Attorney General for the State of New South Wales v Mahmoud

[2015] NSWSC 899

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Attorney General for the State of New South Wales v Mahmoud [2015] NSWSC 899

Hearing dates:

9 March 2015

Date of orders:

24 September 2015

Decision date:

24 September 2015

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, Mr Tosson Mahmoud is prohibited from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act;

(2) Pursuant to s 8(7)(a) of the Vexatious Proceedings Act, any legal proceedings instituted by Mr Tosson Mahmoud in any court or tribunal in New South Wales before the date of this order are hereby stayed. 

Catchwords:

PROCEDURE – application for vexatious proceedings order pursuant to ss 8(7)(a) and (b) of the Vexatious Proceedings Act - whether proceedings the defendant has frequently instituted and conducted are "vexatious" – numerous proceedings commenced in NSW – repeated re-litigation of issues determined against the defendant

Legislation Cited:

Evidence Act 1995
Strata Schemes Management Act 1996
Supreme Court Act 1970
Vexatious Proceedings Act 2008

Cases Cited:

Attorney General (NSW) v Altaranesi [2013] NSWSC 63
Attorney General (NSW) v Bar-Mordecai [2005] NSWSC 142
Attorney General (NSW) v Crocker [2010] NSWSC 942
Attorney General (NSW) v Ebert [2002] 2 All ER 789
Attorney General (NSW) v Gargan [2010] NSWSC 1192
Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 392
Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 970
Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 1378
Attorney General in and for the State of New South Wales v Mahmoud [2015] NSWSC 153
Attorney General (NSW) v Viavattene [2014] NSWSC 327
Attorney General (NSW) v Wilson [2010] NSWSC 1008
Brogden v Attorney General [2001] NZAR 805
Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403
Gargan v Kippin Investments Pty Ltd [2009] FCA 398
Mahmoud v State of New South Wales [2013] NSWSC 1785
Muir v Council of Trinity Grammar School [2005] 1 NSWSC 555
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pascoe v Liprini [2011] NSWSC 1484
Siteberg Pty Ltd v Maples [2010] NSWSC 1344
Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383

Category:

Principal judgment

Parties:

Attorney General for the State of New South Wales (Plaintiff)
Tosson Mahmoud (Defendant)

Representation:

Counsel:
J Emmett (Plaintiff)
In person (Defendant)

Solicitors:
Crown Solicitor’s Office (Plaintiff)
In person (Defendant)

File Number(s):

2013/266710

Publication restriction:

None

Judgment

1. HIS HONOUR: By summons dated 3 September 2013, the Attorney General for the State of New South Wales commenced proceedings against the defendant, Mr Mahmoud, in which orders are sought, pursuant to ss 8(7)(a) and (b) of the Vexatious Proceedings Act 2008 (“the Act”), to declare the defendant a vexatious litigant.

2. The effect of such an order would stay all or part of any proceedings in New South Wales presently instituted by the defendant and would prohibit the defendant, if he were so desirous, from instituting further proceedings in New South Wales, unless granted leave by an authorised court: s 13(6) of the Act.

3. In support of the application, the plaintiff relies on two affidavits of Daniela Hartman sworn 2 September 2013 and 16 October 2013, which exhibited 8 volumes of material (Exhibits DH1–DH8). The material contains correspondence, submissions, pleadings, transcript and earlier substantive judgments. The defendant objected to all of the material being tendered on the basis that he has not been given a sufficient opportunity of time to examine the evidence. Leaving aside issues with the nature, content and form of the objection, the defendant has been aware for at least 16 months that the plaintiff seeks to rely upon the affidavit material in these substantive proceedings.

4. The defendant also objected to the earlier interlocutory judgments of this Court in these proceedings, namely the judgments of Hoeben CJ at CL, Fullerton, Schmidt and Wilson JJ, which were tendered separately by the plaintiff, and are admissible pursuant to the terms of s 60 of the Evidence Act 1995 and s 4 of the Act. I am also cognisant of the operation and effect of s 91 of the Evidence Act.

5. While the Court may take into account the result of the earlier proceedings, and, if appropriate, the judicial pronouncements, the Court must still come to its own conclusion as to whether the defendant’s pattern of behaviour in litigation, and the merit or reasonable grounds of proceedings instituted or conducted by the defendant, justifies a vexatious proceedings order: Attorney General (NSW) v Bar-Mordecai [2005] NSWSC 142; Attorney General (NSW) v Crocker [2010] NSWSC 942; Attorney General (NSW) v Gargan [2010] NSWSC 1192; Pascoe v Liprini [2011] NSWSC 1484. In my view, all of the material is relevant to the extent that it provides background and context in the proceedings previously instituted or conducted by the defendant.

6. The defendant is a self-described founder of the International Institute of Genderism and is apparently well known in political circles in Canberra for his activism. The defendant appeared before me representing his own interests. I do not consider that the defendant was substantially impeded by his lack of representation and I consider the defendant to be articulate with an understanding of his rights under the law.

7. Understandably, the defendant denies that he is a vexatious litigant and alternatively submits:

“… I am a well known community leader of high calibre, the number one and the most successful political activist in Australia, the head of the conservative movement in Australia and abroad and the first social reformer on record in the history of the Court…The mere attempt to defame me, distort my image, libel me and to put me on record as an idiot, an amateur litigant and a trivial person to be ridiculed is not in the Australia of Australia at all, is brutal and very severe ingratitude and a denial of all the extraordinary and free services I rendered to this Court for a period of over 21 years now.”

8. At the commencement of these proceedings, the defendant applied in Court for leave to file a notice of motion for summary dismissal on the basis of public prejudice, criminal or illegal behaviour and bias.

9. The defendant had not filed any material in support of his motion or in these proceedings in general, despite having had notice to do so since October 2014, because of alleged sleep deprivation, ill-health and because he considered the previous orders made on 9 October 2014 were illegal and for that reason unenforceable. The defendant has made no attempt to comply with those orders and has merely chosen to ignore them to suit his convenience.

10. Furthermore, the defendant submits, by way of explanation for his failure to comply with the rules of the court or prepare his defence, that he has been “too busy”. His purported time constraints have resulted from helping the Australian Government procure the release of Peter Greste from imprisonment in Egypt.

