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SUPREME COURT OF WESTERN AUSTRALIA=The Court is sitting to hear a notice of originating motion brought by Lindsay Hunter for leave to institute proceedings pursuant to s 6 of the Vexatious Proceedings Restriction Act 2002 (WA), leave being necessary to do so because Mr Hunter has been declared to be a vexatious litigant. 2 The proposed proceedings are referred to in the affidavits which have been filed by Mr Hunter on this application. The relief sought is complicated and compendious but it is directed against the RSPCA WA Inc, the RSPCA WA directors, being all appointed directors of that association, Ms Joanna Schirrman, chief veterinarian of the RSPCA, Mr Keith Ginbey and all general inspectors of the RSPCA.=the Vexatious Proceedings Restriction Act is unconstitutional and therefore illegal because it is in breach of the Animal Welfare Act and that because it is unconstitutional this gives rise to a cause under s 78B of the Judiciary Act 1903 (Cth), requiring notice to be given to the Attorneys General for the Commonwealth, the States and the Territories, and for the Court not to proceed further without giving the s 78B notices. As to that, I can say that this contention appears to be without any shred of merit whatsoever. The alleged conflict between the Vexatious Proceedings Restriction Act and the Animal Welfare Act does not give rise to any arguable constitutional [2011] WASC 363 EM HEENAN J Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 8 issue and there is no basis whatsoever to contemplate an order that s 78B Judiciary Act notices are required or should be given. 16 Finally, Mr Hunter has submitted that he should not be required to deal further with his objection to me sitting because he did not know until the commencement of proceedings this morning that I had been assigned to hear his case, and that had he been aware of that, he would have taken more care to examine the past record of reasons for decision and transcripts in cases in which I have been involved. He submits that, in that case, he would have been better able to present his case that I was actually prejudiced or biased or that a reasonable person might entertain a belief that I was biased or prejudiced and unable to give a fair and independent decision in his case. 17 As to all these matters I must observe that Mr Hunter has advanced these submissions with relative calm and restraint and with as much deference as he considers should be employed in raising delicate and unpalatable matters. Nevertheless, I do not consider that there is any reasonable basis upon which I should disqualify myself from hearing this application. I have been involved in prior matters involving Mr Hunter, including his unsuccessful applications to bring proceedings under the Vexatious Proceedings Restriction Act. I have given reasons which explain, I hope in modest terms, my conclusions in those matters. The first of those matters was in 2003 and the second in 2008. The present proceedings are entirely fresh and although it is clear that I take a different view of the submissions advanced by Mr Hunter in many respects, that does not mean that I am biased or prejudiced nor does it give rise to any reasonable suspicion of bias. I therefore decline his submission that I should not sit on this matter and I will deal with the application on its merits. 18 I consider that the action which is proposed in the papers filed by Mr Hunter is replete with confusion of thought and seeks to advance unsubstantiated and extreme allegations. I consider that it reveals no prospect of success in the action contemplated and that it disregards the lawful powers and obligations which the RSPCA and its officers possess under legislation. The papers, the affidavits and the submissions produced by Mr Hunter this morning all have features which were decided in the previous cases of Hunter v RSPCA [2006] WASC 215 by Hasluck J and by myself in Hunter v RSPCA in 2008 to be vexatious. I consider that there is no prima facie ground for the proceedings and that leave to commence them should be refused.

