as a witness she could summons her. I am also of the view that the request by Ms Kezic for this court to take disciplinary action against the solicitors for [SJOG] over their letters to Ms Brown is incompetent, without merit and beyond the scope of the appeal. Accordingly, I refuse leave to appeal and dismiss the appeal insofar as it concerns the aforementioned matters.
135 This appeal concerned the decision of Arbitrator Powles to refuse an interlocutory application (IA29) brought by Ms Kezic in A1539. In IA29, Ms Kezic sought leave to file copies of various documents, namely letters from Ms Kezic to the Arbitrator; a copy of a letter from the Arbitrator to Ms Kezic; a copy of part of the transcript of proceedings before Arbitrator McCahon in respect of the First Claim, a copy of a document described as 'Freshstart Progress Report' with respect to Ms Kezic; a copy of the Arbitrator's decision to refuse another interlocutory application brought by Ms Kezic for leave to file a copy of various pay advice slips for Ms Kezic; and a copy of orders made by Arbitrator Powles concerning an application by Ms Kezic for the production, by SJOG, of documents and material.
136 At the hearing of the appeal, Ms Kezic abandoned the grounds that concerned the pay advice slips as the contents of those documents were incorporated into the payrun sheets the subject of Appeal 42 of 2014.
137 In addition, counsel for SJOG conceded that for the purposes of the arbitration hearing, Ms Kezic may need to refer to a copy of the Freshstart Progress Report and that Ms Kezic should be entitled to rely upon that document.
138 Stone DCJ concluded that it was in the interests of justice that leave to appeal be granted and the appeal be allowed insofar as it pertained to the Freshstart Progress Report. However, his Honour concluded that no error of law had been made by Arbitrator Powles when she refused Ms Kezic's application for leave to file the other documents the subject of IA29. His Honour held that[116]
none of these documents, as such, is evidence for the purposes of the arbitration hearing. I am also of the view that the request by Ms Kezic for this court to address or request Arbitrator Powles to address the correspondence between Ms Kezic and Arbitrator Powles is incompetent, without merit and beyond the scope of the appeal.
139 Insofar as the appeal concerned orders made at a directions hearing by Arbitrator Powles in relation to the production of documents and materials, Stone DCJ held that the orders made by Arbitrator Powles at the directions hearing did not disclose any error of law.
140 It appears within the course of the hearing of the appeal, Ms Kezic had submitted that the District Court should determine the jurisdictional issue that had been raised by SJOG in respect of the arbitration of A1539 (see [62] [64] above). Stone DCJ held that 'Ms Kezic's contention that this court should determine the jurisdictional issue before there has been a hearing by an arbitrator on that issue is incompetent, without merit and beyond the scope of the appeal'.[117]
141 This appeal pertained to two decisions made by Arbitrator Rutherford in respect of interlocutory applications brought in A11258. The first of those interlocutory applications was an application by SJOG for leave to file its reply later than the time required. The second was Ms Kezic's interlocutory application that SJOG's failure to file its reply within time be dealt with summarily (IA32).
142 A party served with an application for arbitration must lodge a reply to the application within 14 days after the service of the application.[118] Stone DCJ noted that SJOG's reply was six days late. Its explanation for failing to lodge the reply on time was a solicitor oversight.[119] Stone DCJ noted that where a party does not comply with the requirement to lodge its reply to an application for arbitration within time, an arbitrator has a discretion to grant an extension of time pursuant to rule 4 of Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) (WC Rules), or, alternatively, to determine the application for arbitration as if that party did not dispute any part of the application for arbitration, pursuant to rule 28.[120] Arbitrator Rutherford granted SJOG leave to file the reply out of time, and refused Ms Kezic's application that he proceed to summarily determine the arbitration. Stone DCJ noted that in his reasons for decision, the Arbitrator had regard to factors relevant to the exercise of the discretion to allow an extension of time. Stone DCJ held that there was no error in Arbitrator Rutherford's exercise of discretion and, accordingly, his Honour refused leave to appeal and dismissed the appeal.
143 This appeal pertained to the decision by Arbitrator Rutherford to grant an interlocutory application brought by SJOG in A11258, for that matter to be heard together with A1539. Stone DCJ noted Arbitrator Rutherford's observation that the dispute in A1539
broadly concerns contentions about a claim for incapacity resulting from the original claimed wrists injury and a further alleged shoulder injury both said to have occurred on the same day in 2009. In A11258 the dispute broadly concerns contentions about a claim for the incapacity resulting from Ms Kezic's work related duties as a menu monitor during her return to work program. Bar a few weeks, the disputed period of claimed total incapacity is the same.
144 His Honour noted that Arbitrator Rutherford understood that SJOG's interlocutory application was for A11258 and A1539 to be heard together before the same arbitrator, rather than for the two arbitration hearings to proceed before different arbitrators. His Honour noted that Ms Kezic's position was that the two arbitrations should be heard separately, at different times and before different arbitrators.
145 Stone DCJ reviewed the matters taken into account by Arbitrator Rutherford and concluded that no error had been disclosed in the arbitrator's exercise of discretion, and that leave to appeal should be refused and the appeal dismissed.[121]
146 Counsel for SJOG submitted that to the extent that they were unsuccessful, these appeals were able to be characterised as vexatious proceedings for the purposes of the VPR Act. He submitted that the bases on which the appeals were dismissed demonstrated that the appeals had been pursued without any reasonable ground.
