FEDERAL COURT OF AUSTRALIA

Ninan v Valuer-General of Western Australia (No 2) [2013] FCA 1180

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed 4 September 2013 be dismissed.

2.    The applicants pay the costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed 4 September 2013 be dismissed.

2.    The applicants pay the costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed 4 September 2013 be dismissed.

2.    The applicants pay the costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed 4 September 2013 be dismissed.

2.    The applicants pay the costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

THE COURT ORDERS THAT:

1.    The application for an extension of time and leave to appeal filed 4 September 2013 be dismissed.

2.    The applicants pay the costs of the application.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

Introduction

1    The applicants apply for an extension of time to seek leave to appeal, and for leave to appeal, against orders made by the primary judge (Buchanan J) on 9 August 2013 in five sets of proceedings: see Ninan v Valuer-General of Western Australia [2013] FCA 789.

2    The orders in each proceeding were in identical terms. They were, relevantly, that the applicants provide security for costs in each proceeding in the sum of $20,000, and that if security was not provided by Friday 30 August 2013, the proceedings stand dismissed. If the proceedings were dismissed for failure to provide security, no further originating application naming the relevant respondent be filed without leave of the Court.

3    Each of the present applications states 10 grounds. The grounds are substantially identical in each application, the only difference being in the form of ground 8 which refers to the pleading in the particular case.

4    Each application was filed on 4 September 2013, that is to say eleven days after the expiration of the time prescribed by Rule 35.13 of the Federal Court Rules 2011 for the filing of an application for leave to appeal.

5    An affidavit sworn on 29 August 2013 by one of the applicants, Mr Ninan, accompanied each application. The affidavit was identical in each proceeding.

6    The affidavit does not comply with the requirements of Rule 35.14(3)(c) because it does not state the facts on which the application relies or the reasons why the application for leave to appeal was not filed within time.

7    The failure to comply with the Rules is not a mere formality because, rather than stating briefly and specifically the facts on which the applicants rely, the affidavit consists of a wide ranging set of submissions directed to what are said to be the applicants’ prospects of success in the substantive proceedings. The affidavit also contains unsubstantiated, but serious, allegations about the parties and against judges of the Court who have dealt with previous applications.

The primary judgment

8    The primary judgment dealt with interlocutory applications filed by each of the respondents seeking orders for summary dismissal or, alternatively orders for the provision of security for costs.

9    The grounds for summary dismissal relied upon by most of the respondents was that the proceedings were an abuse of process because they sought to relitigate a case which had been disposed of by earlier proceedings.

10    Here, the earlier proceedings were those which were dealt with by another judge of the Court, Griffiths J. They are described in the primary judgment as the 2012 proceedings.

11    The primary judge was of the view that as a matter of substance the applicants in these proceedings are seeking, in large part, to repeat allegations which were dealt with to finality in the 2012 proceedings. This can be seen in the primary judgment at [20]:

Even though the allegations are, in some respects, expressed in different language, the factual assertions are essentially the same. Like the 2012 proceedings, it is a difficult task to get behind the obscure language and structure used by the applicants in their pleadings, but when that is attempted it is clear that the present cases represent an attempt to revive the 2012 litigation.

12    However, the primary judge went on to say that there may be some areas in which the applicants have an argument that new matters are raised or the respondents were not parties to the 2012 proceedings. His Honour expressed no final view as to whether some parts of the proceedings might survive, or against whom.

13    His Honour then turned to the alternative claim for security for costs. He said the reasons why security should be ordered were the same as those which had been expressed by Griffiths J in relation to orders made in the 2012 proceedings. Those reasons were, first, that the applicants are not ordinarily resident in Australia and, second, the “patent deficiencies” in the statement of claim: see Ninan v St George Bank Ltd [2012] FCA 905; (2012) 294 ALR 190 (Ninan v St George Bank) at [45]-[46].

