Andrei Vatarescu v The Commonwealth of Australia and the Australian Capital Territory
[2013] ACTSC 270
•20 December 2013
ANDREI VATARESCU v THE COMMONWEALTH OF AUSTRALIA and THE AUSTRALIAN CAPITAL TERRITORY
[2013] ACTSC 270 (20 December 2013)
PRACTICE AND PROCEDURE – summary judgment – where defendants claim proceedings are an abuse of process, frivolous and vexatious and do not disclose an identifiable cause of action – proceedings struck out and judgment entered
PRACTICE AND PROCEDURE – vexatious litigant – application by defendant that plaintiff be declared a vexatious litigant – meaning of “frequently instituted vexatious proceedings” Supreme Court Act s 67A – whether “proceedings” include appellate proceedings – “frequently” is a lesser threshold than “habitually and persistently” – declaration not made
WORDS AND PHRASES – “frequently”, “vexatious”, “proceedings”
Supreme Court Act1933 (ACT) s 67A
Judiciary Act 1903 (Cth) s 77RN
Federal Court Rules2011 (Cth) r 6.02
Court Procedure Rules 2006 (ACT) s 1147
Attorney-General v Wentworth (1988) 14 NSWLR 481
Attorney-General for the State of Victoria v Horvath [2001] VSC 269
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478
In re Vernazza [1960] 1 QB 197
National Australia Bank Limited v Freeman [2006] QSC 86
Jones v Skyring (1992) 66 ALJR 810
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Ramsay v Skyring [1999] FCA 907
Vatarescu v Commonwealth of Australia [2008] ACTSC 57
Vatarescu v Commonwealth of Australia [2010] ACTCA 7
Vatarescu v Commonwealth of Australia [2012] ACTSC 96
Vatarescu v Commonwealth of Australia [2013] ACTCA 8
von Reisner v Commonwealth (2009) 177 FCR 531
Blackstone’s Commentaries on the Law of England (Cavendish Publishing, 2001) Volume IV
No. SC 346 of 2013
Judge: Master Mossop
Supreme Court of the ACT
Date: 20 December 2013
IN THE SUPREME COURT OF THE )
) No. SC 346 of 2013
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:ANDREI VATARESCU
Plaintiff
AND:THE COMMONWEALTH OF AUSTRALIA
First Defendant
AND:THE AUSTRALIAN CAPITAL TERRITORY
ORDER
Judge: Master Mossop
Date: 20 December 2013
Place: Canberra
THE COURT ORDERS THAT:
1. The proceedings against each of the defendants are struck out and judgment is entered in favour of each defendant against the plaintiff.
2. The plaintiff is to pay the defendants’ costs of the proceedings except the costs of the first defendant of the application referred to in order 3.
3. The first defendant’s application that the plaintiff be declared a vexatious litigant is dismissed.
Application
The Commonwealth and the Australian Capital Territory have brought applications seeking to have the plaintiff’s Originating Application and Statement of Claim dismissed and judgment entered in their favour. In addition, the Commonwealth has sought an order that the plaintiff be declared a vexatious litigant such that he must seek the leave of the Court to initiate any further proceedings against the Commonwealth, its officers, employees, servants or agents.
Background
There have been previous proceedings between the plaintiff and both defendants. A short history of those proceedings is as follows.
Mr Vatarescu was the defendant in criminal proceedings brought against him in the Magistrates Court. The substantive charge against him was stalking contrary to s 35 of the Crimes Act 1900 (ACT). There was also subsequently a charge of failing to appear contrary to s 49 of the Bail Act 1992 (ACT). The stalking charge was ultimately dismissed on 22 February 2007 when the prosecution offered no evidence. The failure to appear charge was found proven but dismissed by the magistrate on 27 February 2007 pursuant to a statutory power to do so.