147 Proceedings instituted or pursued without reasonable grounds will include claims with unintelligible pleadings (or grounds of appeal), misconceived or hopeless appeals, and appeals which lack any legal basis.[122] However, the mere fact that the plaintiff (or appellant) fails in litigation does not demonstrate that the proceedings are vexatious. In order to reach that conclusion, it is necessary to examine the reasons given in the judgment in which the proceedings are dismissed to determine whether those proceedings are properly able to be characterised in that way.[123] As Allanson J observed in Lashansky [No 2]:[124]
Whether earlier proceedings were an abuse of process or instituted without reasonable cause may be apparent on a reading of the reasons and orders of the court ... . Findings by the court that evidence or submissions were irrelevant may go towards proof that proceedings were pursued without relevant ground, or were conducted so as to cause delay or detriment. A successful strike out application may reveal that an application was instituted without reasonable grounds, although that is not necessarily so ... . (citations omitted)
148 While it is not the case that proceedings will be characterised as vexatious only if they are utterly hopeless, nevertheless a high degree of confidence in the lack of merit of any cause of action is necessary before intervention of the Court under the VPR Act to stay or to prohibit such a proceeding would be justified.[125]
149 It is clear from the reasons for decision given by Stone DCJ that Appeals 44 and 55 of 2014 plainly had no prospects of success, or were misconceived and without merit. I am satisfied that each of those appeals was pursued without reasonable ground.
150 The position in respect of Appeals 42 and 43 is more difficult. For the reasons set out above at [121], I am not persuaded that it can be said that these appeals were instituted without reasonable grounds, because each of these appeals was partly successful (in that Stone DCJ set aside the decisions of Arbitrator Powles to refuse leave to Ms Kezic to rely on the payrun sheets, and the Freshstart Progress Report respectively).
151 Accordingly, Appeals 44 and 55 of 2014 were 'vexatious proceedings' for the purposes of the VPR Act, but the same cannot be said for Appeals 42 and 43 of 2014.
(vi) Ms Kezic's appeal against the decision of a District Court Registrar to dismiss her application to vacate the hearing of the costs applications in respect of Appeals 42 44 and 55 of 2014
152 Stone DCJ delivered his decision in respect of appeals 42 44 and 55 on 22 December 2014. SJOG then made an application for an order that Ms Kezic pay its costs of the appeals. Stone DCJ adjourned that application to a special appointment on 7 May 2015.
153 On 16 March 2015, Ms Kezic filed an application to vacate that costs hearing on the basis that she had appealed the decision of Stone DCJ to the Court of Appeal.
154 On 30 March 2015, Deputy Registrar Harman dismissed that application (the Registrar's decision).[126]
155 By a notice of appeal dated 1 April 2015, Ms Kezic appealed the Registrar's decision on the grounds that the costs hearing should be vacated or permanently stayed pending the outcome of her appeal to the Court of Appeal.
156 On 28 April 2015, Fenbury DCJ adjourned Ms Kezic's appeal against the Registrar's decision to the hearing of SJOG's costs application before Stone DCJ on 7 May 2015. On that occasion, Fenbury DCJ was strongly of the view that the application to adjourn the costs hearing should be adjourned to be heard before Stone DCJ, because Stone DCJ had been dealing with the whole of the proceedings prior to that point, including the question of costs.
157 On 7 May 2015, Stone DCJ dismissed Ms Kezic's appeal against the Registrar's decision.
158 On the same day, Stone DCJ granted SJOG's application for orders that Ms Kezic pay its costs of each of appeals 42 44 and 55 of 2014. His Honour concluded that in appeals 42 and 43, Ms Kezic was partly successful and partly unsuccessful, and accordingly he ordered that she pay 80% of SJOG's costs. In appeals 44 and 55, where she was wholly unsuccessful, Ms Kezic was ordered to pay 100% of SJOG's costs.
159 Counsel for SJOG submitted that Ms Kezic's application to adjourn the hearing of SJOG's application for the costs of the District Court appeals, and her subsequent appeal against the Registrar's decision, had no reasonable prospects of succeeding, and that those proceedings could be regarded as vexatious proceedings.
160 Ms Kezic's attempts to adjourn the costs hearing until after her appeal to the Court of Appeal was determined clearly had no prospects of success. I am satisfied that her appeal against the Registrar's decision can be said to have been instituted without reasonable ground.
161 Had this been the only basis for the application for an order under s 4(1)(d) of the VPR Act, I would not have been minded to make such an order. In the overall context of the Application, however, this 'proceeding' can be relied upon as an example of a vexatious proceedings pursued by Ms Kezic and one which demonstrates a continuing escalation of conduct by Ms Kezic involving the institution of proceedings with no reasonable ground.
162 Ms Kezic then lodged appeals in the Court of Appeal against the decisions of Stone DCJ in respect of appeals 42 44 and 55 of 2014. Those appeals were numbered CACV 18 - 21 of 2015.
163 Ms Kezic also lodged appeals to the Court of Appeal against the decisions of Fenbury DCJ to adjourn the costs hearing in respect of each of those District Court appeals to 7 May 2015 (see [156] above). Those appeals were numbered CACV 77 80 of 2015.
164 Finally, Ms Kezic also appealed the decisions of Stone DCJ to order that she pay SJOG's costs in relation to each of appeals 42 44 and 55 of 2014 (see [158] above). Those appeals were numbered CACV 81 84 of 2015.
