Annesley v Hammond
[2023] VCC 2131
•28 November 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
APPEALS AND POST SENTENCE APPLICATIONS LIST
Case No. AP-23-0175
| PAUL DAVID ANNESLEY | Appellant |
| v | |
| CHRISTOPHER J HAMMOND | First Respondent |
| and | |
| ROBIN KISSEL | Second Respondent |
-and-
Case No. AP-23-0176
| PAUL DAVID ANNESLEY | Appellant |
| v | |
| CHRISTOPHER J HAMMOND | First Respondent |
| and | |
| ROBERT GEORGE MURCH | Second Respondent |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 7 June 2023 | |
DATE OF JUDGMENT: | 28 November 2023 | |
CASE MAY BE CITED AS: | Annesley v Hammond & Ors | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2131 | |
REASONS FOR JUDGMENT
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Subject:PERSONAL SAFETY INTERVENTION ORDER – VEXATIOUS PROCEEDINGS
Catchwords: Personal safety intervention order – vexatious proceedings
Legislation Cited: Personal Safety Intervention Orders Act 2010 (Vic), Vexatious Proceedings Act 2014; Family Violence Protection Act 2008
Cases Cited:Paul Annesley v Ors v Victoria Police & Ors (Ruling), (Unreported, VCC, 11 June 2020; Murch & Ors v Annesley & Ors [2021] VSCA 83; Austin v Dobbs [2019] VSC 355
Judgment: The appellant’s appeal is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The appellant appeared in person | - |
| For the First Respondent | Ms M Minifie (solicitor) | Victoria Police |
| For the Second Respondents | Mr P J Smallwood | Wilkinson Lawyers |
Table of Contents
Introduction
Procedural history
Appeal to the County Court against the two PSIOs
Litigation Restraint Order
The Criminal Proceedings
Application by the Appellant to the Magistrates’ Court seeking revocation of the two PSIOs
Magistrate Stuthridge’s decision on 23 January 2023
Evidence before the County Court
Submissions
Submissions on behalf of the Appellant
Submissions on behalf of the Respondents
Submissions on behalf of Victoria Police
Legal Principles
Vexatious Proceedings Act
Is the appellant a restrained litigant in this proceeding?
Is obtaining leave to proceed under the Act compulsory?
Was leave granted per s52 of the Act in the Magistrates’ Court?
What is the effect of leave not being granted?
Conclusion
HER HONOUR:
Introduction
1These appeals involve two related proceedings which arise out of the same substratum of facts. Proceeding AP-23-0175 is an appeal brought by the appellant against Christopher J Hammond and Robin Kissel. Proceeding AP-23-0176 is an appeal brought by the appellant against Christopher J Hammond and Robert Murch.
2On 11 December 2020, Forbes J of the Supreme Court of Victoria, made an Extended Litigation Restraint Order against the appellant pursuant to s17(1) of the Vexatious Proceedings Act 2014 (Vic) (“the Act”) in favour of the respondents, Robin Kissel and Robert George Murch, and also in favour of R G Murch Nominees Pty Ltd (ACN 005 424 742) (“Extended Litigation Restraint Order”).
3The Extended Litigation Restraint Order provided:
“1.Pursuant to s 17(l)(a) of the … Act, each of the first, second and third defendant is restrained from commencing any proceeding, including any appeal, for a period of ten years from the date of this order, against the Plaintiffs or any of them or the second plaintiff’s son, Brett Kissel.
2.Pursuant to s 17(l)(b) of the Act, each of the first, second and third defendant is restrained from commencing any proceeding, including any appeal, for a period of ten years from the date of this order, in respect of:
a)the land referred to in certificate of title volume 8861 folio 858 being the property known as 325 Wildwood Road, Bulla in Victoria,
b)the land referred to in certificate of title volume 8274 folio 168 being the property known as 1012 Chatsworth-Wickliffe Road, Wickliffe in Victoria; or
c)the land referred to in certificate of title volume 9757 folio 053 being the property known as 1154 Chatsworth-Wickliffe Road, Wickliffe in Victoria
unless the leave of the Supreme Court or the Victorian court or tribunal in which the proceeding would be commenced, is first obtained.
3.No order as to costs.”
23The “Schedule of Parties” included at the end of the Order lists the appellant, his wife, his sister and his associates as the first defendant, second defendant, third defendant, fourth defendant and fifth defendant, respectively.