Mr Vatarescu commenced proceedings (SC 428 of 2007) in relation to his prosecution in the criminal proceedings. His statement of claim was struck out by Master Harper: Vatarescu v Commonwealth of Australia [2008] ACTSC 57. He appealed against the costs order made against him by the Master and that appeal was dismissed by Gray J on 19 September 2008. An application for leave to appeal to the Court of Appeal was dismissed by Penfold J on 6 April 2010: Vatarescu v Commonwealth of Australia [2010] ACTCA 7.
Notwithstanding his difficulties with pleading the case it went to trial in November 2010 as a claim for malicious prosecution. Penfold J gave judgment for the defendants on 15 June 2012: Vatarescu v Commonwealth of Australia [2012] ACTSC 96. Burns J heard and dismissed an application for leave to appeal out of time to the Court of Appeal on 6 February 2013: Vatarescu v Commonwealth of Australia [2013] ACTCA 8.
The current proceedings
The Originating Application in the present case was filed on 9 September 2013. The relief which it seeks is:
1. ...
a. The defendants are held to account for their fabrications of evidence in the Supreme Court and the Magistrates Court, for perjury and attempts to pervert the course of justice.
b. Compensation commensurate with the gravity of the defendants’ actions shall be awarded.
2. Any other orders that the Court considers appropriate.
The Originating Application also sets out the grounds for the application.
1. The defendants admitted in the Supreme Court during mention of case ACTCA 8, on 6 February 2013, to the criminal offences of fabrication of evidence in the Supreme Court and the Magistrates Court;
2. Paragraph 9 of the ruling in case ACTCA 8 of 2013 confirms that the trial judge in case SC 0428 of 2007 deliberately disregarded critical and decisive evidence. That paragraph reads: “In his submissions, the applicant has said that paragraph 5(C) is the most important ground. That reads, and I quote, “The defence barristers fabricated two “encounters” in their submissions to the Supreme Court.” It is not abundantly clear to me precisely how that ground of appeal could be said to have reasonable prospects of success in terms of overturning the decision made by her Honour in circumstances where the applicant was not able to point me to that part of her Honour’s decision where her Honour dealt with that issue."
3. It is clear from the last sentence that the trial judge chose to ignore statements of fabricated evidence made by the defence barristers in their written submissions after the trial hearings. The defendants lacked a valid defence and had to resort to perjury.
In the originating application the plaintiff indicates that the application is not supported by any affidavits and continues:
No affidavit is needed from the plaintiff because the matters of the application have already been proved in Supreme Court with the defendants admitting to fabrications of evidence; otherwise, the ruling in case ACTCA 8, on 6 February 2013, would have pointed out the absence of supporting evidence for the statement made by the plaintiff.
Notwithstanding that the proceedings were commenced by Originating Application, a Statement of Claim was filed with the Originating Application: cf. Court Procedures Rules rr 50(2), 60.
In the Statement of Claim the plaintiff states his claim for relief somewhat differently to the Originating Application. He claims:
A. Compensation from the First Defendant, representing the Australian Federal Police (AFP) for:
1. Fabrication of evidence in the Supreme Court – case SC 0428 of 2007;
2. Perjury in the Magistrates’ Court – case CC 2003/1834;
3. Committing acts of perverting the course of justice.B. Compensation from the Second Defendant, representing the Office of the Director of Public Prosecutions (DPP), for:
1. Fabrication of evidence in the Supreme Court – case SC0428 of 2007;
2. Perjury in the Magistrates’ Court – case CC 2003/1834;
3. Committing acts of perverting the course of justice.
The balance of the Statement of Claim articulates the case against each of the two defendants. In summary in relation to the first defendant the statement of claim alleges:
(a) The first defendant admitted that defence barristers in proceedings SC 428 of 2007 fabricated “two encounters” between the plaintiff and the complainant in their submissions to the Supreme Court.
(b) That fabrication covered up the perjury committed by the defendants in the Magistrates Court where the defendants fabricated evidence to make up a false case against the plaintiff.