11. It appears the defendant ignored the earlier orders on the misguided belief that the proceedings against him would be dismissed. In support of this submission, the defendant stated:

“Now I have a document explaining all of that, 22 pages, the whole story about how it happened, and why President el-Sisi did this favour to me. Everything explained but no grateful, so they have got the white, western, Christian, Anglo-Saxon free out of gaol and I am still under the brutal claws of Anglo Saxon for ten years.” (Transcript page 26)

12. As held by Deane J, then a member of a Full Court of the Federal Court of Australia, the Court must ensure a party is given a reasonable opportunity to prepare and to present the case that it desires. However, it is not an obligation or duty of the court to ensure that a party uses the opportunity granted to their best advantage: Sullivan v Department of Transport (1978) 20 ALR 323; 1 ALD 383 at 342-343. Furthermore, s 8(3) of the Act provides that a court cannot declare a litigant vexatious “without hearing the person or giving the person an opportunity to be heard”.

13. I refused leave to file the motion on the basis that the defendant did not adduce any evidence attesting to his onerous workload. Nor did he provide a reasonable explanation to enable the Court to grant leave to file the motion otherwise than in accordance with the rules of the Court. I reiterate that the defendant has been aware of the hearing date of these proceedings since it was set down at least five months ago, which is, at the very least, more than sufficient time to prepare his case.

14. The defendant has instituted and conducted numerous proceedings over the past 15 years in the Local Court, District Court, Federal Court, Federal Magistrates Court, Supreme Court, Court of Appeal and High Court. The defendant has been successful in two of these proceedings, in one of which he settled for a substantial sum of money against the State of New South Wales. In the other proceeding, the defendant was only partially successful. In those latter proceedings, the District Court found costs in favour of the defendant and expressed the view that the previous proceedings conducted in the Local Court had not been frivolous or vexatious.

15. I note that it is not the Court’s function to punish a litigant for their past litigious misdeeds. However, the lack of reasonable grounds for, and the incidence of, previous unsuccessful litigation are important factors to bear in mind: Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, cited with approval in Attorney General v Gargan [2010] NSWSC 1192 at [8].

16. The plaintiff does not contend that all proceedings instituted or conducted by the defendant qualify as vexatious. Rather, when the proceedings are considered as a whole, within the meaning of the Act, they demonstrate that the defendant has engaged in the frequent institution or conduct of vexatious proceedings.

17. At the conclusion of the oral proceedings, I granted the defendant further time to consider the submissions of the plaintiff and I granted leave for the defendant to file written submissions of no more than 25 pages by 4pm 20 March 2015. I also granted leave for the plaintiff to file written submissions in reply within seven days of receipt of the defendant’s submissions. Accordingly, the Court determined the application in part on the papers.

Relevant Legislation and General Principles

18. As articulated by Perram J in Gargan v Kippin Investments Pty Ltd [2009] FCA 398, the distinction between a persistent, determined and over-zealous litigant on the one hand, and a vexatious litigant on the other, is difficult, in part because the line cannot always be sharply drawn.

19. An order to deprive or restrict a litigant’s right of access to the law, that is, their individual and ordinary right to a recourse or remedy in the courts and tribunals in New South Wales, is extremely serious and the decision is not made lightly: Attorney General (NSW) v Wilson [2010] NSWSC 1008; Gargan v Kippin Investments Pty Ltd.

20. Notwithstanding the effect on an individual’s right to enforce the law, the Court must also consider the substantial costs of litigation and the considerable time and burden borne by a party in frivolous and unnecessary suits. The waste of public expenditure, together with finite judicial resources, also weighs heavily in warranting such an order. In Attorney General (NSW) v Ebert [2002] 2 All ER 789, Brooke LJ and Harrison J highlight the importance of protecting and shielding the public, and the court itself, from baseless and perpetual litigation:

“[7] ... His vexatious proceedings had been very damaging to the public interest, because scarce and valuable judicial resources had been extravagantly wasted on barren and misconceived litigation, to the detriment of other litigants with real cases to try.”

21. I have had the benefit of observing the defendant for a day in court and note the defendant’s attitude, behaviour and conduct during the proceedings: see below [47]-[52]; Attorney General (NSW) v Altaranesi [2013] NSWSC 63. As Davies J in Attorney General v Wilson held at [16], the manner in which a litigant speaks or acts in the courtroom is a matter of relevance. The defendant’s oral and written submissions in support of a refusal of a vexatious proceedings order is also relevant.

22. The plaintiff relies, as earlier stated, on s 8 of the Vexatious Proceedings Act. That provision, relevantly, is in the following terms:

“s 8 Making of vexatious proceedings order

(1) When orders may be made

An authorised court may make an order under this section (a "vexatious proceedings order") in relation to a person if the court is satisfied that:

(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or

(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.

(2) For the purposes of subsection (1), an authorised may have regard to:

(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and

(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section).

(3) An authorised must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(4) Orders may be made on the court’s own motion or on application

An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons:

(a) the Attorney General,

(b) the Solicitor General,

(c) the appropriate registrar for the court,

(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings,

(e) a person who, in the opinion of the court, has a sufficient interest in the matter.

…

(7) Orders that may be made by Supreme Court

The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:

(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,

(b) an order prohibiting the person from instituting proceedings in New South Wales,

(c) any other order that the Court considers appropriate in relation to the person.”

23. The Court must be satisfied that a person has frequently instituted or conducted vexatious proceedings. The meaning of the term “frequent”, in the sense contemplated by the Act, is relative and must be viewed in the context of the litigation: see Attorney General (NSW) v Viavattene [2014] NSWSC 327; Attorney General (NSW) v Wilson; Attorney General (NSW) v Croker at [22]; Attorney General (NSW) v Gargan at [7]; Siteberg Pty Ltd v Maples [2010] NSWSC 1344 at [31]-[32].

24. In Siteberg Pty Ltd v Maples, the Court held that the number of proceedings instituted by a litigant does not necessarily need to be “large” in order for it to be considered “frequent”. Rather, the number of proceedings may be small if a litigant attempts to relitigate or reagitate an issue previously determined by the Court, especially if it contains extravagant or scandalous allegations that the litigant has no prospect of substantiating or justifying: Brogden v Attorney General [2001] NZAR 805; Attorney General (NSW) v Altaranesi [2013] NSWSC 63; Attorney General (NSW) v Wilson; Attorney General (NSW) v Gargan.

25. Furthermore, the Court may take into consideration the pattern of behaviour and conduct of the litigant, that is, whether the litigant is unwilling or unable to accept the finality of a decision; whether the litigant has exhausted all avenues of appellate review; and whether, consequently, a widening circle of parties are attacked or pursued into existing litigation by the litigant: Brogden v Attorney General.

26. The Court’s power to make an order under s 8 of the Act is discretionary. The purpose of the discretion is summarised in Attorney General (NSW) v Gargan, where Davies J remarked, citing Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, in the following terms:

“[8]

[3] Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.