24Pursuant to the Extended Litigation Restraint Order, the appellant is prohibited from, among other things, commencing any proceeding, including any appeal, for a period of ten years in any State court or tribunal without leave of the Supreme Court, or the court or tribunal where such proceeding was first commenced, against the respondents or in respect of the land referred to in Certificate of Title, Volume 8861, Folio 858, being the property known as 325 Wildwood Road, Bulla, Victoria (“the Property”).
25On 11 January 2023, without first seeking leave as a restrained litigant, the appellant made an ex parte application to the Broadmeadows Magistrates’ Court, seeking revocation of two personal safety intervention orders made in favour of the respondents on 11 June 2020 by the County Court (“the PSIOs”). The PSIOs made on 11 June 2020 were made on appeal of two originating PSIOs originally handed down by the Broadmeadows Magistrates’ Court on 24 September 2018.
26On 11 January 2023, the learned magistrate noted the existence of the Extended Litigation Restraint Order and adjourned the appellant’s application to 23 January 2023, to facilitate service of the application on the respondents, and on Victoria Police, so that they could provide submissions. On resumption of the application on 23 January 2023, and with all parties in attendance, orders were made refusing the appellant leave to proceed.
27On 21 February 2023, the appellant filed a Notice of Appeal with the County Court.
28On 4 May 2023, the appeal came before me for directions hearing. Victoria Police, in submissions which were endorsed by the respondents, submitted that the appellant had failed to seek leave to commence proceedings as a restrained litigant at both the Broadmeadows Magistrates' Court and the County Court and the appeal should not be permitted to proceed.
29Acknowledging the fact the appellant was self-represented, I explained to him the effect of s52 of the Act and identified the general matters relating to applications for leave to proceed with which he was required to comply. I indicated to the parties that I would adjourn the matter for a short period to afford the appellant an opportunity to consider the effect of s52 and s56 of the Act, and to file any material required to initiate an application for leave to proceed. The matter was subsequently adjourned to 7 June 2023.
30On 7 June 2023, following filing and service of various materials by the parties, the appellant erroneously submitted I had granted him leave to proceed on 4 May 2023. Victoria Police, and the respondents, maintained their objection to the appeal. In general terms, they contended that the appellant had failed to seek leave to commence a proceeding in either the Magistrates’ Court or the County Court as a restrained litigant and, therefore, his appeal should not be permitted to proceed. Further, even if an application for leave to proceed as a restrained litigant was granted on 4 May 2023, because more than thirty days had passed since the date of the Magistrates’ Court Order on 23 January 2023, and the application for leave on 4 May 2023, the appeal purportedly commenced in the County Court on 21 February 2023, was a proceeding commenced in contravention of the Act and therefore was a nullity and of no effect. There was no power to extend time to commence a proceeding and, consequently, it was futile to consider the substance of the appellant’s application for leave to proceed under the Extended Litigation Restraint Order.
31It was these preliminary issues that formed the subject of the hearing on 7 June 2023.
Procedural history
32In February 2007, the appellant and his wife purchased the Property.
33In August 2013, the appellant entered into an agreement with Wayne Johnstone and his company, Bankseea Pty Ltd (“Bankseea”) to sell the Property. To fund the purchase, Mr Johnstone and Bankseea borrowed money from the ANZ Bank.
34Subsequently, Mr Johnstone and Bankseea defaulted on the loan, and the ANZ Bank commenced proceedings in the County Court seeking possession of the Property. The ANZ Bank was successful, and upon obtaining judgment in default for possession of the Property in September 2018, sold the Property as mortgagee in possession to R G Murch Nominees Pty Ltd. The respondent, Mr Murch, is a director of R G Murch Nominees Pty Ltd.
35On 22 September 2018, the respondents, Mr Robert Murch and his wife, Ms Robin Kissel, who were under the impression they had purchased the Property, attended the Property. To gain access to the Property, the respondents cut the lock off the front gate, opened it and drove through.
36Being a large rural property, the respondents drove around the Property for roughly forty minutes before encountering the appellant. At this point, the appellant pursued the respondents, ramming them with his car until they were forced to drive off the Property.[1]
[1] Paul Annesley & Ors v Victoria Police & Ors (Ruling) (Unreported, VCC, 11 June 2020, Judge Coish)
37The incident precipitated the making of various PSIOs, including two made on 24 September 2018.