(c) In his Honour’s decision in Vatarescu v Commonwealth of Australia [2013] ACTCA 8 Justice Burns “confirmed, approved and endorsed” that the defence barristers had fabricated the “two encounters”.
(d) Because the matters alleged in SC 428 of 2007 involved fabricated evidence and perjury, it follows from Justice Burns’ ruling that the judgment of Justice Penfold in SC 428 of 2007 was “detached from and distorted the plaintiff’s matters of the originating claim”.
(e) Consequently the Supreme Court should “activate the necessary court procedures to rectify a blatant miscarriage of justice evidenced by the self-contradictory ruling in case ACTCA 8 of 2013.”
(f) Particulars of the fabrication of evidence, perjury and perverting the course of justice are that the Australian Federal Police (“AFP”) should have admitted in 2007 that they fabricated evidence before the Magistrates Court, that they should have admitted in 2010 that they had fabricated evidence before the Supreme Court and that the AFP “perverted the course of justice by deliberately misleading the ACT Courts of Law.”
The claim against the second defendant is in similar terms as the claim against the first defendant except that instead of referring to the actions of the AFP, it refers to the actions of the Director of Public Prosecutions (“DPP”). There is no pleading to link liability for the conduct of the DPP to the Territory.
The statement of claim also adds, apparently in relation to the claim against the Territory:
1. The Director of Public Prosecutions who approved that fabrication of evidence and perjury was Richard Refshuage [sic] who is now a Justice of the Supreme Court. This material fact lead the Supreme Court to repeatedly pervert the course of justice at the request of the defendants;
2. CRIMES ACT 1900 - SECT 327.
Application for summary judgment
The application for summary judgment is made pursuant to rule 1147 of the Court Procedures Rules. That rule provides:
(1)A defendant may apply to the court for summary judgment against a plaintiff at any time after filing a notice of intention to respond or defence.
NotePt 6.2 (Applications in proceedings) applies to an application under this rule.
(2)The court may give judgment for the defendant against the plaintiff for the plaintiff’s claim for relief (or part of it) if satisfied—
(a)that the claim (or part of it) is frivolous or vexatious; or
(b)that there is a good defence to the claim (or part of it) on the merits; or
(c)that the proceeding should be finally disposed of summarily or without pleadings.
(3)The court may make any other order it considers appropriate.
The defendants who were both represented by Mr Sharwood, argue that the proceedings are an abuse of process as well as vexatious and frivolous. While they acknowledge that the summary disposal of proceedings is reserved for claims that are absolutely hopeless: Dey v Victorian Railways Commissioners (1949) 78 CLR 62 at 90–91, they submit that this is clearly such a case because the proceedings disclose no identifiable cause of action and the plaintiff is estopped from pursuing any enquiry in respect of proceedings which have been judicially determined.
Although it is not easy to understand the Originating Application and Statement of Claim, read with the benefit of the plaintiff’s written submissions filed in relation to the present applications, it is possible to discern that the plaintiff is continuing to pursue redress in relation to what he sees as the unjust prosecution of him in proceedings CC 2003/1834.
In relation to proceedings in the Magistrates Court he says that the falsity of the allegations that he was stalking the complainant is demonstrated by the AFP’s inability to locate him for at least one year. He said that if the allegations of stalking against him were accurate then the police would have been able to find him where he was alleged to have been stalking the complainant. He submits that the absence of any investigation by the AFP and/or the DPP in relation to the case “proves that the defendants cooperated in the fabrication of evidence”. He submits that it was “in the interest of both defendants to generate additional “workload” for statistical and funding purposes”.
I note at this point that Penfold J dealt with the issue of the AFP’s inability to locate Mr Vatarescu at [2012] ACTSC 96 at [194], [252]–[255].
In relation to proceedings in the Supreme Court, the plaintiff submits that the defendants could not produce any document identifying two incidents relevant to the charge of stalking and alleges that “the defence barristers fabricated two encounters-between the plaintiff and the complainant-on page 13 of their written submissions dated 18 December 2009 after the trial hearings took place.” Furthermore, he alleges that the fabrication is reiterated in a footnote on page 14 of those submissions.
