Yap v Granich Partners

REASONS FOR JUDGMENT 1 The applicant, Mrs Yap has applied for leave to issue proceedings despite having been declared a vexatious litigant. See Granich & Associates v Yap [2004] FCA 1567. In light of orders made in that decision, attendance by the respondent was unnecessary. 2 The relevant Rule of the Federal Court Rules is O 21 r 5. In relation to this Kirby J has observed in Re Attorney-General (Cth); Ex parte Skyring (1996) 135 ALR 29, where his Honour refused an application for leave to commence further proceedings in the High Court of Australia. At 31-32 his Honour formulated as follows the principles to be applied: I approach the application by Mr Skyring for leave to proceed on the three proceedings … with the following considerations in mind: First, it is always important for every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden amongst the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance, and not impatience, are specially required where that person is not legally represented. Second, it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that, ordinarily, a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant. It is extremely rare in this court to use the power, whether under the inherent power or under O 63, to require leave before a person may commence proceedings invoking the court's jurisdiction. Thirdly, the court must never shy away from the determination of a point sought to be argued simply because it may have major ramifications. … Fourthly, I do not pause to consider the appropriateness of the particular process that Mr Skyring has commenced, seeking relief by way of the writs of certiorari and mandamus. It is not necessary for me, in the decision which I have arrived at, to determine whether they are in each case, or in any of the cases, the appropriate process of the court to invoke its jurisdiction … Fifthly, no question arises as to the validity of the rule under which Mr Skyring approaches the court for leave to proceed. 3 In support of her application Mrs Yap relied upon an affidavit (which, with annexures, was 363 pages in length). It outlined the history of her original dispute. There is the following more succinct summary of the dispute in various courts. It is set out in Granich v Yap [2004] FCA 1567 (at [3], 1.-15.) as follows: 1. P Vivante & Co Pty Ltd obtained a default judgment against Mrs Yap in District Court action 1536 of 1989 on 10 April 1989. 2. On 23 June 1992, District Court Registrar Kingsley set aside the default judgment and gave Mrs Yap leave to defend the proceedings provided she paid $39,000 into court by 7 July 1992. 3. Mrs Yap failed to pay the money into court. 4. Mrs Yap appealed the decision of District Court Registrar Kingsley to his Honour Judge Viol. The appeal was heard by his Honour on 3, 10 and 21 August 1992. His Honour dismissed the appeal with costs. 5. Mrs Yap applied for leave to appeal the decision of his Honour Judge Viol to the Full Court of the Supreme Court. On 10 June 1993 the Full Court dismissed her application for leave to appeal and ordered that she pay the costs. 6. Mrs Yap commenced proceedings against Granich & Associates for alleged negligence in District Court action 6202 of 1993. Her action related to the firm's conduct of the District Court proceedings. Her action was dismissed by Commissioner Martin QC on 7 May 1996. He found she failed to prove the firm had been negligent. The solicitors, Granich & Associates, were awarded the costs of the action. 7. Mrs Yap instituted an appeal to the Full Court of the Supreme Court. That appeal was dismissed on 21 July 1997 for want of prosecution. Mrs Yap was ordered to pay the costs of the appeal. 8. Granich & Associates initiated proceedings in the Local Court to recover legal costs from Mrs Yap. She brought a counterclaim in those proceedings and sought to have it transferred to the Supreme Court. On 24 October 1997, Master Bredmeyer dismissed the action for removal as an abuse of process. 9. Mrs Yap applied for special leave to appeal the judgment of the Full Court to the High Court. The special leave application was dismissed on 22 October 1998 with costs. 10. On 14 December 2001, Mrs Yap applied for judgment in the District Court action which had been dismissed by Commissioner Martin QC on 7 May 1996. The application for a judgment was allegedly based on admissions. It was dismissed with costs by his Honour Judge Wisbey. 11. On 15 March 2002, Mrs Yap applied to the District Court for a retrial of the 1993 action against her solicitors based on alleged fresh evidence. Commissioner Greaves dismissed the application with costs on 22 March 2002. 12. Mrs Yap's appeal against the decision of Commissioner Greaves was dismissed with costs by his Honour Judge Williams on 12 April 2002. 