38The incident also prompted Victoria Police to lay two criminal charges of reckless conduct endangering serious injury and one criminal charge of intentionally damaging property against the appellant (“Criminal Charges”).
Appeal to the County Court against the two PSIOs
39The appellant appealed the two PSIOs made on 24 September 2018.
40On 11 June 2020, Judge Coish refused the appellant’s appeals against the two original PSIOs made on 24 September 2018, and ordered two new PSIOs against the appellant. The two new PSIOs were made on an indefinite basis.
41Judge Coish’s orders prescribed the following prohibitive conditions on the appellant and restrained him from:
(a) stalking the respondents;
(b) committing prohibited behaviour against the respondents;
(c) engaging in surveillance of the respondents;
(d) electronically publishing any material in respect of the respondents;
(e) contacting or communicating with the respondents;
(f) approaching or remaining within 5 metres of the respondents;
(g) going to, or remaining within, 200 metres of the Property; and
(h) getting another person to do anything prohibited to him under the Order.
42Judge Coish imposed an additional condition precluding the appellant from making any further application pursuant to the Personal Safety Intervention Orders Act 2010 (“the PSIO Act”) in any court or jurisdiction, with respect to any matters or things which are alleged to have occurred, involving or pertaining to the respondents, prior to the making of the Order.
43Judge Coish further ordered that the only avenue of communication with the respondents available to the appellant was to be through his lawyer, on the condition he did not stalk or commit prohibited behaviour while doing so. The appellant was ordered to pay the respondents’ costs of the proceeding.
44The two PSIOs made by Judge Coish were only partly based on the appellant’s conduct on 22 September 2018. They were also based upon additional examples of unacceptable behaviour and conduct perpetrated by the appellant after the original PSIOs were made. That is, Judge Coish’s PSIOs were based on a broader factual matrix. As a whole, Judge Coish’s PSIOs were made in recognition of the following:[2]
[2] Ibid
(a) threats made by the appellant to the respondents on 15 September 2018 that they were going to jail due to their complicity with the ANZ Bank, by engaging in colossal fraud and receiving stolen property;
(b) the incident occurring on 22 September 2018, which I have already summarised;
(c) the attempt by the appellant, on 9 October 2018, to prevent the respondents from attending the Property, by making an application for a PSIO against Mr Murch. I note that this attempt was hampered by Senior Constable Hammond’s successful application to have “attending the Property” removed from the list of prohibited conditions contained in the PSIO;
(d) on 29 October 2018, the appellant had dishonestly notified ASIC and had appointed himself and his wife as controllers of R G Murch Nominees Pty Ltd;
(e) on 12 December 2018, the appellant’s wife attended the Property without authorisation, until she was requested to leave by Victoria Police;
(f) on 14 December 2018, an associate of the appellant, Wirihana Tatana, rammed the motor vehicle owned by the second respondent (Mr Murch) in an effort to scare them off the Property. Further, the appellant’s wife and sister barricaded themselves in a cabin located on the Property and refused to leave, necessitating their forcible removal by Victoria Police;
(g) an associate of the appellant, David Tatana, attended the Property on 20 February 2019 without permission, constituting a breach of the respondents’ PSIOs;
(h) The appellant lodged a caveat over the Property on 19 March 2019, recording:
“‘Unpaid vendor under a contract of sale,’ and claimed an interest in the Property by virtue of being a ‘chargee’. Similarly, on 5 June 2019, the appellant’s associate, David Tatana, lodged a caveat over the Property recording a proprietary interest as a ‘leasehold estate’.”
(i) On 8 August 2019, David Tatana hired a fencing contractor to attend the Property without the permission of the respondents; and
(j) that the appellant had misused the legal system, illustrated by the filing of forty-two court proceedings against the respondents since October 2018 by him and his associates.
Litigation Restraint Order
45As a consequence of the extensive and vexatious litigation brought by the appellant, on 11 December 2020, the Supreme Court imposed the Extended Litigation Restraint Order.
The Criminal Proceedings
46The criminal charges were heard before Judge Trapnell at the County Court from 15 February 2022 to 23 February 2022 (“Criminal Proceedings”).
47On 23 February 2022, the appellant received a verdict of not guilty and was acquitted of the charges.