The submissions that the plaintiff referred to were tendered by the defendants on the current application. The submissions set out a chronology of events relevant to the bringing of the criminal proceedings in the Magistrates Court. They record that the complainant made a statement to the Australian Federal Police dated 12 February 2003 which became Exhibit C before Penfold J. They summarise some of the statement, quote a portion of it and then continue:
The statement then refers to the plaintiff seeking personal protection orders from the Magistrates Court. Finally, it refers to [the complainant] encountering the plaintiff on two occasions on 6 February 2003.
The submissions then went on to address an AFP minute signed by an Acting Sergeant dated 7 January 2004 which became Exhibit S before her Honour. That minute recorded the Acting Sergeant’s opinion that the plaintiff engaged in conduct that satisfied the requirements of s 35(2) of the Crimes Acts 1900 (ACT) but that the brief may not substantiate the intent required by section 35(1). The submissions then address what the Court should make of that minute and conclude “It is submitted that there is no doubt that the defendant did engage in conduct falling within section 35(2) as stated by [the Acting Sergeant].” There is then a footnote reference about which the plaintiff complains which is as follows:
In his submissions the plaintiff seemed to argue that section 35(2) of the Act could not be satisfied because there was not evidence of two occasions of stalking. Whilst the first defendant submits this point is academic, it is nonetheless wrong because the AFP Statement of Facts: Exhibit B, refers to two relevant acts of stalking on 6 February 2003 at page 3.
Neither the statement of facts (Exhibit B) nor the statement of the complainant (Exhibit C) were in evidence before me. For the purposes of this application, and notwithstanding that in my view it is unlikely, I have proceeded on the basis most favourable to the plaintiff that the submissions made by counsel for the Commonwealth were not in fact supported by the evidence.
In relation to the decision of Justice Penfold in SC 428 of 2007, the plaintiff submits that in the application for leave to appeal, Justice Burns found that Justice Penfold had “deliberately disregarded critical and decisive evidence” namely the evidence that defence barristers fabricated two encounters in their submissions to the Supreme Court. Further, he says that the catchwords to her Honour’s judgments which included, “plaintiff unable to be served with personal protection orders granted to complainant” confirms that he was not, as charged, stalking the complainant outside the residential building. He submits that any judgment or ruling obtained by means of perjury becomes null and void and that Justice Penfold’s judgment was based on false statements and fabricated evidence. In his written submissions he identifies the court orders sought by the plaintiff as being:
6.1 The acts of aggravated perjury and perjury committed by the defendants shall be referred by the Court to the relevant authorities for criminal prosecution;
6.2 The defendants shall lay charges against the plaintiff – under Section 35 of the Crimes Act 1900 – so he can clear his name of the criminal offence of stalking which has caused him a great deal of damage over the last 10 years;
6.3 The charges of section 6.2 above shall be accompanied by a guarantee of compensation – from the defendants to the plaintiff – to be paid as soon as the criminal charges are proved to be unsubstantiated. The damages shall be commensurate with the gravity of aggravated perjury and perjury through fabricated evidence and false statements committed by the defendants, as well as with their acts of perverting the course of justice over a ten-year period.
It is clear, in my view, that the plaintiff is seeking to use these proceedings to agitate issues which were determined against him by Penfold J in circumstances where he did not appeal against the decision within time and has been refused leave to appeal against that decision out of time. The proceedings are, as a result, an abuse of the Court’s processes. Insofar as he now adds allegations of fabrication of evidence by barristers appearing for the defendants in those proceedings or an alleged finding of Burns J in relation to that issue, the new allegations are misconceived and do not disclose any arguable cause of action.
