Bride v Shire of Katanning [2017] WASCA 59

In Shire of Katanning v Bride [No 2] [2016] WASC 314 an order was made under the Vexatious Proceedings Restriction Act 2002 (WA), that:

“The first and second defendants, either personally or in a representative capacity, are hereby prohibited from instituting any action, proceeding, appeal, counterclaim or other application in any Court of the State Western Australia against the plaintiff in respect of any claim or matter:

(i) proceedings alleging fraud or unlawful conduct arising from or in connection with the Shire’s conduct in Supreme Court proceedings CIV 2064 of 2007, CIV 2170 of 2009, CIV 2994 of 2009 and CIV 2853 of 2010, District Court proceedings APP 101 of 2005, CIV 2297 of 2002, Magistrates Court proceedings 19525 of 2004 and any interlocutory applications heard therein, or appeals therefrom;

(ii) proceedings relating to or arising from the Shire’s conduct in asserting that the first and second defendant in their personal capacities or as trustees for the Pinwernying Trust are liable to pay to the Shire rates in respect of Lot 29 on Diagram 62969, Certificate of Title Volume 1682 Folio 357 (Lot 29) pursuant to the Local Government Act 1995 (WA) for the period of 1984 to 2011 (and continuing until such time as Mr Bride, Mrs Bride or the Trust cease to be the ‘owner’ of Lot 29 pursuant to s 1.4 of the Local Government Act 1995; and

(iii) proceedings asserting that the first and second defendants in their personal capacities or as trustees for the Pinwernying Trust are not liable to pay to the Plaintiff rates in respect of Lot 29 pursuant to the Local Government Act 1995.

The applicant had commenced more than 60 applications in State and Federal courts, in support of which a schedule of a dozen decisions in the West Australian District Court, Supreme Court of Western Australia and the Court of Appeal of the Supreme Court of Western Australia have been produced. In 2002, the Shire commenced proceedings against Mr Bride in the Magistrates Court of Western Australia for outstanding rates and charges in respect of land between 1985 and 2004.