Application by the Appellant to the Magistrates’ Court seeking revocation of the two PSIOs
48Following finalisation of the Criminal Proceedings on 22 December 2022, the appellant lodged the two applications with the Broadmeadows Magistrates’ Court, seeking revocation of the two PSIOs made by Judge Coish, on the grounds he had been found not guilty of the related criminal charges. The appellant proffered a somewhat syllogistic argument that, given the criminal charges emanated from the same set of circumstances that provoked the PSIOs, and considering he was acquitted of the criminal charges, the PSIOs should, accordingly, be revoked.
49On 11 January 2023, the appellant’s application progressed to an ex parte hearing before Magistrate Stuthridge at the Broadmeadows Magistrates’ Court. The learned magistrate, upon noting the Extended Litigation Restraint Order, adjourned the matter to 23 January 2023 and ordered the respondents and Victoria Police be served, and provided with an opportunity to be heard on the issue of whether the appellant was restricted in his application as a restrained litigant.
Magistrate Stuthridge’s decision on 23 January 2023
50At the resumed hearing on 23 January 2023, the appellant submitted that, on 22 September 2018, the respondents had unlawfully trespassed onto the Property and he had lawfully removed them. He relied on the jury direction Judge Trapnell delivered to the jury during the trial in the related Criminal Proceedings, that the respondents were to be considered to be trespassers in respect of the incident occurring on 22 September 2018, for the sake of the jury’s verdict.
51The appellant also reiterated his contention that, by reason of his acquittal of the criminal charges, which arose from the same set of circumstances that gave rise to the PSIOs, the PSIOs should likewise be revoked.
52Ms Jess Wilkinson, representing the respondents, accepted the appellant’s submission that he had been acquitted of the related criminal charges. However, she stressed the lower standard of proof required to impose an intervention order, being “on the balance of probabilities”, as opposed to the criminal standard to establish a criminal conviction of “beyond reasonable doubt”. She also submitted evidence in criminal proceedings, even if such criminal proceedings did not result in a criminal conviction, could nevertheless support the granting of an intervention order. Various additional charges had been brought against the appellant concerning his conduct towards the respondents, but they had ultimately been withdrawn. Disturbingly, the conduct included an email sent by the appellant to the respondents’ solicitors, in which the appellant cited the undisclosed address of Ms Kissel.
53Ms Wilkinson further submitted the appellant was restricted in his application by the Extended Litigation Restraint Order. Further, even if he could clear that hurdle, he could not establish there had been a change of circumstances capable of justifying a revocation application in any case.[3]
[3] Section 86 of the Family Violence Protection Act 2008
54Ms Wilkinson submitted the appellant possessed no lawful reason to attend the Property, no lawful reason to contact or communicate with the respondents, and continued to cause them alarm.
55Ms Ferrari, acting for Victoria Police, endorsed the submissions of Ms Wilkinson.
56After hearing the submissions of the parties, the learned magistrate refused the appellant’s application and awarded costs for the respondents, fixed at $1,100 for each application.
57The grounds of refusal were:
(a) a significant number of court proceedings had already been heard between the parties and it was necessary for the parties to achieve some sense of finality;
(b) despite being acquitted of the criminal charges, which founded the making of the original PSIOs, the grounds supporting the original applications had been overtaken by the factual matrix that formed the basis of Judge Coish’s decision on 11 June 2020;
(c) irrespective of the presence of additional instances of behaviour and conduct perpetrated by the appellant since the making of the original PSIOs, the appellant’s argument that the PSIOs must be struck out due to the appellant’s acquittal of the related criminal charges, must fail. The burden of proof in determining criminal conduct is based on a higher standard of proof. The lower standard of proof relied upon for establishing PSIOs was satisfied and had not been undone merely because of the acquittal of related criminal charges.
58Ultimately, the learned magistrate identified no justification to reduce the safety afforded to the respondents by the PSIOs and considered it appropriate to order they remain for an indefinite period.
Evidence before the County Court
59On 7 June 2023, the parties tendered the following evidence:
(a) The appellant tendered the following materials:
(i)audio recordings from Broadmeadows Magistrates’ Court, dated 11 January 2023, constituting two recordings;
(ii)audio recordings from Broadmeadows Magistrates’ Court, dated 23 January 2023, constituting two recordings;
(iii)affidavit of the appellant, dated 11 May 2023, and exhibits thereto;
(iv)Exhibit List for County Court matters AP-23-0175 and AP-23-0176;
(v)Submissions of the Appellant, dated 26 March 2023; and
(vi)Reply Submissions of the Appellant, dated 29 May 2023.