13. Mrs Yap applied to the Supreme Court for a rehearing of the 1996 District Court action based on alleged fresh evidence. Her application was heard by the Full Court of the Supreme Court on 14 August 2002 and dismissed by the Court on 4 December 2002. The Full Court found that she was making the same allegations as she had in the hearing before Commissioner Martin QC. 14. On 30 December 2002, Mrs Yap made an application for special leave to appeal to the High Court seeking, inter alia, to set aside the judgment of the Full Court of 4 December 2002. That application is yet to be listed for hearing. 15. On 13 December 2002, Granich & Associates made an application for leave to apply in the Supreme Court of Western Australia to have Mrs Yap declared a vexatious litigant under the Vexatious Proceedings Restriction Act (2002) (WA). In a judgment delivered on 31 October 2003, Heenan J made an order prohibiting Mrs Yap or any person acting on her behalf from instituting proceedings against Granich & Associates without leave of the Court or Tribunal in the manner prescribed in s 6 of the Vexatious Proceedings Restriction Act - Granich Partners v Yap [2003] WASC 206. 4 There has also been an extensive history in this Court. That is shortly summarised in Granich v Yap [2004] FCA 1567 at [4], 1.-13: 1. On 11 October 1997, Granich & Associates caused a bankruptcy notice to be served on Mrs Yap. The notice required payment of $33,184.11. The debt comprised taxed costs of $29,790.45 which Mrs Yap had been ordered to pay to Granich & Associates upon the dismissal of her claim by Commissioner Martin on 7 May 1996, and post-judgment interest of $3,393.66. The costs had been taxed on 12 August 1996. 2. On 17 October 1997, Mrs Yap filed an application to set aside the bankruptcy notice on the basis that she had a counterclaim based upon the negligence of Granich & Associates. On 1 December 1997 the District Registrar of the Federal Court dismissed that application. Mrs Yap did not seek review of or appeal from that order. 3. On 1 May 1998, Granich & Associates filed a creditor's petition seeking sequestration of Mrs Yap's estate. The act of bankruptcy relied upon was non-compliance with the bankruptcy notice served on 11 October 1997. 4. On 13 May 1998, Mrs Yap filed a notice of intention to oppose the petition based on a pending application for special leave to appeal to the High Court of Australia in relation to her unsuccessful professional negligence action against Granich & Associates. She also alleged: "Deliberate concealment of facts relating to [Mrs Yap's] cause of action to conceal [Granich & Associates'] breach of duty to [Mrs Yap] pursuant to [Granich & Associates'] retainer/contract to [Mrs Yap]." 5. The High Court dismissed Mrs Yap's application for special leave to appeal on 22 October 1998, stating amongst other things that her application was "entirely devoid of merit". 6. Between the filing of the notice of intention to oppose the petition and 10 December 1998, the hearing of the petition was adjourned five times and Mrs Yap filed six affidavits. On 10 December 1998 the Registrar made a sequestration order against Mrs Yap's estate. 7. The matter came before me as a result of a motion filed by Mrs Yap on 16 December 1998 seeking an order that the judgment of the Registrar be set aside, the sequestration order be annulled, and that Granich & Associates pay damages and costs. 8. The motion to review and set aside the sequestration order was dismissed by me on 30 July 1999 - Granich & Associates v Yap Cheng See [1999] FCA 1039. 9. Mrs Yap appealed against my decision to the Full Court which dismissed her appeal on 29 November 1999 - Yap v Granich & Associates [1999] FCA 1867. 10. On 6 October 2000, Mrs Yap lodged an application for the annulment of her bankruptcy. On the respondent's motion, RD Nicholson J dismissed the application on the basis, inter alia, that Mrs Yap was seeking in it to raise the same allegations which she had previously raised in the Full Court of the Federal Court - Yap v Granich & Associates [2001] FCA 799. 11. Mrs Yap applied to the Full Court of the Federal Court for leave to appeal against the decision of RD Nicholson J. Her application was dismissed by the Full Court on 29 November 2001 - Yap v Granich & Associates [2001] FCA 1735. In dismissing her application for leave to appeal, the Full Court, per Gyles J, accepted that the primary judge was entitled to regard her proceedings 'as doomed to failure and so as an abuse of process and vexatious'. Mrs Yap was ordered to pay the costs of Granich & Associates. 12. Mrs Yap sought again to set aside the sequestration order in proceedings commenced in the Federal Magistrates Court which were dismissed on 30 October 2002 by McInnis FM - Yap v Granich & Associates [2002] FMCA 284. 13. Mrs Yap appealed against the decision of the Federal Magistrate. Her appeal was heard by a single judge, Marshall J, who dismissed the appeal on 21 May 2004 - Yap v Granich & Associates [2004] FCA 647. His Honour said that the learned federal magistrate was (at [11]): '... correct in characterising the proceeding before him as an abuse of process.' 