The plaintiff was, and remains, disaffected by the course of proceedings against him in the Magistrates Court notwithstanding that those proceedings were terminated in his favour. He had the opportunity to bring proceedings to recover compensation and was unsuccessful. He had a right to appeal from that decision. He did not do so within the time permitted by the Court Procedures Rules. He was refused leave to appeal out of time by Burns J. In those circumstances, the result of that case are final and binding upon him. The judgment of Penfold J is a judgment of a superior court of record and is valid and binding upon the plaintiff until it is set aside on appeal. It is therefore completely misconceived to suggest that it was somehow “null and void”. On the contrary the decision of Penfold J remains binding upon him. The judicial system places great weight on finality and the proceedings brought by the plaintiff have reached finality. To seek to reopen the issues determined in the proceedings before Penfold J amounts to an abuse of process.
Insofar as the plaintiff calls in aid the reasons of Burns J, his argument is misconceived. First, Burns J never “confirmed approved and endorsed” the plaintiff’s suggestion that the defence barrister had fabricated the “two encounters” referred to in the first defendant’s submissions. Rather, his reasons made the point that it would be hard for the plaintiff to establish any error on Penfold J’s part in relation to the issue of “two encounters” if the plaintiff could not point to where that issue featured in her Honour’s decision. In other words, the plaintiff was required to demonstrate that there was some arguable error in the trial judge’s decision and he had not done so. Second, whatever the content of Burns J’s reasons, his Honour refused leave to appeal out of time. Given that his Honour was sitting as the Court of Appeal: Supreme Court Act s 37J, the only avenue of appeal available was by way of an application for special leave to appeal to the High Court, which was not made. Therefore the position remains that the decision of Penfold J is a final and binding determination of the plaintiff’s cause of action.
Insofar as the plaintiff might be seeking to establish some other cause of action which does not amount to a collateral challenge to the decision of Penfold J, the proceedings do not disclose any cause of action. The written submissions of counsel could not involve perjury because the submissions were not a “sworn statement”. Perjury, fabrication of evidence and perversion of the course of justice are not torts and do not, of themselves, give rise to a civil cause of action. The remedy for these matters is with the criminal law. At common law the punishment for perjury was death but by the time Blackstone wrote his Commentaries, the author was pleased to report that the law had moved on and under statute the punishment included a fine, imprisonment and having both ears nailed to the pillory: Blackstone’s Commentaries on the Law of England (Cavendish Publishing, 2001) Volume IV, Chapter 10 at 136. Now the statutory provisions relevant to perjury are ss 702–703 of the Criminal Code 2002. Therefore the claims for compensation, to the extent to which they go beyond matters agitated before Penfold J, do not disclose any reasonable cause of action. Contrary to the suggestion in the plaintiff’s written submissions there is certainly no capacity of the Court to, by order, compel prosecuting authorities to bring proceedings or refer matters for investigation for the purposes of criminal prosecution.
For the above reasons the proceedings are frivolous and vexatious for the purposes of r 1147. They are an abuse of process and do not disclose any reasonable cause of action. They meet the high threshold for summary dismissal required by rule 1147.
I am not satisfied that the defects in the proceedings are defects which could be cured by an amended pleading. As a consequence, it is appropriate to dismiss the plaintiff’s Originating Application and give judgment in favour of each of the defendants. In those circumstances it is also appropriate that the plaintiff pay the defendants’ costs of the proceedings.
Application to have plaintiff declared a vexatious litigant.
The First Defendant has also made an application that the plaintiff be declared a vexatious litigant. Section 67A of the Supreme Court Act1933 provides:
(1) In this section:
aggrieved person, in relation to proceedings, means a person aggrieved by the institution of those proceedings.
proceedings means any cause, matter, action, suit or proceeding of any other kind within the jurisdiction of any court or tribunal and includes any proceeding taken in connection with any such legal proceedings pending before any court or tribunal.
vexatious proceedings means proceedings—
(a) the purpose of which is to harass or annoy, to cause delay or for some other ulterior purpose; or
(b) that lack reasonable grounds.