(b) Victoria Police, on behalf of the first respondent, tendered the following materials:
(i)Victoria Police Submissions, dated 26 May 2023;
(ii)Extended Litigation Restraint Order;
(c) the second respondents tendered the following materials:
(i)Submissions on Behalf of the Protected Persons, dated 6 April 2023; and
(ii)Submissions on Behalf of the Protected Persons, dated 26 May 2023.
Submissions
Submissions on behalf of the Appellant
60On 7 June 2023, the appellant submitted he was aware that, by virtue of the Extended Litigation Restraint Order having been imposed on him by the Supreme Court, the first step of the appeal process at the Magistrates’ Court was to satisfy s52 of the Act. He submitted that he had satisfied the requirements of the Act and the learned magistrate had granted him leave to proceed as a restrained litigant. He relied upon two grounds to substantiate his submission. First, that the Orders of the learned magistrate, made on 11 January 2023, were marked “leave to proceed is granted”. Second, the learned magistrate stated:
“‘I will stop you there Mr Annesley, what I will do is grant you leave to proceed, and you must file with the court all your submissions you rely on before the next hearing’ … .”
61The appellant further submitted that, having satisfied s52 of the legislation, based on the evidence, his application for revocation of the two PSIOs should have been granted. The learned magistrate’s refusal to grant his revocation application constituted a discretionary error and demonstrated a failure to consider Judge Trapnell’s direction to the jury in the related Criminal Proceedings.
Submissions on behalf of the Respondents
62In the respondents’ submissions, dated 6 April 2023, it was put that, because the appellant had been declared a restrained litigant and had failed to satisfy the Act, in order to proceed as a restrained litigant upon the appeals, any consideration of the appellant’s revocation application at the Magistrates’ Court was without jurisdiction and must be deemed to be of no effect.
63At the hearing, Mr Smallwood submitted:
(a) the application for revocation of the PSIOs was required to be made to the Magistrates’ Court, notwithstanding the application related to orders made by Judge Coish in the County Court ꟷ this had been done;
(b) the Magistrates’ Court did not grant leave to the appellant to commence a proceeding under the PSIO Act and did not grant leave to revoke the indefinite orders made by Judge Coish;
(c) the appellant failed to file an application for leave to commence a proceeding before this Court pursuant to the Act prior to 4 May 2023 – at which time there was some discussion about the appellant seeking an oral application;
(d) the Notice of Appeal filed in the County Court on 21 February 2023 commenced a proceeding in contravention of the Act[4] and the proceeding is, therefore, of no effect;
(e) even if the appellant were to be granted leave to proceed on the appeal, because more than thirty days had elapsed from the time the Magistrates’ Court Orders were made on 23 January 2023, to the time the application for leave was, at the earliest, first made on 4 May 2023, and because there is no power to extend time to commence an appeal in the County Court, it would be futile for the Court to consider the substance of the Application for Leave pursuant to the Act.
[4] Section 25 of the Act
Submissions on behalf of Victoria Police
64Ms Mathilda Minifie, who appeared on behalf of the Victoria Police, submitted that the appellant’s application under s52 of the Act for leave to proceed as a restrained litigant, should not be entertained. This was because, pursuant to s25 of the Act, on the making of an extended litigation restraint order, a proceeding that is commenced in contravention of an extended litigation restraint order, is of no effect.
65Both the revocation application to the Magistrates’ Court and the appeal to the County Court were commenced in contravention of the Extended Litigation Restraint Order. Leave to proceed had not been granted under s52 of the Act when they were filed. Consequently, neither proceeding was of any effect and was incapable of being determined by the County Court.
Legal Principles
Vexatious Proceedings Act
66Section 3 of the Act defines “proceeding” as:
“‘proceeding’ means any matter in an Australian court or tribunal, whether civil or criminal, including—
…
(c) any appeal, review or other challenge, including an application for judicial review or an application for leave to appeal.”
67Section 25 of the Act provides:
“Effect of extended litigation restraint order on proceeding
On the making of an extended litigation restraint order, subject to the terms of the order—
(a) a proceeding to which the order relates is stayed; and
(b) a proceeding that is commenced in contravention of the order is of no effect.”
68Section 52 of the Act provides:
“Application for leave to commence or continue proceeding
(1)Subject to subsection (2), a person who is subject to an extended litigation restraint order may apply to a Victorian court or tribunal for leave to commence or continue a proceeding—
(a)against a person or other entity protected by the order; or
(b)in respect of a matter described in the order.