5 Mrs Yap was specifically asked in the course of the hearing before me what new matters the material raised and what, if any, new evidence she wished to emphasise. Rather than indicate any new evidence, Mrs Yap pointed out that she had reviewed the history of the matter and was now in a position to explain clearly to the Court how she had been misled and deceived in various courts on previous occasions and had been misled and deceived by the conduct of the same people in respect of whom complaints had been raised in the past. 6 Mrs Yap spoke to her affidavit in the course of her application and stressed that in her view the material in the affidavit identified with precision and beyond doubt that she had a strong cause of action against the proposed respondent and that previous judges and other judicial officers had been misled by the conduct of various solicitors in the course of numerous proceedings. 7 I am unable to agree. Regrettably, the Court is in no clearer position as to any new matters which have arisen other than the bare contention on the part of Mrs Yap that she is now in a position for the first time to illustrate quite clearly to the Court the conduct which has concealed her cause of action against the proposed respondent. In reality her argument and her affidavit which I have read on several occasions, while extremely extensive is very difficult to follow. 8 For the same reasons expressed by Nicholson J in Yap v Granich & Associates [2005] FCA 309, I could not be satisfied that there is any cogent new material upon which Mrs Yap would be able to rely to justify bringing proceedings against the proposed respondent. Equally, as his Honour observed, all of the evidence relied upon was available in previous hearings and could have been relied upon in those hearings if it was of any value. I refer to [4]-[10] of Yap v Granich [2005] FCA 309: 4 In his reasons French J said that there had been a long and convoluted history of litigation between the applicant and her former solicitors, the present respondent. He set out in some detail the history of the litigation and its background and I do not repeat that here but incorporate it by reference (see Granich & Associates v Yap [2004] FCA 1567). 5 In setting out that history his Honour drew a distinction between proceedings taken by the applicant in the District and Supreme Courts of Western Australia and in the High Court on applications for special leave to appeal from the decisions of the State Full Court, as well as the separate history of proceedings in the Federal Court. He made clear that part of the history in the Federal Court was that on 10 December 1998 the Registrar had made a sequestration order against the applicant's estate. It is that sequestration order to which the notice of motion makes reference. 6 The order made by French J was an application of O 21 of the Federal Court Rules ('FCR') applicable to vexatious litigants. His Honour considered that the history of her litigation in this Court answered the criteria set out in FCR O 21 r 2. He said (at [9]): 'Her repeated litigation has been vexatious in the sense that she has sought to relitigate issues which have been previously determined.' 'The want of any reasonable ground for Mrs Yap's persistent relitigation of issues has been amply demonstrated in the judgments that have been made in the course of those proceedings.' 7 In her affidavit in support of the notice of motion, Mrs Yap sets out various matters which she says go to the existence of an arguable defence by her to the making of the sequestration order in question. It is apparent from examination of the affidavit that a large part, if not all of it, has been addressed and considered in prior decisions in this Court and other courts, the subject of reference in French J's reasons. 8 When asked whether the affidavit contained anything new Mrs Yap drew attention in particular to par (e) on p 3 and to subparagraphs of it, in particular (1), (2), (3), (4), (5) and (6) (pp 3 - 5). However, the point is, the evidence that she seeks to argue there is evidence which was by the dates associated with it clearly available on any prior occasion if in fact it has not already been considered by courts. 9 More importantly the purpose of the notice of the motion is quite patently to relitigate the issues which have been the subject of decisions in this Court; that is, the viability of the sequestration order against her and the consequent effect on her status in bankruptcy. That matter is the subject of judgments by members of the Court and Full Courts. It is therefore patent that this proceeding instituted by the applicant against the respondent seeks further to relitigate the issues which have previously been dealt with. 10 Consequently there is no basis upon which the discretion to grant leave of the Court can be exercised. Accordingly I consider that the motion must be refused. 9 I have no doubt that Mrs Yap has suffered considerably through the manner in which events have unfolded. However there is no material that she has put before the Court which would justify her being given leave to issue proceedings in relation to these matters which have been previously ventilated on numerous occasions. 10 The motion for leave must be refused. I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice McKerracher.