Supreme Court of Western Australia

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[2011] WASC 363

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Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 1
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION : LINDSAY HUNTER (& as Intellectual Property
owner of Goldenkelpies) -v- RSPCA WA INC
[2011] WASC 363
CORAM : EM HEENAN J
HEARD : 1 DECEMBER 2011
DELIVERED : 1 DECEMBER 2011
PUBLISHED : 23 DECEMBER 2011
FILE NO/S : CIV 3214 of 2011
BETWEEN : LINDSAY HUNTER (& as Intellectual Property
owner of Goldenkelpies)
First Plaintiff
LINDSAY HUNTER as TRUSTEE (for DOG
WELFARE ASSOC)
Second Plaintiff
DOG WELFARE ASSOC Inc
Third Plaintiff
AND
RSPCA WA INC
First Defendant
RSPCA WA Directors (all appointed directors)
Second Defendant
JOANNA SCHIRRMAN (Chief Veterinarian RSPCA)
Third Defendant
KEITH GINBEY (& all General Inspectors of RSPCA)
Fourth Defendant
[2011] WASC 363
Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 2
Catchwords:
Vexatious litigant – Leave to institute proceedings – Application for Judge to
recuse – No basis for applications – Leave refused
Legislation:
Vexatious Proceedings Restriction Act 2002 (WA)
Result:
Leave to institute proceedings refused
Category: B
Representation:
Counsel:
First Plaintiff : In person
Second Plaintiff : In person
Third Plaintiff : In person
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Solicitors:
First Plaintiff : In person
Second Plaintiff : In person
Third Plaintiff : In person
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
[2011] WASC 363
Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 3
Case(s) referred to in judgment(s):
Attorney General v Hunter [2002] WASC 189
Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337
Hunter v RSPCA [2006] WASC 215
Hunter v RSPCA WA Inc [2008] WASC 153
Michael Wilson & Partners Limited v Nicholls [2011] HCA 48
Re The Attorney General of Western Australia The Hon Mr Jim McGinty Or
His Delegates; Ex Parte Hunter [2003] WASC 149
[2011] WASC 363
EM HEENAN J
Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 4
1 EM HEENAN J: The Court is sitting to hear a notice of originating
motion brought by Lindsay Hunter for leave to institute proceedings
pursuant to s 6 of the Vexatious Proceedings Restriction Act 2002 (WA),
leave being necessary to do so because Mr Hunter has been declared to be
a vexatious litigant.
2 The proposed proceedings are referred to in the affidavits which have
been filed by Mr Hunter on this application. The relief sought is
complicated and compendious but it is directed against the RSPCA WA
Inc, the RSPCA WA directors, being all appointed directors of that
association, Ms Joanna Schirrman, chief veterinarian of the RSPCA,
Mr Keith Ginbey and all general inspectors of the RSPCA.
3 The application is supported by a series of affidavits sworn by
Mr Hunter which are long and detailed. They are directed at activities
undertaken by the RSPCA and its officers in seizing, for various alleged
reasons, dogs belonging to Mr Hunter who contends that the RSPCA is
acting unlawfully and is threatening to destroy the dogs. As well he
makes a variety of other allegations.
4 When the application came on for hearing, Mr Hunter initially
indicated that he may wish to object to me sitting on the application
because of my past involvement in other litigation concerning him. As his
submissions developed he advanced, respectfully, I have to say, reasons to
contend that I may be biased or prejudiced or have the appearance of
being biased or prejudiced to a fair-minded person, which gives rise to a
necessity that I should recuse myself from sitting on this case in order that
all reasonable appearances of independence should be maintained.
5 It is necessary to say a little about the history. Mr Hunter has been
involved in much litigation associated with the RSPCA over the years.
He was declared to be a vexatious litigant by Hasluck J in a decision,
Attorney General v Hunter [2002] WASC 189. In that case Hasluck J
said [108]:
The evidentiary materials establish that since 1991 the respondent has
made 27 applications for violence restraining orders, brought 48 private
prosecutions, commenced three civil actions and lodged 33 single Judge
appeals and one Full Court appeal. The great majority of these
proceedings have been commenced since 1998. Save for one application
for a violence restraining order in which the person against whom the
order was sought consented to the application, and for a number of
unresolved private prosecutions, every other matter instituted by the
respondent has either been dismissed, struck out or not pursued by the
respondent. The frequency and repetitive nature of these proceedings
[2011] WASC 363
EM HEENAN J
Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 5
clearly demonstrates a habitual and persistent pattern of instituting
proceedings by the respondent.
6 In 2006 Mr Hunter sought leave under s 6 of the Vexatious
Proceedings Restriction Act to commence proceedings against the
RSPCA and that application for leave came on for hearing before
Hasluck J on 15 September 2006. On 26 December 2006 Hasluck J
refused those applications – Hunter v RSPCA [2006] WASC 215.