(2) A person who is subject to an extended litigation restraint order that relates to intervention order legislation may apply to the Magistrates' Court or the Children's Court for leave to commence or continue a proceeding—
(a) against a person protected by the order or his or her child; or
(b) in respect of a matter described in the order.
(3)Subject to subsection (4), an application under subsection (1) or (2) must be made to the Victorian court or tribunal that made the extended litigation restraint order.
(4) If the extended litigation restraint order was made by the Supreme Court and the order does not provide otherwise, an application under subsection (1) must be made to the Victorian court or tribunal that would hear the proceeding to which the application for leave relates.
(5) Subsection (1) applies despite anything to the contrary in the extended litigation restraint order.”
69Section 53 of the Act provides:
“Court or VCAT may grant leave to commence or continue proceedings
On an application under section 52, a Victorian court or tribunal may grant a person who is subject to an extended litigation restraint order leave to commence or continue a proceeding against a person or other entity protected by the order, a child of a person protected by the order, or in respect of a matter described in the order, if the Victorian court or tribunal is satisfied that—
(a) the proceeding is not a vexatious proceeding; and
(b) there are reasonable grounds for the proceeding.”
70Section 56 of the Act provides:
“Person must disclose certain matters
(1) A person subject to a litigation restraint order who makes an application for leave to proceed must disclose the following details to the Victorian court or tribunal in which the application is made—
(a) details of each application for leave to proceed made by the person;
(b) details of each application for leave to commence or continue a proceeding made by the person under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;
(c) details of each interlocutory application made or proceeding commenced or conducted by the person—
(a)that is a vexatious application or a vexatious proceeding; or
(b)which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;
(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);
(e) all other facts material to the application, whether in support of or adverse to the application, that are known to the person.
(2) A disclosure under subsection (1) must be made by affidavit unless the rules of the court or rules of the tribunal otherwise provide or the Victorian court or tribunal otherwise orders.”
Is the appellant a restrained litigant in this proceeding?
71The Extended Litigation Restraint Order clearly applies to the appellant. It applied in the Magistrates’ Court proceeding and it applies to this proceeding. It restrains the appellant from commencing any proceeding against the respondents, or involving the Property, for a period of ten years.
72Justice Forbes’ reasons for imposing the order were as follows:[5]
“I am satisfied that the various PSIO applications made in the Magistrates’ Court by Paul Annesley were vexatious. There were five. Within those five proceedings there were numerous applications for variations or re-hearings. All were made ex parte and on most occasions Paul Annesley did not then attend for a contested hearing. Despite this appeals were lodged against all disputed outcomes. They were, as Judge Coish found, applications that misused the legal system and were vexatious, frivolous and in bad faith. That alone would be sufficient to satisfy me that s 17(1) has been met.
I am fortified in this by the fact that in Supreme Court proceedings commenced by Murch Nominees in response to the ASIC filing by Annesley Investments Pty Ltd, that Paul Annesley conducted his and his company’s defence of those proceedings in a manner that prolonged and delayed matters without any reasonable basis.
In the same way when filing for urgent injunctive relief in December 2018, Paul Annesley did not press for urgency at court on the first return and then failed to meaningfully participate in the litigation he had commenced. The proceeding was struck out with the observation that it had been continued by conduct causing loss of time to the Court and to Murch. Each meets the definition of a vexatious proceeding.
Paul Annesley’s application for a re-hearing, as an alleged representative of Murch Nominees in the VCAT proceeding commenced by David Tatana and struck out previously. The application was subsequently struck out despite production of a purported tenancy agreement between David Tatana and Paul Annesley. The application was made without reasonable grounds and for a collateral purpose.
Paul Annesley submitted I should refuse this application as no valid Warrant of Possession was ever granted to ANZ bank. This view mistakenly believes that in this application I can and should look at the merits of the ANZ possession. That matter was dealt with by Marks J. That is not the contest before me.”
[5] Murch & Ors v Annesley & Ors [2020] VSC 837 at paragraph [78]
73The appellant applied to the Court of Appeal for leave to appeal Forbes J’s decision. On 31 March 2021, Beach, Emerton and Kennedy JJA denied the appellant’s application, summarising that he “would enjoy no prospect of success”.[6] Costs were awarded to the respondents.