Trueline Investments Pty Ltd and Ors v Tricontinental Corp Ltd and Ors [1988] FCA 832 (19 February 1988) (Wilcox J) Bride and Anor, Re E.J.; Stewart,G.S. and Anor, Ex Parte [1988] FCA 395 (26 July 1988) (Of The State Of Western Australia, General Division, French J.) Bride, E.J. v Australia Bank Ltd [1988] FCA 394 (26 July 1988) (French J.) Bride, E.J. and Anor v Australian Bank Ltd and Anor [1988] FCA 710 (05 December 1988) Bride, E.J. v Australian Bank Ltd [1989] FCA 636 (25 October 1989) (French J.(1)) Bride, E.J. and W.M. v Stewart, B.G. [1989] FCA 650 (25 October 1989) (French J.(1)) Bride, E.J. and W.A. (As Trustee of the Pinwernying family Trust) v Stewart, B.G. [1990] FCA 2 (18 January 1990) (French J.(1)) Bride, E.J. and Anor (As Trustees of the Pinwernying Family Trust) v Stewart, B.G. [1990] FCA 3 (19 January 1990) (French J.) Bride, E.J. v Stewart, B.G. [1990] FCA 419 (06 August 1990) (General Division, French J.(1)) Re Bride, E.J. [1990] FCA 756 (06 November 1990) (General Division, French J.) Bride, E.J. v Stewart, B.G. [1991] FCA 444 (02 August 1991) (Neaves(1), Lee(1) and Olney(1) JJ.) Bride, E.J. v Australian Bank Ltd [1992] FCA 679 (07 September 1992) (French J.) Bride & Anor v Hungerfords [1994] HCATrans 140 (09 December 1994) (Brennan J, Dawson J, McHugh J) Bride and Anor v Fitzgerald and Anor [1996] HCATrans 376 (03 December 1996) (Dawson J, McHugh J, Gummow J) Bride and Anor v Freehill Hollingdale and Page [1996] HCATrans 409 (23 December 1996) (Dawson J, Toohey J, Kirby J) Bride and Anor v Australian Bank Ltd and Ors [1996] HCATrans 408 (23 December 1996) (Dawson J, Toohey J, Kirby J) Re: Bride, Edward James and Anor as Trustees of the Pinwernying Family Trust; and Ex Parte: KMG Hungerfords (A Firm) [1997] FCA 1294 (26 November 1997) (French J) Bride, Edward James v KMG Hungerfords (A Firm) [1998] FCA 412 (23 April 1998) (Carr, Branson and R D Nicholson JJ) Bride v The Australian Bank Ltd [1999] WASCA 88 (02 July 1999) (Wallwork J, Wheeler J, Miller J) Bride v The Australian Bank Ltd [1999] WASC 110 (30 July 1999) (Master Bredmeyer) Bride v The Australian Bank Ltd [1999] WASC 122 (06 August 1999) (Master Bredmeyer) Edward James Bride as trustee of the Pinwernying Family Trust v Stewart [1999] WASCA 116 (09 August 1999) (Ipp J, Wallwork J, Parker J) Bride and Anor v HMG Hungerfords [1999] HCATrans 356 (21 October 1999) (McHugh J, Kirby J)  Bride v Official Trustee in Bankruptcy [1999] FCA 1519 (03 November 1999) (Boon Jr) Bride v Anglo Australian Foods Pty Ltd [2000] WASCA 124 (10 May 2000) (Pidgeon J, Parker J, McKechnie J) Bride v Australian Bank Ltd [2000] WASC 164 (20 June 2000) (Parker J) Edward James Bride and Wendy Margaret Bride as Trustees of the Pinwernying Family Trust v The Australian Bank Ltd [2001] WASCA 58 (01 March 2001) (Master Bredmeyer) Bride and Ors v Anglo Australian Foods and Ors [2001] HCATrans 414 (25 October 2001) (Gleeson CJ, Callinan J) Bride v Stewart [2001] WASCA 407 (13 December 2001) (Wallwork J, Hasluck J, Olsson Auj) Bride v Shire of Katanning [2003] WADC 92 (23 April 2003) (Registrar Kingsley) Commonwealth Bank of Australia v Bride [2004] WASC 177 (17 August 2004) (Em Heenan J) Bride v Campbell-Smith [2004] FMCA 848 (08 November 2004) (McInnis FM) Bride and Anor v Campbell-Smith and Ors [2005] HCATrans 799 (06 October 2005) (Gummow J, Kirby J) Bride v Commonwealth Bank of Australia [2007] WASCA 91 (04 May 2007) (Wheeler JA) Bride v Commonwealth Bank of Australia [No 2] [2007] WASCA 225 (26 October 2007) (Wheeler JA) Commonwealth Bank of Australia v Bride [No 2] [2008] WASC 245 (29 October 2008) (Em Heenan J) Bride v Commonwealth Bank of Australia [No 3] [2009] WASCA 129 (27 July 2009) (Martin CJ, Wheeler JA, Miller JA) Shire of Katanning v Bride [No 2] [2011] WASC 248 (20 September 2011) (Allanson J) Bride v Shire of Katanning [2013] WASCA 154 (27 June 2013) (Newnes JA, Murphy JA, Edelman J) Shire of Katanning v Bride [No 4] [2014] WASC 343 (26 September 2014) (Chaney J) Shire of Katanning v Bride [2016] WASC 118 (10 March 2016) (Tottle J) Bride v Shire of Katanning [2016] WASCA 106 (23 June 2016) (Newnes JA, Mitchell J).

Mr Bride’s defence included a claim that the Australian Bank was the mortgagee in possession of Lot 29 at the relevant time and was therefore liable for the rates. There were a number of judicial findings on the question of whether the Australian Bank was the ‘mortgagee in possession’ of Lot 29 between 1984 and 2005.  In Bride v Australian Bank Ltd [2000] WASC 116 (at [141]) Parker J held that there was insufficient evidence to conclude that the Australian Bank took possession of Lot 29 in 1984 (and, therefore, did not reach a finding that the Australian Bank was the mortgagee in possession). In Bride v The Australian Bank Ltd [2000] WASC 310, Acting Master Chapman struck out Mr Bride’s statement of claim, which alleged, amongst other things, that the Australian Bank was the mortgagee in possession, on the basis that the issue which he was seeking to agitate had already been determined in previous proceedings. In Bride v Shire of Katanning [2003] WADC 92, Registrar Kingsley held that the allegation that the Australian Bank was the mortgagee in possession of Lot 29 had been determined by Parker J in [2000] WASC 116 and Acting Master Chapman in [2000] WASC 310, and that the application was a collateral attack on both decisions.