…

[12] Finally, once it is concluded that the Court’s power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest — although not determine — a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant’s defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant’s forays into the courts have caused, pecuniary or otherwise.”

With respect, I adopt this summary.

27. A number of different persons can make an application to declare a person vexatious under the Act. In the defendant’s submissions, he repeatedly makes the claim that the plaintiff is a “ghost”, as the Attorney General, at the time of filing the Summons, no longer held that position. Section 8(4) of the Act plainly gives standing to the Attorney General, whoever holds that position at the relevant time, to institute an application for a vexatious proceedings order.

28. Section 6 of the Act defines “vexatious proceedings” to include:

“(a) proceedings that are an abuse of the process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c) proceedings instituted or pursued without reasonable ground, and

(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.”

29. The categories of “vexatious proceedings” described in s 6 of the Act are interwoven and not separate categories. Each is directly related to the primary consideration in s 6(a), that is, the proceedings must be assessed objectively to determine if the claims or actions instituted or conducted by a litigant have been an abuse of process of a court or tribunal.

30. However, s 6(b) and (d) are conceptually distinct. In s 6(b), the Court needs to be satisfied that the litigant had the requisite subjective intention, motive or state of mind to harass or annoy, to cause delay or detriment or for another wrongful purpose. On the other hand, s 6(d) is primarily concerned with the effect or consequence of the litigant’s conduct in proceedings, regardless of their subjective intention or motive.

31. In Attorney-General v Croker, Fullerton J described proceedings which constitute an abuse of process:

“[17] …

i. The pursuit of proceedings that have no prospect of success, or no real prospect of resulting in a remedy of any substance, but which involve unjustifiable expenses or use of judicial reasons;

ii. the pursuit of concurrent proceedings for substantially the same relief, or the pursuit of fresh proceedings after unremedied default in previous proceedings.”

32. Section 4 of the Act defines the term “proceedings” to include:

“(a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and

(b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and

(c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.”

33. The term “proceedings” under the Act has a broad meaning and comprises all originating proceedings in both civil and criminal jurisdiction before a court and tribunal, and includes any interlocutory applications or appeals: Attorney-General v Altaranesi. Furthermore, the Court may take into consideration all steps undertaken by a litigant in pursuing existing litigation: Attorney-General v Altaranesi.

34. The Court may also take into account a litigant’s own protestation as to their mental state. In Gargan v Kippin Investments Pty Ltd, Perram J stated at [9], “…frequently enough, the vexatious are betrayed out of their own mouths”.

35. This was a common aspect during the hearing, as the defendant included in his submissions many inappropriate remarks about race, gender and nationality. Although the defendant asserts that he has been discriminated against because of his beliefs and race (of itself, if true, a perfectly reasonable and proper submission), he later displayed disingenuousness and expressed prejudicial comments ranging from the inferiority of women to assigning ethnic labels to groups of people, such as “Anglo-Saxon”. For example, the defendant declared:

“DEFENDANT: … This is a problem; a man cannot be humiliated by a woman. She ordered me out.

HIS HONOUR: It’s not my experience, Mr Mahmoud, but that’s beside the point.” (Transcript page 37).

36. Even though these claims are offensive, they do shed light on several aspects of the defendant’s modus operandi, for example, his refusal or inability to come to terms with the finality of any unfavourable decision of this Court. By resisting the conclusiveness of a decision, the defendant has, in turn, launched collateral attacks on any person or institution by whom he believes he has been unfairly treated, in particular the Crown Solicitor’s Office. These grievances underpin his unsupported tales of corruption and collusion that he submits is inherent in the New South Wales government and judiciary. In my opinion, there is no evidence in these proceedings of any conduct by such persons or organisations that could be characterised in that way and I am entitled to consider the defendant’s allegations and the nature of them in determining whether an order is warranted or justified.

History of the Current Proceedings

37. It is necessary to set out the history of the interlocutory proceedings that are relied upon by the plaintiff in the substantive proceedings before the Court. The interlocutory proceedings are considered as separate proceedings within the meaning of the Act.

38. On 1 April 2014, the defendant made an application before Fullerton J, sitting as duty judge, in which he sought a temporary stay of the proceedings until the proceedings before Harrison J had been determined. The earlier proceedings concerned the defendant’s application to set aside consent orders made on 17 December 2012: Mahmoud v State of New South Wales [2013] NSWSC 1785.

39. The outstanding question in the earlier proceedings related to whether the defendant was entitled to interest on the judgment sum. Fullerton J held that the question raised had no impact or relevance in the current proceedings and, as a result, her Honour dismissed the application and ordered that the defendant pay the costs of the motion: see Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 392.

40. On 24 July 2014, the defendant made two further applications in this Court in which he sought a stay of the proceedings and to have the proceedings dismissed. The defendant argued that the Attorney General had no standing to commence vexatious proceedings and that he was incapable of defending the claim as he was suffering from ill-health. Hoeben CJ at CL dismissed both applications and ordered that the defendant pay the costs of the motion: see Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 970.

41. On 24 September 2014, an application was made by the defendant to set aside the case management orders issued by Registrar Kenna on 5 September 2014; to vacate the hearing date in March 2015 and adjourn the proceedings until 28 November 2015 for directions, in order to give the defendant time to examine the information held on his file at Government Information Public Access; to be granted an indemnity costs order for $53,021.80 for his costs and disbursements; and to be granted an order for security of those costs for $50,000.00.

42. The application was referred to Schmidt J, while sitting as duty judge. At the commencement of the hearing, the defendant made an application that Schmidt J disqualify herself on the basis of apprehended bias. The application was made on the following basis:

“[22] …The first, that as a female judge, I was a feminist with leftist leanings. The second, that any male judge to whom the matter might be referred, would not hold views of the kind that he suspected female judges such as I held. The third, that his personal circumstances were so notorious, that there was a real possibility that they could so influence any female judge against him, with the result that she might not bring an impartial and unprejudiced mind to the resolution of what lay between the parties.”

43. Schmidt J provided a short adjournment to give the defendant time to understand the principles of making such an application. After court resumed, the defendant made a further application on the basis of actual bias because, it seems, the Attorney General failed to give him a copy of the submissions and this failure constituted racism and a conflict of interest. The defendant also requested a further adjournment. Schmidt J dismissed all the applications before the Court: see Attorney General in and for the State of New South Wales v Mahmoud [2014] NSWSC 1378.