[6] Murch & Ors v Annesley & Ors (ibid) at paragraph [28]
74As a restrained litigant, the appellant is subject to the Act.[7] The appellant’s application for revocation of a PSIO at the Magistrates’ Court was clearly a proceeding to which the Act had application.[8] The proceeding before this Court is also one to which the Act has application.
[7] Section 17(1) of the Act
[8] Section 3 of the Act
Is obtaining leave to proceed under the Act compulsory?
75Section 56 of the Act clearly outlines the process restrained litigants must follow to commence proceedings against protected persons or land referred to in an extended litigation restraint order. Before commencing the proceeding, which includes an appeal, it is incumbent upon the restrained litigant to seek leave to proceed as a restrained litigant. They must also satisfy the disclosure requirements set out in s56 of the Act in order to validate their application.
Was leave granted per s52 of the Act in the Magistrates’ Court?
76The appellant’s argument that the learned magistrate granted him leave to proceed as a restrained litigant under s52 of the Act is incorrect.
77First, the Orders dated 11 January 2023 and 23 January 2023, do not grant this leave. The Orders made on 11 January 2023 stipulate that the affected family members and Victoria Police are to be served with notices of the appellant’s application to proceed as a restrained litigant and adjourn the matter to 23 January 2023. The Order contains the words, “LEAVE TO PROCEED (FV/PS)”, but those words are not an order. Whatever meaning these words derive, they are not a reflection of a decision of the Magistrates’ Court to grant leave to the appellant to proceed as a restrained litigant.
78Second, nothing on the recording of 11 January 2023 supports the contention that the learned magistrate verbally approved the appellant’s application to proceed as a restrained litigant to the hearing of the revocation application. In fact, quite to the contrary. In the recording, which was played in court at this hearing, the learned magistrate makes plain her concern about the existence of the appellant’s Extended Litigation Restraint Order, noting:
“It says that basically that your (sic) restrained from commencing proceeding including any appeal for a period of 10 years from the date of this order in respect of the land in those three titles.
…
Unless the leave of the Supreme Court or a Victorian court or tribunal in which the proceedings would be commenced, is first obtained. I haven’t heard any argument from anybody … I don’t know all the details about how this vexatious litigation order … came about … .”[9]
[9] Exhibit “A”: Broadmeadows Magistrates’ Court hearing, 11 January 2023, T3, L29 ꟷ T4, L29
79The learned magistrate, at the close of proceedings on 11 January 2023, directed:
“… All right, otherwise you’re off to 23 January. I’ll get the registry to serve everybody. We’ll get the transcripts attached to the files and then have a read of it.”[10]
[10] (Ibid), T17, L17-20
80Having also listened to the recording of 23 January 2023, I am satisfied that there was nothing said on that occasion either to support the appellant’s submission the learned magistrate granted him leave to proceed as a restrained litigant.
81On 23 January 2023, after hearing submissions from the parties, the learned magistrate ruled:
“… Strictly speaking on the leave application, it is unusual to notify the other parties. They are often done on an ex parte basis. But because I was aware of the vexatious litigation order in relation to the parties, I thought it was wise that they be given the opportunity to respond before I make a decision in relation to this matter.
Originally, the personal safety intervention order application was made by Victoria Police for both Robyn Kissel and Mr Robert Murch. … That was appealed to the County Court and was a hearing de novo in the County Court before Judge Coish. I have had the benefit of reading the decision in relation to Judge Coish.
…
In some respects, the original application b[r]ought by Victoria Police was overtaken in terms of the factual matrix that formed the basis for the personal safety intervention orders made by Judge Coish, and it is clear in Judge Coish's decision, there was a whole range of other behaviours and conducts relied on in forming the decision to grant the personal safety intervention orders for (indistinct). … .
… Mr Annesley has now brought an application for leave to revisit the issue of the making of the personal safety intervention orders. It is noteworthy that the test in this court is on the balance of probabilities, not beyond reasonable doubt, so a different test applies in relation to the facts underpinning the granting of the personal safety intervention orders.
Even taking that matter into – weighing that matter in favour of Mr Annesley, I am still not prepared to grant leave to revisit the issue of the personal safety intervention orders. As I have said, the factual matrix that Judge Coish used to form the decision in relation to both applications was much broader than simply the original allegations made in the police applications. Furthermore, I am concerned that the proceedings have some finality between the parties. I think that is a very important matter in relation to these proceedings between these parties.