Mr Bride appealed to District Court and was unsuccessful:  Bride v Shire of Katanning [2007] WADC 116 per O’Brien DCJ; Mr Bride applied to the Supreme Court for an extension of time within which to appeal the District Court decision.  Martin CJ granted leave to appeal:  Bride v Shire of Katanning [2008] WASC 131. Following the grant of leave, Mr Bride and the Shire signed consent orders, setting aside the orders of O’Brien DCJ and the decision of the Magistrate and remitting the matter back to the Magistrates Court for rehearing. Mr Bride then filed a counterclaim in that remitted matter for $2.4 million, taking it out of the jurisdiction of the Magistrates Court.  Proceedings were transferred to the Supreme Court of Western Australia. Summary judgment and strike-out of the defence and counterclaim of Mr Bride was dismissed by Martin CJ, who held that there were contentious issues of fact and law that should be determined at trial:  Shire of Katanning v Bride [2011] WASC 80.

Allanson J held that the Australian Bank was never in ‘actual possession’ of Lot 29, as required by the Local Government Act.  His Honour held that at all times Mr Bride was the registered proprietor, and, if the Bank were not in possession, he had the right of possession, and thus was the ‘owner’ under the Local Government Act:  Shire of Katanning v Bride [No 2] [2011] WASC 248. Mr Bride appealed to the Court of Appeal, which found, for the first time, that the Bank was a mortgagee in possession of Lot 29, at least from 1989:  Bride v Shire of Katanning [2013] WASCA 154 per Newnes JA, Murphy JA and Edelman J. Their Honours however concluded that, as Mr Bride had re‑taken possession of Lot 29, he was still liable for the outstanding rates (pursuant to s 6.55). Mr Bride applied for special leave to appeal to the High Court, and was unsuccessful. After the primary application had been decided, the counter-claim needed to be resolved. Mr Bride successfully applied for Allanson J to recuse himself: [2011] WASC 248. The cross-claim was later dismissed by Chaney J:  Shire of Katanning v Bride (No 4) [2014] WASC 343; and an appeal to the Court of Appeal was dismissed as having no reasonable prospect of  success:  Bride v Shire of Katanning [2015] WASCA 77 per Newnes and Murphy JJA.

There were allegations of improper conduct by the Shire, which had already been dismissed both in the Supreme Court of Western Australia in [2014] WASC 343 (at [37]-[38] and [43]) and the Court of Appeal of the Supreme Court of Western Australia in [2015] WASCA 77 (at [20]-[25] and [31]-[36]).

Click to access shire-of-katanning-v-bride-no-2-2016-wasc-314.pdf


In Bride v Shire of Katanning [2017] WASCA 59 the appellants sought leave to appeal against this decision, and alleged that “…the unlawful removal of Her Majesty on 1 January 2004 has to date never been rectified and the Courts in Western Australia are acting outside the perimeters of the Australian Constitution and are at law a ‘Coram non Judice’.” The court responded that:

“These grounds seek to rehash arguments that have time and again been rejected:  see, for instance, Shaw v Jim McGinty in his capacity as Attorney General [2006] WASCA 231Glew v Shire of Greenough [2006] WASCA 260Glew v Shire of Greenough [2007] HCATrans 520O’Connell v The State of Western Australia [2012] WASCA 96Hedley v Spivey [2012] WASCA 116. For the reasons set out in (among others) those earlier decisions, these grounds are entirely without merit.”

Click to access bride-v-shire-of-katanning-2017-wasca-59.pdf

In Bride v Shire of Katanning [No 2] [2017] WASCA 96 the appellants applied to be granted leave to set aside the costs order, on the grounds that a ‘Common Law Grand Jury’ was convened at the Returned & Services League hall at Werribee in Victoria, and that the decisions of a ‘Grand Jury‘ override the decisions of the court, and it is therefore “unable to make lawful orders in relation to costs”. The court held that the application is frivolous and vexatious, and utterly misconceived, providing no arguable basis for varying or setting aside the costs order.

Click to access bride-v-shire-of-katanning-no-2-2017-wasca-96.pdf

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