44. On 4 March 2015, a further application was made by the defendant before the sitting duty judge, Wilson J, in which he sought to vacate the hearing date of the substantive proceedings listed on 9 March 2015. Wilson J found that the defendant’s application was instituted “entirely without substance” at [29], Attorney General for the State of New South Wales v Mahmoud [2015] NSWSC 153.

45. Wilson J made the following further observations:

“[29] …In my view, there is nothing in the voluminous material which he has placed before the court which could in any way justify a vacation of the hearing date of 9 March 2015, and the consequential loss, not just to the parties — and they would not be insignificant to the Attorney General and perhaps even to Mr Mahmoud — but also to the court and to other litigants who are waiting to obtain a hearing date from the court for their matters. It seems to me that there is an overwhelming community interest in bringing these long-running proceedings to finality, so that the originating process filed on 3 September 2013 can be finally adjudicated by this court.

[30] I am conscious of those matters which have been raised by Mr Mahmoud and, having seen his conduct in the courtroom, I have no doubt that he firmly believes those things that he asserts, but there is no evidence to support his many and scandalous allegations. There is nothing that would warrant their acceptance.”

46. Wilson J dismissed the motion and ordered costs against the defendant in the proceedings.

Defendant’s Applications made on 9 March 2015

47. During the course of the proceedings, and without notice or supporting affidavit, the defendant made a number of applications.

48. First, the defendant submitted that the proceedings be heard in a closed court, due to the defendant’s embarrassment that a neighbour, identified by the defendant, was sitting in the courtroom. The neighbour allegedly was a party to, or the cause of, earlier litigation. The defendant suggested his presence was provocative and disclosed a malicious intention to damage his reputation by lying and misrepresenting the proceedings. Furthermore, the defendant submitted that the neighbour’s presence was, purportedly, evidence of collusion between the neighbour and the Attorney General’s Department.

49. A fundamental principle of the rule of law is that proceedings in court are, except for very good reasons, conducted in public so that the integrity of, public scrutiny of, and confidence in the court are maintained. Furthermore, proceedings are not conducted in private simply because of a party’s perceived embarrassment. I dismissed the application.

50. Secondly, the defendant applied that I disqualify myself on the grounds of a conflict of interest and bias. The application was based upon the fact that judges of this Court cannot determine a matter in which the Attorney General is a party because the Attorney General appoints judicial officers and the monetary provision for the function or operation of the court is controlled by, or under the instruction of, the Attorney General’s Department. Indeed, the defendant argued that, in fact, no judge of the Court could hear the matter. That application was also dismissed.

51. Thirdly, the defendant submitted that he had been denied procedural fairness because of the two earlier unfavourable preliminary rulings, which, the defendant suggests have obstructed the administration of justice and denied him the ability to adduce evidence or present a case. For reasons based upon the procedural history recited already, I dismissed the application.

52. Finally, the defendant applied for a trial by jury. Section 85(2) of the Supreme Court Act 1970 states that a court may order that the proceedings be tried with a jury if it is satisfied, in the interests of justice, that there is a substantial reason that would justify a departure from the usual method of proceedings: Muir v Council of Trinity Grammar School [2005] 1 NSWSC 555. No such justification has been provided and I am not so satisfied. Notwithstanding the foregoing, the defendant has also not complied with any of the administrative matters outlined in s 85(2)(a) of the Supreme Court Act to enliven this provision. In all of those circumstances, I dismissed the application.

The Defendant’s Litigation History

53. Before the Court can determine whether an order should be made, it is necessary to determine which proceedings, or sub-set of proceedings, are vexatious, and then as a result of such proceedings, whether those proceedings have been frequently instituted or conducted. A schedule of the various proceedings instituted or conducted by the defendant is Annexure A to these reasons.

54. As earlier stated, the plaintiff does not contend that all proceedings, or every sub-set of proceedings, instituted or conducted by the defendant, qualify as vexatious. Rather, the lengthy history of the defendant’s litigation, considered in its totality, demonstrates a recalcitrant and unyielding pattern of behaviour by the defendant in litigation.

55. In my view, there appears to be eight sources of angst relevant to the defendant, which form the foundation for much of his litigation.

Strata Plan proceedings No. 811

56. The action arose out of a dispute between the defendant and the Owners Corporation of the building in which the defendant lived. The defendant was elected and appointed as an executive member of the Owners Corporation at the Annual General Meeting in 1999. In 2000, the correspondence suggests that there was an irretrievable breakdown in the relationship between the defendant and other executive members.

57. On 31 March 2000, an Extraordinary General Meeting was convened and a special resolution passed, in which the defendant’s position on the Executive Committee of the Owners Corporation was revoked.

58. To put it neutrally, this action further antagonized the defendant. The animosity and dissidence between the executive members caused an application to be lodged with the Strata Schemes Board of the Consumer, Trader and Tenancy Tribunal (hereinafter, “the SSB”) seeking to appoint a temporary managing agent, namely Wolody Strata Management Pty Ltd, delegating all “the powers, authorities, duties and functions of the Owners Corporation and of the chairman, secretary and treasurers of the Owners Corporation for a period of not less than 12 months”: s 162 of the Strata Schemes Management Act 1996.

59. Thereafter, the Owners Corporation made a number of other applications to the SSB concerning the improper use of the defendant’s lot and common property, such as erecting offensive signage; intimidation of an executive member; inappropriate alterations to the defendant’s lot; and allegations that the defendant had independently (and without obtaining the requisite authority from the executive members to do so) appointed himself as chairman, treasurer and secretary of the Owners Corporation.

60. On 23 August 2001, the SSB made orders in favour of the Owners Corporation and found that the defendant had used his lot and common property for an improper purpose. On or about 21 September 2001, the defendant appealed the adjudicator’s decision and sought a stay of the orders in the Consumer, Trader and Tenancy Tribunal (hereinafter, “CTTT”) (SA 01/00251; SA 01/00333). On 27 June 2002, the defendant failed to appear at the hearing and the two matters were dismissed with costs. During 2003, the defendant and other executive members of the Owners Corporation applied for and sought interim orders to be made against one another.

61. The plaintiff does not rely upon the beginning of the litigation as a vexatious proceeding. However, in early 2003, the defendant began to institute proceedings in the name of, and purportedly acting for, the Owners Corporation against other executive members (SCS 03/44303; SCS 03/47909; SCS 03/54303; SCS 03/34554). In those proceedings, the defendant describes a Machiavellian plot consisting of corruption, lies and embezzlement and misappropriation of Strata Scheme funds.