(2) If, on the application of the Attorney-General or an aggrieved person, the court is satisfied that a person has frequently instituted vexatious proceedings, the court may declare the person to be a vexatious litigant.
(3) A declaration may be expressed to apply only in relation to a particular type of matter.
(4) A declaration may be expressed to be subject to the conditions the court considers appropriate.
...
The Commonwealth is clearly an aggrieved person within the meaning of the section because it is a party to the current proceedings and relief is sought against it. It is therefore entitled to make an application under s 67A that the plaintiff be declared a vexatious litigant. The threshold that must be reached before the Court may exercise its discretion under subsection (2) is that it must be satisfied that the person “has frequently instituted vexatious proceedings”.
Several features of the statutory provision should be noted at this point.
First, by adopting the phrase “frequently instituted vexatious proceedings” the legislature has adopted a less onerous test for the making of a declaration than that used in earlier statutory provisions which used “habitually and persistently and without reasonable ground”. In this respect the provision is similar to the provision of the High Court Rules considered in Jones v Skyring (1992) 66 ALJR 810 and reflected now in s 77RN of the Judiciary Act 1903 (Cth) and different from the more onerous formula considered in re Vernazza [1960] 1 QB 197.
Second, the provision avoids the tautology of the expression “frequently and without reasonable ground instituted vexatious legal proceedings” identified by Toohey J in Jones v Skyring by simply referring to the defined term “vexatious proceedings”.
Third, the definition of “proceedings”, to which I will return below, extends to proceedings in any court or tribunal so that it is not necessary for an application in a particular court or tribunal that all of the proceedings relied upon be in that particular court or tribunal. It therefore avoids the difficulties that arose in relation to the previous rule in the Federal Court which limited consideration to proceedings in the Federal Court itself: von Reisner v Commonwealth (2009) 177 FCR 531 at [16], [31].
Fourth, this section must be applied having regard to the fundamental principle of the legal system that every person has a right of access to a court to seek remedies as a consequence of an alleged infringement of his or her rights. Because an order made under a provision such as s 67A qualifies that right, it must be treated as a serious matter: Ramsay v Skyring [1999] FCA 907 at [51]: von Reisner v Commonwealth (2009) 177 FCR 531 at [24]. However a provision such as 67A gives effect to an important countervailing policy described by Sackville J in Ramsay at [52]:
As Toohey J pointed out in relation to the equivalent High Court provision, the rule is designed to protect the Court’s own processes against unwarranted usurpation of its time and resources to avoid loss caused to those who face actions which lack substance: Jones v Skyring, at 814. Linked with that objective is the need to protect the community, including litigants who wish their disputes to be resolved in an orderly and expeditious manner, against disruption of the court system flowing from the repeated institution of groundless proceedings.
Fifth, while those fundamental principals may be of some significance in interpreting the meaning of terms within the section, they will be of most significance at the discretionary stage once the threshold set by the statute has been passed. That threshold is still a very high one because it requires frequent institution of vexatious proceedings. The Territory provision has not (yet) been put in a form similar to rule 6.02 of the Federal Court Rules2011 which empowers the Court to make a vexatious proceedings order where the person has commenced “a vexatious proceeding against another person in the Court” [emphasis added]. Such a provision makes the threshold lower and hence expands the scope of discretion as to whether or not an order is appropriate. Such a lower threshold would leave it open to consider as a matter of discretion whether it was appropriate to exercise such significant power where there was a single transient or even serious lapse of judgment: cf. Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [4].
In the present case there are a number of issues arising out of the text of s 67A which must be determined in order to decide the application.
Do proceedings include appeals?