165 SJOG says that all of those appeals were vexatious proceedings for the purposes of the VPR Act.
166 Ms Kezic required leave to appeal in respect of each of these appeals. The Court of Appeal noted that the decisions which were the subject of the appeals were interlocutory decisions concerning practice and procedure in arbitration proceedings conducted by arbitrators under the WC Act.[127] The Court noted that the Courts have consistently stated that 'special restraint must be exercised when dealing with appeals in respect of interlocutory orders concerning practice and procedure'.[128] The Court noted that 'the need for appellate restraint applies equally, if not more so, to appeals from intermediate appellate decisions concerning practice and procedure'.[129] The Court of Appeal concluded that in each appeal, the applications for leave to appeal should be dismissed 'on the basis that [Ms Kezic] has not established that any substantial injustice would be done by leaving the primary judge's decision unreversed, and the circumstances of the case do not justify the grant of leave'.[130]
(a) the refusal of leave for certain 'evidence' to be filed late;
(b) Stone DCJ's dismissal of a request to 'address' correspondence between Ms Kezic and Arbitrator Powles;
(c) Stone DCJ's finding that no error of law was disclosed by leave being granted for:
(i) Ms Hudson (the head of insurance for SJOG) to attend a directions hearing; and
(d) the grant of leave to SJOG to file a late reply; and
(e) the grant of an application for matters in A1539 and A11258 to be heard together.
168 As to these matters, the Court of Appeal concluded:[133]
As to (a) ... above, it has not been established that the 'evidence' sought to be adduced would be admissible, let alone of any potential cogent benefit to [Ms Kezic]. As to (b) ... above, the function of the judge in an appeal is not to 'address' correspondence. As to (c)(i) ... above, this is a conventional procedural matter involving no prospect of prejudice. As to (c)(ii) ... above, the mere filing of the affidavit does not create prejudice. Any contest as to its merits can be made at trial. The matter in (d) is merely procedural which will allow a contest on the issues at trial. The matter in (e) ... above is also a conventional procedural matter with no prospect in the circumstances of causing substantive prejudice to [Ms Kezic].
In addition, and moreover, none of the grounds of appeal arguably indicates that the decision below is wrong or at least attended with sufficient doubt to justify the grant of leave.
169 The Court of Appeal went on to address, briefly, the 29 points raised by Ms Kezic's grounds of appeal. I do not propose to deal with all of those in detail here. It suffices to say that the Court concluded that either the points raised had 'no substance',[134] that Ms Kezic's complaints were 'misconceived insofar as she contends that somehow the primary judge should have upheld the appeals against the arbitrators' interlocutory decisions on the basis that they had been breaches of the Criminal Code by [SJOG] or professional misconduct by [SJOG]'s solicitors, or that matters allegedly required investigation by the police ... [and that] neither of those matters was shown to be arguable in any event. [Ms Kezic's] complaints were, and are, selfevidently misconceived, and no further reasons were required',[135] that 'no arguable error of law is disclosed',[136] that 'no arguable question of law, or at least none with any reasonable prospect of success' was raised,[137] or that the point was 'misconceived and discloses no arguable error of law'.[138]
170 These eight appeals were dealt with by the Court of Appeal in reasons for decision published on 6 November 2015.[139]
171 The grounds of appeal relied upon by Ms Kezic in respect of her appeals against the decision of Fenbury DCJ were, in summary, that his Honour erred in law by failing to determine the matters before him and instead adjourning them to be heard by Stone DCJ; that his Honour erred in law by refusing Ms Kezic permission to inspect certain documents and the submissions which had been provided to the District Court by counsel for SJOG; and that his Honour 'misrepresented' himself and erred in law by stating that Ms Kezic's applications were incompetent and in failing to give reasons for taking that view.
172 In determining these appeals, the Court of Appeal observed that the contentions raised by Ms Kezic had, at their centre[140]
the principal proposition that Fenbury DCJ was personally obliged to hear and determine the appeal from the deputy registrar. That is incorrect. He was not obliged to hear and determine that appeal, and the appellant had no right, constitutional or otherwise, to require Fenbury DCJ to hear and determine that appeal. ... It was entirely appropriate in all the circumstances for Fenbury DCJ to refer the appeal to Stone DCJ. Stone DCJ had heard and determined the substantive appeals. He had listed the question of costs associated with those appeals to be determined by him at a hearing on 7 May 2015. Any successful appeal against the deputy registrar's decision would have had the effect of overturning that interlocutory decision. The appellant's grounds of appeal mischaracterise and misconceive the nature of Fenbury DCJ's decision.
173 The Court of Appeal observed that none of the grounds of appeal raised by Ms Kezic in relation to the decision of Fenbury DCJ had a reasonable prospect of success. In addition, the Court observed that[141]
even if any of the grounds of appeal were arguable, we would not grant leave to appeal. No substantial injustice would arise if the decision were left unreversed because the question of whether the costs should be determined at the hearing on 7 May 2015, or whether the hearing should be vacated, was heard and determined by a judge, namely Stone DCJ, on 7 May 2015.