Further, I have also considered whether or not a personal safety intervention order is necessary in the future. It seems to me that there is no apparent reason to change the circumstance of Ms Kissel and Mr Murch being protected by the personal safety intervention order. I can see no reasons why I should reduce the safety that they currently have the benefit of by virtue of the County Court's decision to grant an indefinite personal safety intervention order. In those circumstances, I propose to refuse the application for leave on both files. … .”[11]
[11]Broadmeadows Magistrates’ Court hearing, 23 January 2023 at T13, L2 ꟷ T15, L11
82It was submitted by Ms Minifie, in relation to the Magistrates’ Court revocation application, that:
“… It appears from the transcript of that proceeding … that the only applications that HH determined were the applications for leave to revoke under s 86(1) of the PSIO Act.”
83I am not entirely satisfied that is the case.
84Under s53 of the Act, her Honour was dutybound to determine whether the appellant’s revocation application was based upon reasonable grounds and did not constitute vexatious litigation. The judicial assessment contained in s53 of the Act, is a very similar assessment to the assessment contained under s 86(1) of the PSIO Act. The learned magistrate’s reasons for refusing the appellant’s application for leave under s52 of the Act might reasonably be assumed to significantly overlap with those used to justify a refusal of the appellant’s request for revocation application. In any case, whether or not her Honour’s reasons were directed to s53 of the Act or s86(1) of the PSIO Act, it is abundantly clear the learned magistrate did not grant leave to the appellant, on either 11 January 2023 or 23 January 2023, to proceed as a restrained litigant, a further reason being the appellant’s failure to disclose the relevant materials, which I will discuss later.
85If I am wrong about that, and the learned magistrate performed an assessment pursuant to s86 of the PSIO Act, her Honour’s assessment is, respectfully, of no effect. As previously identified, s52 of the Act requires a restrained litigant to seek leave before being permitted to proceed. Section 25 of the Act invalidates any proceeding that is commenced in contravention of that requirement. Section 56 specifies the materials that must be disclosed as part of such an application. Specifically, s56 provides the appellant was obligated to disclose:
“…
(a)details of each application for leave to proceed made by the person;
…
(b)details of each interlocutory application made or proceeding commenced or conducted by the person—
(a) that is a vexatious application or a vexatious proceeding; or
(b)which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;
(d)an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);
(e)all other facts material to the application, whether in support of or adverse to the application, that are known to the person.”
86Under section 56(2) of the Act, such disclosure is to be made by affidavit unless the Court otherwise orders. However, if the Court otherwise orders, oral disclosure can only be permitted if there are exceptional circumstances and it is appropriate to conduct an oral hearing, having regard to the interests of justice.[12] The appellant failed to file an affidavit with the Magistrates’ Court disclosing these materials and failed to mention to the Magistrates’ Court his obligation to provide them. Therefore, the appellant failed to disclose the relevant materials either in written form or orally.
[12] Section 63 of the Act
87I find that, because the details required by s56 were not provided to the Magistrates’ Court in any form (whether by affidavit or oral application), any application for leave to proceed pursuant to s52 was not valid. Consequently any assessment of s86(1) of the PSIO Act made by Magistrate Stuthridge is of no effect.
What is the effect of leave not being granted?
88The result of this conclusion is that there exists no proceeding from which an appeal to the County Court can be founded, and no jurisdiction to be enlivened upon appeal to the County Court pursuant to which the County Court could consider the appeal.
89If I am wrong, and the County Court does have jurisdiction to hear the appeal, based on the factual matrix underpinning the history between the parties, as elucidated by Judge Coish, I find the appellant’s application to proceed as a restrained litigant vexatious and unreasonable.[13] I respectfully apply and adopt the reasons elucidated by Forbes J, Judge Coish and Magistrate Stuthridge in forming my decision.
[13] Thereby failing s53 of the Act
90I further accept the submission that, if an appeal were to be commenced, now, or even had it been commenced on 4 May 2023, such an appeal would have been filed more than thirty days after the Magistrates’ Court decision on 23 January 2023. Because there is no power for this Court to extend time to file an appeal,[14] any right the appellant may have had to commence an appeal against the learned magistrate’s Orders made on 23 January 2023, has expired.
[14] Austin v Dobbs [2019] VSC 355
Conclusion
91I find that the appeal is a proceeding that was commenced in contravention of the Extended Litigation Restraint Order. As such, pursuant to s25(b) of the Act, the proceeding is of no effect.
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