In the present case the plaintiff has only previously initiated one case in this Court. That case has generated a number of different proceedings. If, for the purposes of s 67A the number of proceedings is to be determined by looking at the number of times a plaintiff has initiated a new case in the Court then on any view of the meaning of “frequently” the plaintiff could not be said to have “frequently instituted vexatious proceedings”. However, if proceedings include not only the first institution of a case but include any appeal proceedings in relation to the case then it could be said that the plaintiff has “frequently” instituted those proceedings because, as indicated by the history set out above, he has on five occasions instituted new proceedings against the Commonwealth. They are the original proceedings, the appeal against the Master’s costs order to Gray J, the application for leave to appeal heard by Penfold J, the application for leave to appeal heard by Burns J and the current proceedings.
As is made clear by the terms of section 67A, “proceedings” is a defined term. In my view, that definition extends the concept of proceedings beyond the initial institution of the case. In other words, when assessing the number of proceedings one does not simply ask how many times has the party instituted a new case but instead it is appropriate to ask on how many occasions has the party instituted either new proceedings in the original or appellate jurisdiction of the Court. That allows the current proceedings, proceedings SC 428 of 2007 and all of its subsequent appellate proceedings to be treated as not two proceeding for the purposes of the definition but as five different proceedings. In my view, that approach is compelled by the language of the definition in s 67A(1), which extends the concept of proceedings to include “any proceeding taken in connection with any such legal proceedings pending before any court or tribunal”. In my view, that permits appellate proceedings to be considered as proceedings separate from the underlying proceedings in the original jurisdiction of the Court. Although, of course, each statutory provision must be interpreted on the basis of its own language, that conclusion is consistent the decision of Ormerod LJ in reVernazza [1960] 1 QB 197 at 209–210; Jones v Skyring (1992) 66 ALJR 810 at 813; Ramsay v Skyring [1999] FCA 907; Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488.
Not only is that view compelled by the language of the definition, it is also consistent with the underlying purpose of section 67A. That purpose is to protect not only the potential defendants but also the time and resources of the Court in dealing with vexatious matters. In fulfilling that purpose, it is equally important to have regard to the time and resources that are taken with appellate proceedings as well as proceedings in the original jurisdiction of the Court. Both have equal capacity to consume the time and resources of the other parties and the Court.
Were the proceedings vexatious?
In Attorney-General v Wentworth (1988) 14 NSWLR 481, Roden J considered the meaning of vexatious in the context of a statutory provision which did not define that term. Having reviewed the authorities his Honour said (at 491):
It seems then that litigation may properly be regarded as vexatious for present purposes on either objective or subjective grounds. I believe that the test may be expressed in the following terms:
1. Proceedings are vexatious if they are instituted with the intention of annoying or embarrassing the person against whom they are brought.
2. They are vexatious if they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise.
3. They are also properly to be regarded as vexatious if, irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.
4. In order to fall within the terms of [the relevant statutory provision]:
(a) proceedings in categories 1 and 2 must also be instituted without reasonable ground (proceedings in category 3 necessarily satisfied that requirement);
(b) the proceedings must have been “habitually and persistently” instituted by the litigant.
In the context of the previous version of the Federal Court Rules, Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 at [6] said:
Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding’s legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
In the present case where the Commonwealth is relying on s 67A(1)(b), namely, proceedings that lack reasonable grounds, more is required than that the proceedings were unsuccessful. Whilst as Perram J points out, care must be taken if picking up a verbal formula, in my view it is appropriate to adopt the formulation of Roden J, namely, that the proceedings “are so obviously untenable or manifestly groundless as to be utterly hopeless”. That makes it clear that the test is a high one and is not made out merely because the case was ultimately unsuccessful or that even when it was commenced it had slender prospects.
In my view, it cannot be said that the proceedings previously commenced by the plaintiff lack reasonable grounds in the sense that they were obviously untenable or manifestly groundless. In making this finding I recognise that on the one hand some examination of the detail of the previous proceedings is necessary but also have regard to what Ashley J said in Attorney-General for the State of Victoria v Horvath [2001] VSC 269 at [28]:
the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.