7 In July 2008, in another case concerning the RSPCA, Mr Hunter
applied for a permanent stay of orders made in the Magistrates Court
concerning the forfeiture of dogs under the Animal Welfare Act 2002
(WA) and he also applied to rescind or vary the orders declaring him a
vexatious litigant. That matter came on for hearing before me on 10 July
2008, when I dismissed the application. In the course of doing so, I said
in my reasons for judgment, which were subsequently published on
24 July 2008 – Hunter v RSPCA WA Inc [2008] WASC 153:
27 Although I say so with respect to him, Mr Hunter’s affidavits and
other papers show an incomplete understanding of the significance
of law and the rules of court in relation to the proceedings which
have been taken. On the face of the documents before me, they
bear all the appearances of vexatious proceedings. I am afraid
Mr Hunter does not really understand or appreciate the principles
of the law which apply in these proceedings but, nevertheless, no
doubt conscientiously, wishes to pursue relief to which he
mistakenly believes himself to be entitled.
28 The problem is that the mistake leads him to pursue proceedings
which I am satisfied are vexatious. The proposed proceedings
which Mr Hunter seeks to institute and those which he has
foreshadowed are, to my mind, vexatious. There is no basis upon
which leave should be granted or any modification to the existing
order of Hasluck J should be made. I therefore refuse the
applications which have been made and dismiss the proceedings.
8 In addition, I had earlier in July 2003 dismissed an application by
Mr Hunter for leave to issue writs of prohibition, mandamus and certiorari
against the Attorney General and other public officers in Re The Attorney
General of Western Australia The Hon Mr Jim McGinty Or His
Delegates; Ex Parte Hunter [2003] WASC 149. Mr Hunter submits that
because of that past involvement and other factors, which I am about to
mention, I should not sit on the present application.
9 The other matters which he raised are these. He says that on a
previous occasion, in the course of submissions when dealing with one of
[2011] WASC 363
EM HEENAN J
Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 6
his earlier cases, I said in the course of argument, and that it is recorded
on transcript, that I had made donations to the RSPCA. I now have no
recollection of saying that and I have not had the transcript produced to
me, but it is perfectly possible that I might have said that and it is indeed
very probable, and almost certain, that over many past years I have from
time to time made small donations to the RSPCA during its public
fundraising and charity campaigns. I am not a regular or major donor to
that organisation and never have been but, as I say, it is distinctly possible
that I have made small donations from time to time over the years. I do
not consider that for that reason I am placed in a position where I cannot,
or should not, hear these proceedings – Ebner v Official Trustee in
Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 and Michael Wilson &
Partners Limited v Nicholls [2011] HCA 48.
10 Mr Hunter also submits that I have in the course of submissions from
him this morning pointed out to him that the honesty of the RSPCA is not
an issue. I did make an observation to that effect, although perhaps not
exactly in those terms. It came in the context where he was developing in
great detail allegations that the RSPCA and its officers had been dishonest
and fraudulent, had suppressed evidence and committed a number of other
major wrongs, and that this had led to erroneous decisions being made in
the past. I indicated to him, and I stand by these observations, that the
Court is bound by decisions which have been made in the past, including
Hasluck J’s decision of 2002 declaring him to be a vexatious litigant, and
that for present purposes whether or not that decision or other past
decisions which he says are wrong were influenced by the alleged or other
frauds is simply not to the point. Those are decisions of the Court. They
were reached after formal hearings and proper reasons were given. There
were avenues of appeal which have not led to the decisions being set
aside. I do not consider that any observation made in relation to the
honesty of the RSPCA has any significance other than to indicate that the
issue for consideration today is not whether or not the RSPCA is honest
but whether or not there are grounds for Mr Hunter to initiate the
proceedings against the intended defendants which he proposes in
relation to the latest episodes of November 2011.
11 Mr Hunter has also made submissions to the effect that I have given
wrong or bad decisions in the past, meaning the two decisions which I
have already mentioned, that of Re The Attorney General; Ex Parte
Hunter in 2003 and Hunter v RSPCA WA Inc [2008] WASC 153 in July
2008. Again, I can say that those decisions were given after full hearings,
were accompanied by written reasons, and have not been challenged or set
aside on appeal.
[2011] WASC 363
EM HEENAN J
Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 7
12 Mr Hunter also says that I should entertain an application made by
him orally this morning, not for leave to institute proceedings under s 6 of
the Vexatious Proceedings Restriction Act, but to rescind or to vary the
order of Hasluck J made in 2002 declaring him to be a vexatious litigant.