174 Insofar as Ms Kezic sought to appeal against the decisions of Stone DCJ to order that she pay SJOG's costs on the substantive appeals and dismissing Ms Kezic's application to vacate the hearing as to costs, the Court of Appeal noted that Stone DCJ approached the adjournment appeal as a new hearing of the application to vacate the costs hearing, which should be decided afresh. He took the view that there was a need for finality in respect of the costs orders which should be made. His Honour concluded that Ms Kezic had failed to demonstrate that she would be prejudiced, or suffer a serious injustice, if the costs issue was determined on 7 May 2015, given that she had been aware since 22 December 2014 that she was required to file submissions.[142]
175 Ms Kezic advanced a variety of grounds of appeal against the decision of Stone DCJ in respect of the costs of the appeals. One of the issues raised by the grounds of appeal was the proper construction of s 267 of the WC Act, and whether that section precluded his Honour from making the costs orders in question.[143] The Court concluded that there was no arguable error in his Honour's construction of s 267(1) of the WC Act.[144] Further, in respect of appeals 42 and 43 of 2014, the Court concluded that s 267(1) did not preclude the making of an order that Ms Kezic pay 80% of the costs of those appeals, because the order in each case was not made '"on the ground" that the appeal was successful, but on the ground that, for the most part, the appeal was unsuccessful'.[145] The Court of Appeal also concluded that s 267(2) of the WC Act did not preclude the making of costs orders against Ms Kezic. Further, the Court concluded that, insofar as Ms Kezic alleged that Stone DCJ had the power to award costs but that his discretion miscarried, no arguable error was disclosed.[146]
176 In respect of the other grounds of appeal, the Court of Appeal concluded that each of those grounds either 'has no arguable prospect of success',[147] revealed no arguable error,[148] '[did] not raise any question of law, or at least any arguable question of law',[149] or '[raised] no, or no arguable, question of law',[150] and that the grounds had 'no reasonable prospects of success'.[151]
177 Accordingly, the Court of Appeal concluded that none of the grounds of appeal in CACV 77 80 and 81 84 of 2015 had any reasonable prospects of success and that the appeals in CACV 77 to 80 of 2015 would not, in any event, warrant the grant of leave to appeal. Each of the appeals was, therefore, dismissed.[152]
178 Counsel for SJOG submitted that the reasons for decision of the Court of Appeal established that each of appeals CACV 18 21 of 2015 was instituted and pursued without a reasonable ground within the meaning of s 3(c) of the VPR Act, and in respect of some of the points raised by Ms Kezic, that those points were instituted to harass, or annoy or were brought for a wrongful purpose within the meaning of s 3(b) of the Act.[153]
179 In my view, the reasons for decision of the Court of Appeal, and its refusal to grant leave to appeal, confirm that the appeals brought by Ms Kezic against the decision of Stone DCJ in appeals 42 44 and 55 of 2014 were instituted without reasonable ground. Those proceedings therefore constituted 'vexatious proceedings' for the purposes of the VPR Act. It is not necessary to decide whether these appeals were also instituted to harass or annoy SJOG.
180 Counsel for SJOG similarly submitted that each of the grounds of appeal in appeals CACV 77 80 of 2015 and CACV 81 84 of 2015 were instituted and pursued without reasonable ground within the meaning of s 3(c) of the VPR Act. In my view, it is apparent from the reasons of the Court that those appeals were instituted without reasonable grounds, and therefore constituted 'vexatious proceedings' for the purposes of the VPR Act.
(viii) Applications by Ms Kezic for special leave to appeal to the High Court of Australia against the decisions of the Court of Appeal on the appeals in (vii) above
181 Ms Kezic sought special leave to appeal to the High Court against the decisions of the Court of Appeal in relation to two of the appeals from the decision of Stone DCJ in December 2014. The first concerned Arbitrator Rutherford's decision to extend the time in which SJOG could file and serve its reply, and the second challenged Arbitrator Rutherford's decision to order that A1539 and A11258 be heard together.[154]
182 The High Court refused both applications for special leave to appeal, on the basis that:[155]
There is no reason to doubt the correctness of the decision below, which was reached by the Court of Appeal through the application of wellsettled principles. The proposed appeals to this Court would enjoy no prospect of success.
183 Ms Kezic also sought special leave to appeal against orders made by the Court of Appeal in dismissing appeals from the costs orders made by Stone DCJ on 7 May 2015. The High Court refused to grant special leave to appeal in those appeals on the ground that:[156]
None of the applicant's proposed grounds of appeal enjoys sufficient prospects of success to warrant the grant of special leave to appeal and no question of principle would fall for determination in any of these applications. To the extent that the applicant relies on complaints advanced below, she has not advanced any reason to doubt the correctness of the Court of Appeal's rejection of those complaints.
184 Counsel for SJOG submitted that the applications were instituted without reasonable grounds within the meaning of s 3(c) of the VPR Act. The reasons for decision given by the High Court, brief as they are, support the conclusion that each application for special leave to appeal was instituted without reasonable ground.
185 Had these applications for special leave to appeal been the only proceedings on which SJOG relied in the Application, I would not have made an order under s 4(1)(d) of the VPR Act. However, viewed within the context of Ms Kezic's conduct as a whole, I am satisfied that they support the conclusion of an escalating pattern of conduct by Ms Kezic in instituting vexatious proceedings, and that that is a consideration which is of some significance in the exercise of discretion whether to grant the relief sought.
186 For the reason set out above, I do not accept that each of the proceedings on which SJOG relied constituted 'vexatious proceedings' for the purposes of the VPR Act. I do, however, accept that a number of those proceedings - namely IA 19, appeals 44 and 55 of 2014 (to the District Court), Ms Kezic's appeal against the Registrar's decision, her appeals to the Court of Appeal (CACV 18 21 of 2015, 77 80 of 2015, and 81 84 of 2015), and Ms Kezic's applications for special leave to appeal to the High Court - can properly be characterised as 'vexatious proceedings'.
187 Accordingly, I am satisfied that SJOG has established that Ms Kezic has 'instituted or conducted vexatious proceedings' for the purposes of s 4(1)(a) of the VPR Act.