62. On 5 September 2003, the defendant commenced proceedings in the Downing Centre Local Court on behalf of the Owners Corporation in respect of strata levies alleged to be owed by a lot owner (2003/9429). Magistrate Emmett dismissed the proceedings with costs on the basis that the defendant did not have the authority to commence proceedings on behalf of the Owners Corporation.

63. Consequently, the defendant appealed to this Court seeking orders that the District Court’s earlier orders be set aside (2003/13315). The defendant filed a summons on 20 February 2004, in the following terms:

“Those orders of Magistrate Emmett…are very shocking, extremely unjust and outside all the rules of law. Magistrate Emmett demonstrated her unimaginable hatred of me, her defiance of the law and her extreme racism. She never allowed me to say a word. She dared to state that I am not party of the dispute despite I am in possession of annex Z6 telling me to come to court and present my documents. She refused to take any document from me and treated me as a dog. She spoke over me and kept shutting up all the time and when I protested and made an application to her that I am requested her to disqualify herself from the case her response was very hostile and ordered the court’s sheriff to get me out of court….”

64. On 12 March 2004, the Registrar of the Supreme Court dismissed the summons and ordered that the defendant pay the costs of the proceedings.

65. Similarly, the defendant commenced proceedings against another lot owner on behalf of the Owners Corporation in the Parramatta Local Court (2003/4273). A default judgment was entered against the lot owner on 28 January 2004. The lot owner filed a motion seeking to set aside the judgment, which was set aside on 31 May 2004 by Magistrate Garbett and the defendant was ordered to pay costs. Again, on 28 June 2004, the defendant appealed the decision to this Court seeking to set aside the judgment of Magistrate Garbett (2004/11985). The Court held that the defendant had no authority to commence proceedings and dismissed the proceedings with costs.

AVO proceedings

66. On 18 July 2000, Stanley Wise, the strata agent of the building in which the defendant lived, commenced proceedings against the defendant seeking an interim AVO in the Burwood Local Court (204118/00/46). On 22 August 2000, the court revoked the interim AVO against the defendant and proceedings were adjourned until 12 December 2000. On 18 February 2002, the final AVO was made against the defendant, who was also ordered to pay costs. It is not suggested that the defendant’s conduct at this point in time was vexatious.

67. On 26 July 2000, the defendant commenced proceedings seeking an interim AVO against two lot owners, Judith and Benjamin Wise, in the Burwood Local Court (231642/00/46; 228099/00/46). Both AVO’s were dismissed and the defendant ordered to pay costs.

68. On 24 January 2001, another lot owner, Elizabeth Bodeker, commenced proceedings seeking an interim AVO against the defendant (13338/01/46). On 2 February 2001, she applied for, and was granted, an interim AVO against the defendant by Magistrate Brennan. However, on 13 February 2001, the interim AVO was revoked in full on the basis that the defendant had not been appropriately notified and served.

69. On 15 February 2001, the defendant commenced proceedings seeking an interim AVO against Elizabeth Bodeker (22923/01/46). On 23 February 2001, the matter was set down for hearing and Magistrate Murphy informed the defendant that the lot owner must be aware of the application before orders were made. The defendant insisted that the Magistrate issue orders irrespective of the Elizabeth Bodeker’s absence. The Local Court dismissed the application.

70. On or about 4 April 2001, the defendant wrote a letter to the Chief Magistrate of NSW in which he complained that Magistrate Brennan had been biased and racist. An excerpt of the defendant’s letter is as follows:

“…He accepted from Mrs. E. Bodeker, who is of the same race as he is the complaint and granted her the order in my absence…She has only made a verbal allegation to Judge Brennan who is just all too willing to do anything against me as long as someone of his race desires…the Judiciary and the Police are ruled by deep and strong prejudice and racism against our race.”

Local Court proceedings: Strata Plan proceedings No. 811

71. As a result of the earlier proceedings, Strata Plan proceedings No. 811, the Owners Corporation commenced proceedings against the defendant for unpaid fees, interest and costs in the North Sydney Local Court on 4 July 2002. On 1 December 2003, the defendant requested, in writing, that the Assessor be disqualified on the basis of racism and feminism. The Local Court entered judgment in favour of the Owners Corporation for $2,422.76, plus costs.

72. On or about 29 December 2003, the defendant wrote another letter to the North Sydney Local Court, purportedly on behalf of the Owners Corporation, which stated that the matter had been resolved, all outstanding payments had been paid and the Owners Corporation wished to discontinue the proceedings. The Owners Corporation’s legal representative denied that this had occurred and consequently did not consent to a discontinuance of proceedings.

73. As a result, on 21 January 2004, the defendant wrote a letter to the Legal Services Commissioner, again purportedly on behalf of the Owners Corporation, and made a formal complaint with respect to the Owners Corporation legal representative’s conduct in the matter.

74. The defendant again, on 12 January 2004, 19 January 2004 and 3 February 2004, wrote a letter to the North Sydney Local Court stating that he represented the interests of the Owners Corporation.

71. On 24 May 2004, the Owners Corporation commenced further proceedings against the defendant for other unpaid fees, interest and costs. On 17 September 2004, the court granted judgment in favour of the Owners Corporation against the defendant for $13,977.70.

Assault proceedings

76. The defendant was employed as a temporary teacher at a primary school. On 22 May 2003, the defendant was charged with assaulting the principal of the school, after she had requested the defendant to leave the school grounds. On 30 May 2003, the defendant commenced collateral proceedings in which he claimed that he, in fact, had been assaulted by the principal of the school.

77. The matter was initially heard by Magistrate Schurr in the Campbelltown Local Court (90528/03/19). During the course of the assault proceedings, the defendant made an application that the Magistrate disqualify herself for apprehended bias on the basis that the Magistrate is a female judicial officer. The application was denied. The matter was adjourned so that the defendant could consider an appeal against the Magistrate’s disqualification ruling and the matter was set-down for hearing on 2 July 2004.

78. On 28 June 2014, the defendant appealed the decision of Magistrate Schurr to the Supreme Court of NSW, in which he sought two orders, namely that the charge of common assault be dismissed and that a costs order be made for $25,000 (2004/12180). In the defendant’s summons, he claimed that the Magistrate was biased and prejudiced against him. Adams J refused leave and dismissed the summons. Adams J referred to the grounds relied upon by the defendant and stated:

“…they are very general and do not give rise, on the face of it, to any reasonable apprehension that the Magistrate, whoever it might be, charged with hearing the case, is biased or prejudiced against him.”