The original proceedings commenced by the plaintiff were ultimately heard by Penfold J. I am not prepared to find that the plaintiff’s claim of malicious prosecution which was heard before Penfold J lacked reasonable grounds in the relevant sense. Plainly enough, the proceedings involved issues which meant the defendants could not persuade the Court to strike out or grant summary judgment in their favour based on the obvious untenability of the proceedings. The judgment in the proceedings is some 305 paragraphs over 98 pages. It was only at the point of judgment that the issues were conclusively determined against the plaintiff.
The plaintiff’s application for leave to appeal was also dismissed and it can be said that the grounds articulated in the notice of appeal do not reflect coherent grounds of appeal. The affidavit in support of the application for leave to appeal out of time addressed the issue of delay in bringing the appeal and included “Given the long delay in the handing down of the judgment, I could not wait in Canberra for the judgment, and I was not in a position to deal with any appeal procedure within 28 days.” This could provide a basis for granting leave to appeal out of time if a reasonably arguable ground of appeal was evident. While the proposed grounds of appeal may have lacked intelligibility and the application may not have been conducted as effectively as possible as a consequence of the plaintiff’s lack of legal training, in my view, it cannot be said to lack reasonable grounds in the sense of being obviously untenable or manifestly hopeless. Mr Vatarescu had an entitlement to appeal and an entitlement to apply for leave to appeal out of time.
The other proceedings that he has commenced are the two appeals from the costs decision of Master Harper. Those also failed but I am not satisfied that it can be said that they lacked reasonable grounds. Those appeals were made very difficult to succeed upon because the plaintiff did not challenge the substantive decision to which the costs order related. However, having read the decision of Penfold J in Vatarescu v Commonwealth [2010] ACTCA 7, I am not satisfied that the appeal to Gray J or the application for leave to appeal to Penfold J lacked reasonable grounds in the relevant sense.
Therefore I am not satisfied that any of the proceedings other than the current proceedings lacked reasonable grounds in the sense required by s 67A(1)(b).
Have they been commenced frequently?
The test in s 67A is that the person has “frequently instituted vexatious proceedings”. This is a lesser threshold requirement than provisions, such as those considered in Ramsay, Attorney-General v Wentworth and von Reisner v Commonwealth, which use instead the expression “habitually and persistently”.
In National Australia Bank Limited v Freeman [2006] QSC 86 Muir J said (at [30]):
“Frequently” is defined in the Shorter Oxford English Dictionary as: “At frequent or short intervals, often repeatedly; numerously”. Whether proceedings have been instituted or conducted “frequently” must be looked at in the context of litigation. In that sense “frequently” is a relative term: Jones v Cusacks (1992) 66 ALJR 815 at 816.
In the present case, because I am only satisfied that the present proceedings are vexatious proceedings within the meaning of s 67A, it cannot be said that the plaintiff has “frequently” instituted such proceedings. As a consequence, the precondition for making a declaration under s 67A(2) is not made out and the application must be dismissed.
Orders
While the first and second defendants have succeeded in their applications to have the proceedings against them struck out, the first defendant has failed in its application to have the plaintiff declared a vexatious litigant. The appropriate orders are therefore:
(1) The proceedings against each of the defendants are struck out and judgment is entered in favour of each defendant against the plaintiff.
(2) The plaintiff is to pay the defendants’ costs of the proceedings except the costs of the first defendant of the application referred to in order 3.
(3) The first defendant’s application that the plaintiff be declared a vexatious litigant is dismissed.
I certify that the preceding fifty-three (53) numbered paragraphs are a true copy of the Reasons for Judgment herein of Master Mossop.
Associate:
Date: 20 December 2013
Counsel for the Plaintiff: A Vatarescu in person
Counsel for the First and Second Defendants: W L Sharwood
Solicitors for the First Defendant: HWL Ebsworth
Solicitors for the Second Defendant: ACT Government Solicitor
Date of hearing: 6 December 2013
Date of judgment: 20 December 2013
5
14
3