188 SJOG also relied, to some extent, on s 4(1)(b) of the VPR Act and contended that the evidence established that it was likely that Ms Kezic will institute or conduct vexatious proceedings in the future.[157] It was apparent that SJOG was particularly concerned that because the arbitrations in A1539 and A11258 were not dismissed on the merits, 'it may be open for [Ms Kezic] to commence fresh proceedings'.[158] Counsel for SJOG acknowledged that it is likely that 'such an application will face an application to dismiss on the basis of abuse of process ... however, the applications not having been determined on the merits may still be able to be revived'.[159]
189 The contention that it is 'likely' that Ms Kezic will institute or conduct vexatious proceedings against SJOG in the future is not without its difficulties. The 'proceedings' on which SJOG relied for the purposes of its Application have all concluded. Furthermore, it is more than one year since Ms Kezic last took any action in respect of those proceedings before any court or tribunal. In addition, it is now almost six years since Ms Kezic's employment with SJOG was terminated. Any attempt by Ms Kezic to commence fresh workers' compensation proceedings would be well outside the 12month period in which the WC Act contemplates that applications for compensation should be made. Were a further application for compensation to be made, it would be likely to raise serious questions about potential prejudice to SJOG. Finally, given the intervening period, it seems very likely that any other application or appeal arising from the proceedings to which I have referred above would be well out of time.
190 However, SJOG's concern that Ms Kezic might institute fresh proceedings against it in the future was not without some foundation. On 1 June 2016, Ms Kezic wrote to Arbitrator Rutherford's associate to advise:[160]
I have in my possession a medical certificate certifying that I was unfit to continue to participate in the arbitration proceedings. When my husband and I recover from the shock of the injustice which had transpired during the arbitration hearing on 23 May 2016 which forced my husband to pack up all the documents, and on the basis that a decision on the merits of each application was not made by Arbitrator Rutherford, I understand that it is still open for me to resubmit the applications to WorkCover WA for a final determination on the merits of each application.
191 That correspondence suggests that there is a likelihood that Ms Kezic would seek to resubmit applications to WorkCover WA for a determination of the merits of each of applications A1539 and A11258.
192 For completeness, I note that SJOG relied upon information discovered in the course of an online search for web pages referring to Ms Kezic. Mr Singh deposed that he had found a website on which it appeared that Ms Kezic had made scandalous comments critical of lawyers and judicial officers in this State.[161] I do not place any weight on those comments. They do not expressly suggest that Ms Kezic intends to pursue further proceedings against SJOG in any court or tribunal.
193 It is not necessary to reach a final view about the likelihood that Ms Kezic may institute further vexatious proceedings against SJOG. The Court's jurisdiction to make orders under s 4(1)(d) of the VPR Act is not conditioned on a finding under s 4(1)(b) of the VPR Act that it is likely that a person will institute or conduct vexatious proceedings. Rather, the terms of s 4(1) suggest that the Court may make orders staying proceedings (under s 4(1)(c)), or orders prohibiting a person from instituting proceedings in the future (under s 4(1)(d)), if the Court is satisfied either that the person has instituted or conducted vexatious proceedings in the past (s 4(1)(a)) or that it is likely that the person will do so in the future (s 4(1)(b)).
194 I turn next to the question of whether and if so, what, relief should be granted in this case.
8. Whether, and if so, what, relief under s 4(1) of the VPR Act should be granted (a) General principles concerning the exercise of the discretion to grant relief
195 If the Court is satisfied that a person has instituted or conducted vexatious proceedings or that it is likely that a person will institute or conduct vexatious proceedings, the Court has a discretion under s 4(1) of the VPR Act as to whether to make an order under s 4(1) and, if so, what order to make. In the exercise of that discretion, a number of matters will potentially be relevant. One matter of relevance is that the right of an individual to commence proceedings to enforce or defend his or her rights is one of the fundamental rights of citizens in a free society. To limit that right represents a major restriction on the liberty of the individual for which there must be a proper and adequate justification.[162] Of course, an order made under s 4(1)(d) of the VPR Act does not entirely remove the right to issue proceedings. The person the subject of the order may still apply for leave to access the courts. Nevertheless, the making of such an order restricts the rights of that person and the powers conferred by s 4(1) must, therefore, be exercised with caution.[163]
196 Another factor of relevance to the exercise of the Court's discretion is the purpose of the VPR Act. As Le Miere J observed in Tey:[164]
There are two principal social mischiefs which vexatious litigant legislation traditionally addresses. The first is the waste of scarce and valuable judicial resources on barren and misconceived litigation to the detriment of other litigants with real cases to try. The second is the harassment of litigant's opponents by the worry and expense of vexatious litigation.
197 As I have pointed out, in the present case I have concluded that some applications instituted by Ms Kezic namely IA19, the appeal against the Registrar's decision and the applications for special leave to appeal to the High Court were 'vexatious proceedings' because they were instituted without reasonable ground. Had any of those particular proceedings, individually, been the sole basis for the present Application, I would not have been inclined to grant relief. Nevertheless, it is appropriate to consider the overall effect of all of the proceedings which I have found to be vexatious proceedings under the VPR Act.
198 In approaching the question of relief in this case, I have borne in mind that Ms Kezic was a litigant in person in respect of each of the applications discussed above. The difficulties of conducting litigation without the benefit of legal assistance should not be understated. Having said that, the fact that a person is not legally represented does not entitle them to bring proceedings without reasonable grounds, much less to do so repeatedly.
199 I am satisfied that an order should be made under s 4(1)(d) of the VPR Act in this case, for the following reasons.
200 I have found that Ms Kezic instituted numerous proceedings against SJOG without reasonable grounds. When Ms Kezic's institution of those proceedings is viewed overall, it can be seen that Ms Kezic's pursuit of numerous interlocutory appeals, first to the District Court, then to the Court of Appeal, and then to the High Court, constituted a significant escalation of her litigation concerning her workers' compensation claims. Furthermore, those appeals originally concerned a number of interlocutory applications which do not appear to have been of any particular significance in the conduct of arbitrations A1539 and A11258 as a whole.