14    The primary judge said at [24] that the “patent deficiencies” identified by Griffiths J in the 2012 proceedings are reflected in the present proceedings.

15    His Honour explained the approach that he took as a practical one stating (at [25]):

In my view, the most efficient course to take at the moment is to direct that the applicants provide security for costs for the new proceedings which they have commenced. If security is provided then a closer examination of the proceedings, with a view to assessing the applicants’ attempts to justify them procedurally, may be justified. No further examination of that question is, in my view, necessary or justified at the moment.

The short answer to the applications

16    Notwithstanding Mr Ninan’s lengthy submissions and his insistence that I deal with each argument presented by him separately in each case, in my opinion the applications can be disposed of very shortly, and in reasons which apply to all of the matters.

17    Even if I were to ignore the delay, which is short, and the failure to explain the reasons for it, the applications fail because the applicants have not identified any error in the exercise of the primary judge’s discretion in a matter of practice and procedure: see Brambles Holdings Ltd v Trade Practices Commission (1979) 28 ALR 191 at 193 (Bowen CJ) and the authorities cited there.

18    Ordinarily, that observation would be sufficient to dispose of the applications. However, I will deal, as briefly as possible, with the essential matters raised in the applications.

THE ISSUES RAISED IN THE APPLICATIONS

Ground 1 – “wrong orders” and “conflict of interest”

19    The applicants state that the primary judge made “completely wrong orders” and that he had a “conflict of interest” in the matters. These are nothing more than bare assertions which include serious, yet unsupported, allegations against a judge of the Court. They appear to be “extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying”: see Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153 at [67].

Ground 2 – prospects of success

20    This is another bare assertion. To the extent that it relates to other grounds, I will deal with it below.

Ground 3 – interpretation of the provisions of the Valuation of Land Act 1978 (WA)

21    Mr Ninan’s affidavit describes this as the “key issue”. However, his submissions identify no error in the primary judge’s observations. Rather, the submissions (and the affidavit) contain nothing more than unsupported assertions of error. This may be seen in the submission that:

It is very clearly written that Valuer General is limited or is prohibited from escalating land values at the creation of new lots. It means that land value cannot increase by the mere process of subdividing a large land parcel into several land lots.

22    Mr Ninan did not point to anything in ss 23 or 24 of the Valuation of Land Act 1978 (WA) to support that assertion. Nor can I see anything in those provisions which might support his assertion. His affidavit contains extravagant and scandalous allegations against the primary judge of the type referred to at [19] above.

Ground 4 – the “confession” of deception

23    The “confession” letters to which Mr Ninan refers in his submissions were not in evidence before the primary judge. They were in evidence in the 2012 proceedings before Griffiths J, proceedings NSD 700 of 2012.

24    In any event, the letters do not contain any “confession” by the Valuer-General as contended by Mr Ninan. This can be seen from Exhibit GN-22A and Exhibit GN-22B to his affidavit of 12 August 2012, copies of which are annexed to these reasons. The observations stated in the boxes forming part of the exhibits were apparently added by Mr Ninan as his comments on the letter from Mr Jeffrey who was, at the date of the letter, 20 February 2011, the Acting Valuer-General.

Ground 5 – the Racial Discrimination Act 1975 (Cth)

25    Mr Ninan submits that the Racial Discrimination Act 1975 (Cth) (Racial Discrimination Act) provides for the courts to hear all natural persons equally. He submits that, accordingly, the applicants ought to be treated as though they are Australian citizens or Australian residents.

26    The effect of the submission is that the primary judge, and Griffiths J in the earlier proceedings, erred in taking into account the residence of the applicants outside Australia as a consideration in the exercise of the discretion to order security for costs and that to do so is a contravention of s 10(1) of the Racial Discrimination Act.

27    There is clear authority for the proposition that where an applicant is ordinarily resident overseas the Court may take this into account in deciding, in the exercise of its discretion, to order security for costs under s 56 of the Federal Court Act 1976 (Cth) and Rule 19.02(b) of the Federal Court Rules 2011: see Barton v Minister for Foreign Affairs [1984] FCA 108.