The papers and the motion which have been filed in these proceedings do
not purport to be any such application under s 7. No ground is laid to
rescind or vary Hasluck J’s decision of 2002. It has been accepted and
acted upon on a number of subsequent occasions, and Mr Hunter’s
application under s 6, which is before the Court, assumes that the order
was validly made under s 6. There is, therefore, no occasion to
contemplate any application under s 7.
13 Mr Hunter has submitted that on previous occasions I have
conducted myself or written words in reasons for judgment to the effect
that I do not believe him on oath. I am not conscious of having done so,
although my reasons for judgment in the two cases which have been given
and which I have mentioned do involve a rejection of the contentions
advanced, whether of fact or of law, by Mr Hunter in the past.
14 I have endeavoured to explain that this is due to him having an
incomplete understanding of the significance of the law and the Rules of
the Supreme Court 1971 (WA) in relation to these proceedings. I stand by
that view, and the submissions made by Mr Hunter this morning are vivid
demonstrations of that inability to understand properly the law and
procedure.
15 Mr Hunter has submitted that I show bias and prejudice by being
overzealous and sympathetic to the RSPCA and that I am unduly disposed
to recognise the authority of the RSPCA. He also submits that the tones
of my reasons for judgment on previous occasions echoed the tone of
Hasluck J in his original decision, are not favourable and show prejudice
against him. He further submits that the issues which he wishes to raise in
the proceedings involve a contention that the Vexatious Proceedings
Restriction Act is unconstitutional and therefore illegal because it is in
breach of the Animal Welfare Act and that because it is unconstitutional
this gives rise to a cause under s 78B of the Judiciary Act 1903 (Cth),
requiring notice to be given to the Attorneys General for the
Commonwealth, the States and the Territories, and for the Court not to
proceed further without giving the s 78B notices. As to that, I can say that
this contention appears to be without any shred of merit whatsoever. The
alleged conflict between the Vexatious Proceedings Restriction Act and
the Animal Welfare Act does not give rise to any arguable constitutional
[2011] WASC 363
EM HEENAN J
Document Name: WASC\CIV\2011WASC0363.doc (RB) Page 8
issue and there is no basis whatsoever to contemplate an order that s 78B
Judiciary Act notices are required or should be given.
16 Finally, Mr Hunter has submitted that he should not be required to
deal further with his objection to me sitting because he did not know until
the commencement of proceedings this morning that I had been assigned
to hear his case, and that had he been aware of that, he would have taken
more care to examine the past record of reasons for decision and
transcripts in cases in which I have been involved. He submits that, in
that case, he would have been better able to present his case that I was
actually prejudiced or biased or that a reasonable person might entertain a
belief that I was biased or prejudiced and unable to give a fair and
independent decision in his case.
17 As to all these matters I must observe that Mr Hunter has advanced
these submissions with relative calm and restraint and with as much
deference as he considers should be employed in raising delicate and
unpalatable matters. Nevertheless, I do not consider that there is any
reasonable basis upon which I should disqualify myself from hearing this
application. I have been involved in prior matters involving Mr Hunter,
including his unsuccessful applications to bring proceedings under the
Vexatious Proceedings Restriction Act. I have given reasons which
explain, I hope in modest terms, my conclusions in those matters. The
first of those matters was in 2003 and the second in 2008. The present
proceedings are entirely fresh and although it is clear that I take a different
view of the submissions advanced by Mr Hunter in many respects, that
does not mean that I am biased or prejudiced nor does it give rise to any
reasonable suspicion of bias. I therefore decline his submission that I
should not sit on this matter and I will deal with the application on its
merits.
18 I consider that the action which is proposed in the papers filed by
Mr Hunter is replete with confusion of thought and seeks to advance
unsubstantiated and extreme allegations. I consider that it reveals no
prospect of success in the action contemplated and that it disregards the
lawful powers and obligations which the RSPCA and its officers possess
under legislation. The papers, the affidavits and the submissions
produced by Mr Hunter this morning all have features which were decided
in the previous cases of Hunter v RSPCA [2006] WASC 215 by
Hasluck J and by myself in Hunter v RSPCA in 2008 to be vexatious. I
consider that there is no prima facie ground for the proceedings and that
leave to commence them should be refused.

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