201 The number, and escalation, in the proceedings instituted by Ms Kezic against SJOG without reasonable ground supports the conclusion that the point has now been reached where Ms Kezic's conduct of those proceedings amounts to an 'intolerable burden' upon the time, resources and procedures of the courts. It is apparent that the appeals to the District Court and to the Court of Appeal alone have involved days of hearing time, not to mention the significant work that takes place outside of Court in preparing for a hearing, and in preparing reasons for decision. In addition, it cannot be doubted that responding to those proceedings was also a significant burden on SJOG.
202 However, while I have concluded that an order should be made under s 4(1)(d) of the VPR Act, in my view, the relief sought by SJOG in its originating motion is far too widely drawn. An order in the terms sought would constitute a very significant, and unjustified, restriction on Ms Kezic's liberty to commence legal proceedings. Counsel for SJOG conceded as much at the hearing of the Application. Consequently, in my view, the relief which should be granted should be confined to an order which prohibits Ms Kezic from instituting proceedings arising from, or concerning, any application for workers' compensation in connection with her employment by SJOG, or any related appeal or application, without the leave of the court or tribunal concerned.
203 The practical implications of an order of this kind should be seen in perspective. Given the matters referred to at [189] above, it may be that Ms Kezic has no intention of commencing further proceedings against SJOG in connection with her workers' compensation claims. If that is so, then the order I propose to make will not have any practical impact on Ms Kezic. If, on the other hand, Ms Kezic does wish to pursue further proceedings against SJOG relating to her workers' compensation claim, the order I propose to make will not prevent Ms Kezic from pursuing those proceedings. However, such an order will require Ms Kezic to demonstrate to the court or tribunal in which she seeks to bring such a claim that leave should be granted to permit her to institute those proceedings. Finally, the order I propose to make will not restrict Ms Kezic from bringing proceedings of any other kind.
204 I will hear from counsel for SJOG in relation to the precise terms of the order which should be made.
205 I will also hear from counsel in relation to any application which is to be made that Ms Kezic should pay SJOG's costs of and incidental to the Application, which application was foreshadowed in the originating motion.
[1] Affidavit of Jasdev Singh sworn 28 July 2016 [5].
[2] Affidavit of Jasdev Singh sworn 28 July 2016 [6].
[3] Affidavit of Jasdev Singh sworn 28 July 2016 [7].
[4] Affidavit of Jasdev Singh sworn 28 July 2016 [8].
[5] Affidavit of Stephen Williams sworn 6 June 2017 [10.5]; Affidavit of Jasdev Singh sworn 28 July 2016 [9].
[6] Affidavit of Jasdev Singh sworn 28 July 2016 [9] [10].
[7] Affidavit of Jasdev Singh sworn 28 July 2016 [10] [11], Affidavit of Stephen Williams sworn 6 June 2017 [10] [11].
[8] Affidavit of Jasdev Singh sworn 28 July 2016 [12] (although no evidence was provided of leave to appeal being sought).
[9] Affidavit of Jasdev Singh sworn 28 July 2016 [13].
[10] Affidavit of Stephen Williams sworn 6 June 2017, Annexure SW7.
[11] Affidavit of Stephen Williams sworn 6 June 2017, Annexure SW7.
[12] Affidavit of Stephen Williams sworn 6 June 2017, Annexure SW7.
[13] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS15.
[14] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS15.
[15] Applicant's Outline of Submissions dated 24 July 2017 [13].
[16] Kezic v St John of God Health Care Inc (Reasons for Decision, Dispute Resolution Directorate, Application Nos SD47/11 and SD325/11T, Arbitrator McCahon, 23 August 2011) ('Arbitrator McCahon's decision') [6].
[17] Arbitrator McCahon's decision [6].
[18] Arbitrator McCahon's decision [7].
[19] Arbitrator McCahon's decision [7].
[20] Arbitrator McCahon's decision [1].
[21] Arbitrator McCahon's decision [2].
[22] Arbitrator McCahon's decision [25].
[23] Arbitrator McCahon's decision [46].
[24] Arbitrator McCahon's decision [84].
[25] Arbitrator McCahon's decision [85], [87].
[26] St John of God Health Care Inc v Kezic [2017] WASC 64.
[27] Granich Partners v Yap [2003] WASC 206 [28] (EM Heenan J), see also Attorney General v Michael [2005] WASC 203 [7] (Le Miere J).
[28] Attorney General (WA) v Lashansky [No 2] [2015] WASC 417 [37] (Allanson J).
[29] Attorney General v Michael [2005] WASC 203 [55] (Le Miere J).
[30] Attorney General v Michael [2005] WASC 203 [55] (Le Miere J).
[31] Attorney General v Michael [2005] WASC 203 [54] (Le Miere J).
[32] Granich Partners v Yap [2003] WASC 206 [31] (EM Heenan J).
[33] Granich Partners v Yap [2003] WASC 206 [31] (EM Heenan J).
[34] Granich Partners v Yap [2003] WASC 206 [31] (EM Heenan J).
[35] Granich Partners v Yap [2003] WASC 206 [34] (EM Heenan J).
[36] Granich Partners v Yap [2003] WASC 206 [35] (EM Heenan J).
[37] Granich Partners v Yap [2003] WASC 206 [31] (EM Heenan J).
[38] Applicant's Outline of Submissions dated 24 July 2017 [13], [28] - [61].
[39] In these reasons, I have adopted for convenience the numbering system for the interlocutory applications used by SJOG.
[40] Affidavit of Jasdev Singh sworn 28 July 2016 [17].
[41] Affidavit of Jasdev Singh sworn 28 July 2016 [17] and Annexure JS2.