28    Moreover, an order for security for costs against a non-resident applicant turns on the person’s place of residence, not his or her nationality. The order therefore does not contravene s 10(1) of the Racial Discrimination Act: see Ninan v St George Bank Ltd [2013] FCA 818 at [46].

Ground 6 – order against a natural person

29    The mere fact that an applicant is a natural person is not determinative of the question of whether security should be ordered. Other considerations may outweigh the natural disinclination of a court to order a natural person to provide security: Ninan v St George Bank at [31] ff per Griffiths J.

30    The primary judge took into account the same considerations as were relied upon by Griffiths J and supported by the authorities to which Griffiths J referred in his comprehensive review of the case law. This is sufficiently clear from [24] of the primary judge’s reasons.

Ground 7 – defective pleading

31    The effect of this submission of the applicants is that a defective pleading which is curable is not a reason for ordering security for costs.

32    However, the answer to that submission is found in the adoption by the primary judge of the explanation given by Griffiths J in the 2012 proceedings: see Ninan v St George Bank at [46] and the primary judgment at [24].

33    There was no error in the primary judge’s view that the patent deficiencies in the pleading were a factor to be taken into account in the exercise of the discretion to order security.

Ground 8 – similarity of pleadings

34    The effect of Mr Ninan’s submission is that the primary judge was in error because the pleading in each of the 2013 proceedings is different from the pleading in the 2012 proceedings.

35    The short answer to this submission is that the primary judge considered the pleadings in the 2013 proceedings to be patently deficient. That was a factor he was entitled to take into account for reasons referred to above.

Ground 9 – public interest

36    The observations made by Griffiths J in Ninan v St George Bank at [49] apply equally here.

37    The primary judge was entitled to proceed on the basis that the defective pleadings did not raise matters of sufficient public interest to tilt the balance in favour of the applicants on the question of security for costs.

Ground 10 – impecuniosity caused by actions of respondents

38    The position in the present case is no different from that which was described by Griffiths J in Ninan v St George Bank at [47]-[48]. The applicants did not establish by admissible evidence their financial position at the time when the events occurred.

Other submissions

39    Mr Ninan asserts in his submissions that the applicants have a solid claim. However, this did not address the problems to which the primary judge referred at [20]-[24]. That is to say, the 2013 proceedings repeat “in large part” the allegations made in the 2012 proceedings and it is not possible to determine any areas in which the applicants might have an argument that new matters are raised because the pleadings are patently deficient.

40    Mr Ninan submits that in order for a second proceeding to amount to a relitigation of an earlier proceeding, both must be identical. This overlooks the principles stated in the authorities discussed by French J in Spalla v St George Motor Finance Ltd (No 6) [2004] FCA 1699 at [64]-[70].

41    As his Honour’s analysis of the authorities shows, the question is not to be determined by the precise form of the words stated in a pleading, but by considering whether, in all the circumstances, the party is misusing the processes of the court by seeking to raise issues which were, or could have been, determined in the earlier proceeding.

42    That principle was followed by the primary judge in the present case. His Honour observed that although the allegations are in some respects expressed in different language, the factual assertions are essentially the same.

43    In any event, the applicants fail to address the foundation of the primary judgment. His Honour did not express a final view. He did not order summary dismissal. Rather, he took the practical course of ordering security against non-residents whose pleadings he considered to be patently deficient, so as to provide a fund in respect of each proceeding, out of which costs may be paid if the proceedings are ultimately dismissed.

44    The amount of security ordered was relatively modest in each case. It is common, and in accordance with ordinary principles, to make orders for security before defences are filed.

Conclusion and orders

45    The application for an extension of time and leave to appeal in each proceeding must be dismissed with costs.

Associate:

Dated:    13 November 2013

Exhibit GN-22A

Exhibit GN-22B