79. On 2 July 2004, the day of the hearing, the defendant sought a stay of proceedings on the basis that all members of the judiciary, except one, are racist and oppressive (90528/03/19). Magistrate Mahony dismissed the application. Afterwards, the defendant made another application for the Magistrate to disqualify himself on the basis of the previous unfavourable ruling. This application was also dismissed. The defendant then declared that he did not wish to partake any further in the proceedings and left the courtroom. The hearing proceeded in the defendant’s absence. The defendant was found guilty of common assault. No orders were made as to costs due to the defendant’s financial situation. In determining the defendant’s sentence, the Magistrate observed the defendant’s behaviour, which has some relevance in the current proceedings:

“In determining sentence against you I do note you have a strong sense of grievance and a strong commitment to social reform, as you see it. However, you at times it also seems to me allow that sense of grievance to become obsessive and you become quite insensitive to the effect of your views on others and indeed you seem unable to hear and heed the views of others. It’s part of living in a tolerant society that there be different views. There must also be a degree of tolerance towards others points of view as well...”

80. On 29 July 2004, the defendant appealed the decision to the District Court of NSW (04/22/3321). On or about 18 February 2005, the defendant sent a note seeking to withdraw the appeal. Consequently, the appeal was dismissed.

81. On 30 November 2004, the defendant commenced proceedings in the Supreme Court of NSW seeking orders that his conviction for common assault be dismissed and that the police prosecutor pay him $25,000 in compensation (2004/13991). On 1 February 2005, Barr J refused leave to appeal and held that the defendant had been able to obtain a fair hearing in the District Court of NSW.

82. On 16 May 2005, the defendant commenced further proceedings in the Supreme Court of NSW seeking orders that his conviction be overturned and that a costs order be made in his favour (2005/12019). Kirby J granted leave for the defendant to file an Amended Summons.

83. On 25 October 2005, the defendant filed an affidavit in support of his summons and written submissions were filed by both parties thereafter. On 7 February 2006, Hoeben CJ at CL dismissed the summons and made the following findings:

“[27] The plaintiff’s submissions are confused and confusing. At their heart there is an allegation that there has been a denial of natural justice because the plaintiff has been treated unfairly. The unfairness seems to relate to the refusal by the learned Magistrate hearing the matter in the Local Court to accede to the plaintiff’s applications. Thereafter, the plaintiff’s submissions consist of a series of wild allegations relating to his inability to obtain a fair trial in NSW because of the unfitness of the judiciary to properly deal with his case and other matters which involve various conspiracies which the plaintiff believes are directed against him personally. It is not necessary to analyse these matters in any particular detail. It is sufficient to say that none of the allegations made by the plaintiff raise any proper issue as to the fairness or adequacy of the proceedings before the Local Court on 2 July 2004 as a result of which he was convicted of assault.

[28] Any fair reading of reading of the transcript of 2 July 2004 makes it clear that the plaintiff gave the learned Magistrate no proper reasons for either staying the proceedings or for disqualifying herself… Nowhere in his submissions, either written or oral, has the plaintiff been able to identify any error in the way in which the prosecution for assault was dealt with in the Local Court.”

84. On or about 30 June 2006, the defendant applied to the Local Court to annul his conviction for assault (62906/03/49).

85. Finally, on 23 January 2004, Magistrate Stoddart dismissed the defendant’s collateral proceedings against the principal of the school.

Industrial Relations Commission proceedings

86. The defendant commenced unfair dismissal proceedings on 14 July 2003 against the NSW Department of Education and Training (2003/3872). The defendant made a number of claims of a conspiracy or “feminist, racist plot” operating against him.

87. On 17 November 2004, the defendant filed a motion seeking orders that his dismissal from the school was unfair and giving his version of events that he alleged was “true and correct”. The defendant submitted that if the Commission did not grant these orders, he wished to subpoena the children from the school to give evidence.

88. On 22 November 2004, the defendant filed a motion in which he sought to be reinstated in his position as a teacher of the school and payment for lost wages, psychological and physical injuries, costs and stationery amounting to $328,790. Three months afterwards, on 3 March 2005, the defendant filed a further motion seeking $900,000 as compensation for damage to his “livelihood and work everywhere”.

89. On 17 May 2005, Grayson DP heard the matter. On 24 March 2006, Grayson DP dismissed the defendant’s application and noted that his monetary compensation claims were beyond the Commission’s power. Grayson DP also noted:

“[8] The applicant’s evidence and written submissions make regular reference to the incident giving rise to the police arresting him as being a feminist, racist plot against him and also to his efforts as a self-described social reformer to eradicate the so-called virus of feminism from society. I found no objective basis upon which it could be found that there was such a conspiracy.”

Defendant’s Bankruptcy proceedings

90. The defendant was declared a bankrupt on 23 May 2005 and sequestration orders were made in the Federal Magistrates Court against the defendant’s estate (2005/SYG1034). On 12 December 2005, the Official Trustee commenced proceedings in the Supreme Court of NSW for possession of the defendant’s property for failing to file a statement of affairs with the Official Receiver and provide a copy to his trustee in bankruptcy. On 18 April 2006, the defendant filed a defence in this Court and the matter came before me.

91. On 16 May 2006, the defendant filed an application in the then Federal Magistrates Court in the name of the Owners Corporation Strata Plan No. 811 seeking the following: an annulment of the 23 May 2015 sequestration order; a stay of proceedings in the Supreme Court; a grant of Legal Aid; an order that the “opponents of Tosson Mahmoud calling themselves the owners’ corporation 811” were an illegitimate body; an order that the defendant did not owe any money; and an order that the defendant had paid all of his levies in respect of the Owners Corporation (2006/SYG1420). Barnes FM refused to grant any of the interim orders.

92. On 6 June 2006, the defendant filed a motion in this Court seeking a stay of the bankruptcy proceedings pending the hearing of his annulment application in the Federal Magistrates Court (2005/15839). The matter came before me again and I dismissed the application for a stay and listed the matter for hearing on 29 June 2006.

93. On 25 October 2006, the defendant filed an application for an adjournment of the annulment proceedings (2006/SYG1420). On 7 December 2006, Lucev FM dismissed the defendant’s annulment application in the Federal Magistrates Court.

94. The defendant brought an application for leave to appeal the decision of Barnes FM on 13 June 2006 in the Federal Court (2006/NSD1131). On 30 June 2006, Conti J dismissed the defendant’s application for interim relief.