[42] Affidavit of Jasdev Singh sworn 28 July 2016 [18] and Annexures JS3 and JS4.
[43] Affidavit of Jasdev Singh sworn 28 July 2016 [19].
[44] Affidavit of Stephen Williams sworn 6 June 2017, Annexure SW7.
[45] Affidavit of Stephen Williams sworn 6 June 2017, Annexure SW7.
[46] Affidavit of Stephen Williams sworn 6 June 2017, Annexure SW31.
[47] Affidavit of Stephen Williams sworn 6 June 2017, Annexure SW32.
[48] Affidavit of Stephen Williams sworn 6 June 2017, Annexure SW32.
[49] This background is conveniently summarised by Stone DCJ in Kezic v St John of God Health Care Inc [2014] WADC 169 [7] - [8].
[50] St John of God Health Care Inc v Kezic [2013] WADC 156 (Curthoys DCJ).
[51] St John of God Health Care Inc v Kezic [2013] WADC 156 [33], [35] (Curthoys DCJ).
[53] This background is conveniently summarised by Stone DCJ in Kezic v St John of God Health Care Inc [2014] WADC 169 [10].
[54] Affidavit of Jasdev Singh sworn 28 July 2016, Annexures JS54 and JS55.
[55] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS54, p 370.
[56] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS54, p 371.
[57] Affidavit of Jasdev Singh sworn 28 July 2016, Annexures JS54, p 371.
[58] Affidavit of Jasdev Singh sworn 28 July 2016, Annexures JS54, p 371.
[59] Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 [22].
[62] Re Monger; Ex parte WMC Resources Ltd [2002] WASCA 129.
[63] Salaries and Allowances Tribunal v West Australian Newspapers Ltd [2008] WASC 39 (Martin CJ).
[64] Salaries and Allowances Tribunal v West Australian Newspapers Ltd [2008] WASC 39 [59] (Martin CJ).
[65] Salaries and Allowances Tribunal v West Australian Newspapers Ltd [2008] WASC 39 [62] (Martin CJ).
[66] Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 268.
[67] Salaries and Allowances Tribunal v West Australian Newspapers Ltd [2008] WASC 39 [63] (Martin CJ), referring to Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 268 269 and Thomas v Mowbray [2007] HCA 33; (2007) 233 CLR 307 [599] (Callinan J).
[68] Salaries and Allowances Tribunal v West Australian Newspapers Ltd [2008] WASC 39 [64] (Martin CJ); Stoker v Adexxo Gemvale Constructions Pty Ltd [2004] NSWCA 449 [41].
[69] Workers' Compensation and Injury Management Act 1981 (WA) s 5.
[70] Workers' Compensation and Injury Management Act 1981 (WA) s 18.
[71] Workers' Compensation and Injury Management Act 1981 (WA) sch 1, cl 7(1).
[72] Workers' Compensation and Injury Management Act 1981 (WA) s 61(1).
[73] Workers' Compensation and Injury Management Act 1981 (WA) s 61(1).
[74] Workers' Compensation and Injury Management Act 1981 (WA) s 61(3).
[75] Workers' Compensation and Injury Management Act 1981 (WA) s 61(4), s 182ZT.
[76] Workers' Compensation and Injury Management Act 1981 (WA) s 61(4).
[77] Workers' Compensation and Injury Management Act 1981 (WA) s 61(4a).
[78] Workers' Compensation and Injury Management Act 1981 (WA) s 176(1).
[79] Workers' Compensation and Injury Management Act 1981 (WA) s 182ZT.
[80] Workers' Compensation and Injury Management Act 1981 (WA) s 5(1) and s 182ZQ(1) and (2).
[81] Workers' Compensation and Injury Management Act 1981 (WA) s 176(1), (3).
[82] Workers' Compensation and Injury Management Act 1981 (WA) s 188(1).
[83] Workers' Compensation and Injury Management Act 1981 (WA) s 188(2).
[84] Workers' Compensation and Injury Management Act 1981 (WA) s 188(3) and (4).
[85] Workers' Compensation and Injury Management Act 1981 (WA) s 195(1).
[86] Workers' Compensation and Injury Management Act 1981 (WA) s 199.
[87] Workers' Compensation and Injury Management Act 1981 (WA) s 198(3) and (4).
[88] Workers' Compensation and Injury Management Act 1981 (WA) s 200(1).
[89] Workers' Compensation and Injury Management Act 1981 (WA) s 203(1).
[90] Workers' Compensation and Injury Management Act 1981 (WA) s 207.
[91] Workers' Compensation and Injury Management Act 1981 (WA) s 212.
[92] Workers' Compensation and Injury Management Act 1981 (WA) s 211(1).
[93] Workers' Compensation and Injury Management Act 1981 (WA) s 213(1) and (3).
[94] Workers' Compensation and Injury Management Act 1981 (WA) s 217A(2).
[95] Workers' Compensation and Injury Management Act 1981 (WA) s 217B(1) and (2).
[96] Workers' Compensation and Injury Management Act 1981 (WA) s 247(1).
[97] Workers' Compensation and Injury Management Act 1981 (WA) s 254.
[98] Workers' Compensation and Injury Management Act 1981 (WA) s 219(1).
[99] Brandy v Human Rights & Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 256 257, 268 269.
[100] Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, 488 (Yeldham J); Sheraz Pty Ltd v Vegas Enterprises Pty Ltd [2015] WASCA 4 [11] (Buss JA); [118] (Murphy JA, Chaney J agreeing); Commonwealth Bank of Australia v Bride [2004] WASC 177 [127]; Attorney General (WA) v MTI [2014] WASC 303 [13] (Master Sanderson); Barkla v Civitella [2016] WASCA 111 [19] (Buss & Newnes JJA).
[101] Affidavit of Jasdev Singh sworn 28 July 2016, Annexures JS54, p 371.
[102] Affidavit of Jasdev Singh sworn 28 July 2016, Annexures JS55, p 434 435.
[103] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS5.
[104] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS23.
[105] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS17.
[106] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS26.
[107] Affidavit of Stephen Williams sworn 6 June 2017, Annexure SW22.
[108] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS27.
[109] Applicant's Outline of Submissions dated 24 July 2017 [29(a)].
[110] Applicant's Outline of Submissions dated 24 July 2017 [29(c)].
[111] Workers Compensation and Injury Management Act 1981(WA), s 182ZP(3)(d).
[112] Attorney General (WA) v Lashansky [No 2] [2015] WASC 417 [30] (Allanson J), citing Commonwealth Bank of Australia v Bride [2004] WASC 177 [127].
[113] Kezic v St John of God Health Care Inc [2014] WADC 169 [20].
[114] Kezic v St John of God Health Care Inc [2014] WADC 169.
[115] Kezic v St John of God Health Care Inc [2014] WADC 169 [24].
[116] Kezic v St John of God Health Care Inc [2014] WADC 169 [28].
[117] Kezic v St John of God Health Care Inc [2014] WADC 169 [33].
[118] Workers' Compensation and Injury Management Arbitration Rules 2011 (WA) r 27(1).
[119] Kezic v St John of God Health Care Inc [2014] WADC 169 [37].
[120] Kezic v St John of God Health Care Inc [2014] WADC 169 [40].
[121] Kezic v St John of God Health Care Inc [2014] WADC 169 [59].
[122] Attorney General (WA) v Lashansky [No 2] [2015] WASC 417 [30] (Allanson J), citing Commonwealth Bank of Australia v Bride [2004] WASC 177 [127].
[123] Attorney General v Collier [2001] NZAR 137 [40] (the Court).
[124] Attorney General (WA) v Lashansky [No 2] [2015] WASC 417 [31] (Allanson J).
[125] Granich Partners v Yap [2003] WASC 206 [47] (EM Heenan J); Attorney General v Michael [1999] WASCA 181 [126] (Anderson J, Pidgeon & Steytler JJ agreeing).
[126] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS45, p 262.
[127] Kezic v St John of God Health Care Inc [2015] WASCA 182 [85].
[128] Kezic v St John of God Health Care Inc [2015] WASCA 182 [85].
[129] Kezic v St John of God Health Care Inc [2015] WASCA 182 [86].
[130] Kezic v St John of God Health Care Inc [2015] WASCA 182 [87].
[131] Kezic v St John of God Health Care Inc [2015] WASCA 182 [82].
[132] Kezic v St John of God Health Care Inc [2015] WASCA 182 [88.
[133] Kezic v St John of God Health Care Inc [2015] WASCA 182 [89] [90].
[134] Kezic v St John of God Health Care Inc [2015] WASCA 182 [94].
[135] Kezic v St John of God Health Care Inc [2015] WASCA 182 [96].
[136] Kezic v St John of God Health Care Inc [2015] WASCA 182 [104].
[137] Kezic v St John of God Health Care Inc [2015] WASCA 182 [106].
[138] Kezic v St John of God Health Care Inc [2015] WASCA 182 [110].
[139] Kezic v St John of God Health Care Inc [2015] WASCA 220.
[140] Kezic v St John of God Health Care Inc [2015] WASCA 220 [42].
[141] Kezic v St John of God Health Care Inc [2015] WASCA 220 [45].
[142] Kezic v St John of God Health Care Inc [2015] WASCA 220 [27] [28].
[143] Section 267(1) of the WC Act provides: 'The District Court is not to make an order for costs against a worker on the ground that an appeal under Part XIII was successful.'
[144] Kezic v St John of God Health Care Inc [2015] WASCA 220 [57].
[145] Kezic v St John of God Health Care Inc [2015] WASCA 220 [58].
[146] Kezic v St John of God Health Care Inc [2015] WASCA 220 [59] [60].
[147] Kezic v St John of God Health Care Inc [2015] WASCA 220 [47].
[148] Kezic v St John of God Health Care Inc [2015] WASCA 220 [48].
[149] Kezic v St John of God Health Care Inc [2015] WASCA 220 [49].
[150] Kezic v St John of God Health Care Inc [2015] WASCA 220 [50].
[151] Kezic v St John of God Health Care Inc [2015] WASCA 220 [51].
[152] Kezic v St John of God Health Care Inc [2015] WASCA 220 [61] [62].
[153] Applicant's Outline of Submissions dated 24 July 2017 [44].
[154] Kezic v St John of God Health Care Inc [2015] HCASL 236 [1].
[155] Kezic v St John of God Health Care Inc [2015] HCASL 236 [4].
[156] Kezic v St John of God Health Care Inc [2016] HCASL 29 [3].
[157] Applicant's Outline of Submissions dated 24 July 2017 [74] - [75].
[158] Applicant's Outline of Submissions dated 24 July 2017 [28b].
[159] Applicant's Outline of Submissions dated 24 July 2017 [28b].
[160] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS56.
[161] Affidavit of Jasdev Singh sworn 28 July 2016, Annexure JS57.
[162] Attorney General (WA) v Tey [2015] WASC 146 [69] (Le Miere J).
[163] Attorney General (WA) v Tey [2015] WASC 146 [69] (Le Miere J).
[164] Attorney General (WA) v Tey [2015] WASC 146 [70] (Le Miere J).
(2014) 250 CLR 664
(1995) 183 CLR 245
(2007) 233 CLR 307