95. During this time, the defendant further commenced proceedings in the Court of Appeal seeking leave to appeal from the decision of 19 June 2006 and a stay of proceedings pending the determination for leave to appeal of the Federal Magistrates Court proceedings (2006/40486). On 14 August 2006, Mason P dismissed the defendant’s motion for a stay of the Supreme Court proceedings (2006/40486). On 10 November 2006, the Court of Appeal dismissed the appeal.

96. Further, on 4 September 2006, Tamberlin J dismissed the defendant’s application in the Federal Court for leave to appeal Barnes FM’s decision and held the appeal did not have any reasonable prospects of success (2006/nsd1131).

97. Somewhat unusually, during his bankruptcy proceedings, the defendant commenced proceedings in this Court seeking an order that the practising certificate of the legal representative of the Owners Corporation be cancelled (2006/SYG1420). Consequently, the legal representative filed a motion seeking the defendant’s application be struck out. In 2006, Adams J granted the motion and struck out the defendant’s summons.

98. On 9 January 2007, the defendant filed a motion in this Court seeking a stay of the writ of possession (2005/15839). On 12 January 2007, Hall J dismissed the defendant’s application for a stay.

99. The defendant filed a further motion in this Court seeking a stay of the notice to vacate until the conclusion of the proceedings in the Federal Magistrates Court, the Federal Court and the High Court, or in the alternative, for a two month stay (2005/15839). On 14 February 2007, Studdert J dismissed the defendant’s motion for a stay of proceedings.

100. Finally, on 18 October 2007, Lucez FM dismissed the final remaining prayers in the defendant’s application for an annulment (2006/SYG1420).

Proceedings against Vincent Sutherland

101. On 24 December 2009, the defendant commenced proceedings in the Downing Centre Local Court for an AVO against another lot owner, Vincent Sutherland (2009/327342). On 6 January 2010, an interim AVO was granted. However, on 20 April 2010, Magistrate Heilpern dismissed the defendant’s application for an AVO and ordered him to pay the lot owner’s costs.

102. On 20 April 2010, the defendant filed a notice of intention to appeal to the District Court of NSW (2008/68446). The defendant later filed two motions, one on 14 September 2010 and the other on 11 October 2010, seeking orders in relation to the transcript and audio recording of the 20 April 2010 hearing. On 27 October 2010, King DCJ dismissed the motion of 11 October 2010 on the basis that it was identical to the 14 September 2010 motion.

103. On 12 November 2010, the defendant commenced proceedings by summons in the Court of Appeal seeking a prerogative writ to set aside the orders of King DCJ (2010/376765). At that time, for such a summons to be considered by the Court of Appeal, written submissions were required to be provided. The summons was dismissed as written submissions had not been provided. Thereafter, the defendant commenced further proceedings by summons, with written submissions, in the Court of Appeal on 16 February 2011 (2011/51406). On 18 March 2011, the Court of Appeal dismissed the defendant’s summons.

104. On 24 March 2011, the defendant made a number of applications in this Court seeking that the hearing proceed on tape, rather than transcript; for Mr Sutherland to produce certain evidence; and for Mr Sutherland to provide medical evidence as to the reason he uses crutches. Garling J dismissed all the applications and set-down a hearing date for 5 May 2011.

105. On 6 May 2011, Knox DCJ dismissed the defendant’s appeal against the Magistrate Heilpern’s decision. Knox DCJ held that there was a clear inference that the Magistrate regarded the defendant’s complaint as frivolous or vexatious.

106. On 4 October 2011, the defendant filed a summons in the Court of Appeal seeking to set aside the decision of Knox DCJ (2011/31682).

107. The Court of Appeal granted the appeal in respect of the costs order by Magistrate Heilpern, remitted that question of costs to the District Court and otherwise dismissed the defendant’s appeal (2011/31682). The Court also found that Knox DCJ erred by failing to form or state a view himself as to whether the application before the Magistrate was frivolous or vexatious.

108. On 24 October 2012, the defendant filed an application in the High Court for special leave to appeal the decision of the Court of Appeal (2012/309). On 11 February 2013, Heydon J directed the defendant to reconsider the allegations made against the Court of Appeal, Magistrate Heilpern and those responsible for the transcript in the Local Court.

109. On 7 June 2013, Cogswell DCJ set aside the costs order of Magistrate Heilpern. Cogswell DCJ found that Magistrate Heilpern did not have sufficient evidence to conclude that the defendant’s behaviour was frivolous or vexatious.

Proceedings against New South Wales Police

110. In March 2006, the New South Wales police arrested the defendant in relation to an ongoing dispute with the Owners Corporation. On 26 October 2011, the defendant filed a Further Amended Statement of Claim against the State of New South Wales in respect of police conduct during the course of his arrest.

111. On 17 December 2012, a consent judgment was entered in the defendant’s favour for $110,000 plus costs. On 30 November 2012, the defendant accepted the offer of compromise and the judgment sum was paid on 11 January 2013.

112. However in late 2013, the defendant filed a motion seeking to set aside the consent orders and for costs to be awarded on an indemnity basis. On 4 December 2013, Harrison J dismissed the defendant’s application as “wholly without merit” and dismissed the matter except for one extant issue relating to the interest on the judgment sum: at [23], Mahmoud v State of New South Wales [2013] NSWSC 1785.

The Defendant’s Written Submissions

113. The defendant sought, and was granted, an extension of three days to file and serve his written submissions. In the defendant’s written submissions, thirty one grounds are identified on which he seeks to rely.

114. In summary, the defendant argues that he should not be declared a vexatious litigant because of his distinguished and formidable reputation as head of the conservative movement and as the first social reformer in Australia. Furthermore, he asserts that he has contributed significantly in the political and social achievements in Australia over the past 21 years, even though he has been subjected to, and suffered, a series of “racist”, “criminal”, “shocking”, “vicious” and “malicious” attacks since 1998. Consequently, the defendant denies that he has been vexatious in the conduct of any proceedings and, instead, argues that the proceedings against him should be dismissed on the basis of medical impairment, ill-health and his considerable work in achieving the release of Peter Greste from imprisonment.

115. In his submissions, the defendant outlines his investigations of systemic corruption in the Liberal and Labor Government in New South Wales. As enlightening and informative as are his allegations, it has little or no relevance to the matters that I need to decide in these proceedings. Rather, the submission, in this respect, seeks to support the defendant’s position that the proceedings commenced against him are unlawful.

116. Additionally, the defendant argues that the longevity of the cases relied upon by the plaintiff, the earliest being 1999, should diminish the impact of his later litigious enthusiasm.

117. Furthermore, the defendant submits that the plaintiff is a ghost, seemingly to suggest that the Attorney-General does not have the requisite standing to commence proceedings against him. The defendant also asserts that he has been hindered by his inability to obtain legal advice and assistance in the current proceedings. I will not go into this submission any further. The defendant’s submission has been sufficiently dealt with in this respect in the reasons for judgment of Hoeben CJ at CL.

118. The defendant submits that he is anxious of the likely adverse publicity he will receive if he is declared a vexatious litigant. While I am sympathetic to this submission, it does not alleviate the issues with which the Court must be concerned in determining whether an order, if any, is warranted or justified.

119. Later in his submissions, the defendant embarks upon a tirade of extravagant, malicious and conspiracist allegations involving dishonesty, abuse of process and power, collusion, corruption and fraud, in which he attacks a number of different persons, judicial officers and institutions.

120. Notwithstanding this tirade, the defendant raises and relies upon a favourable statement from a judicial officer of the District Court who did not consider his application as frivolous or vexatious.

121. Finally, the defendant claims he is entitled to costs in the amount of $87,169.10. This figure is quantified in the defendant’s Statement of Costs at $50 per hour, which is comprised the hours he has spent preparing his case and searching the law during the period of 5 September 2013 to 23 March 2015.

122. On 7 April 2015, the defendant served additional supplementary written submissions to the Court and Crown Solicitor’s Office which comprised 51 pages entitled, “Report on the inspection of the file Gross Abuses of process – Further grounds to dismiss case – Stolen evidence, affidavits and documents – Tampering with the file of the case – Insertion of documents in the file not to the knowledge of neither myself nor the Supreme Court nor the Judiciary”.

123. These further submissions contained serious allegations of corrupt and illegal conduct by the Crown Solicitor’s Office. The plaintiff relies on the defendant’s further submissions in the determination of these proceedings.

Consideration

124. The Vexatious Proceedings Act was enacted to protect the public and the court itself from frivolous and baseless litigation. As earlier stated, this Court may give weight to the result of the previous proceedings, as well as the opinions and views expressed by judges in those proceedings. Nevertheless, the Court must still, independently, form its own view on each proceedings relied upon by the plaintiff to determine whether the defendant has frequently instituted or conducted vexatious proceedings. The Court must be satisfied that an order should be made, before exercising its discretion to declare the defendant a vexatious litigant.

124. After reviewing the defendant’s lengthy litigious history, it is clear that the hostility that arose between the defendant and Executive Committee members of the Owners Corporation and the revocation of the defendant’s position as a member of that committee has likely been the major cause of the defendant’s grievance. As a consequence of this perceived grievance or injustice, the defendant has set in motion a series of proceedings that span over 15 years and involve numerous different persons, institutions and arms of government.

125. In my opinion, the defendant has frequently instituted and conducted proceedings as a result of the obsession he has with his perceived grievance against the Executive Committee. The manner in which the defendant has reacted since his initial grievances has turned into a series of unrestrained and unreasonable proceedings.

126. In my view, the defendant’s litigation history demonstrates that he is unable to accept the finality of matters decided against him. The frequency of his initiation of proceedings, namely the Strata Plan. 881, assault and bankruptcy proceedings, is indicative of the defendant’s dogged refusal to accept the conclusiveness of a decision by relitigating or appealing matters, comprising of similar or identical submissions previously decided by a court or tribunal.

127. The series of proceedings in which the defendant has been involved also reveals that the defendant has used the courts as a forum to express extravagant and malicious allegations without providing any evidence to support his imputations. No party has been given the opportunity to defend these unfounded allegations.

128. The defendant has also frequently and tenaciously commenced and pursued litigation on behalf of the Owners Corporation, even though he has been informed by judicial and quasi-judicial officers on many occasions that he has no legal authority to commence such proceedings. I consider that the defendant has instituted and pursued proceedings on behalf of the Owners Corporation, without reasonable grounds, to harass and annoy the members of the Executive Committee for the principal purpose of being reinstated or gaining control of that committee.

129. In another set of costs proceedings, the defendant applied for a discontinuance of proceedings on behalf of the Owners Corporation, in which he stated that the matter before the Court had been resolved by consent. This statement was repudiated by the Owners Corporation legal representative. The effect of the defendant’s statement to the Local Court was to absolve himself of any legal ramifications or consequences for the earlier proceedings he had voluntarily instituted and conducted without reasonable grounds.

130. I am entitled to take into account the costs incurred by the Owners Corporation in responding to the defendant’s litigation. Subsequent proceedings have been brought against the defendant to recover the costs borne by the Owners Corporation for the purpose of defending the frequent baseless applications instituted by the defendant.

131. I note that bankruptcy and sequestration orders were made against the defendant’s estate on 23 May 2005 as a result of the costs order awarded against the defendant in the Strata Plan No. 881 proceedings. It is unlikely that the defendant will ever be able to satisfy any costs order made against him.

132. I am satisfied that in all of the circumstances the defendant has commenced or pursued litigation without reasonable grounds and in doing so, has incurred cost orders against him, which are unlikely to be satisfied. I am also satisfied that such conduct constitutes an abuse of the process of a court and tribunal.

133. I also take into account the attitude and conduct of the defendant during these and previous proceedings. The defendant’s conduct during these and previous proceedings is epitomised by his frequent requests made in Court, without merit, that judicial officers disqualify themselves from hearing matters on the basis of prejudice. I have noted that an application for a judicial or quasi-judicial officer to disqualify themselves has occurred in the majority of the defendant’s litigation. Often, the request is based on the gender or perceived race of the judicial officer and is itself redolent of discrimination. The pursuit of these applications appears to be for the purpose of delaying the proceedings and advancing his own interests, in particular when the defendant deems the proceedings to be unfavourable.

134. I bear in mind that the defendant has sought to recover from the plaintiff an award to compensate for his costs in these proceedings. The costs claim may be only described as wholly disproportionate, since it does not reflect the quantifiable loss that the defendant would have incurred if he had run the matter properly himself or engaged a solicitor. It is a well established principle that a self-represented litigant may not recover costs, leaving aside disbursements, for preparing and presenting a case: Cachia v Hanes [1994] HCA 14; (1994) 179 CLR 403.

135. I note, finally, that the defendant has not obeyed any case management orders made by this Court for the filing and serving of motions. Nor has he adequately prepared his case for the hearing before me.

136. I have little doubt that the defendant will institute and pursue further litigation, without reasonable grounds, and will likely repeat similar rhetoric as he has displayed in this Court before me and other judicial officers, without proper supporting evidence or an adequate legal basis. This conduct constitutes an abuse of the court and I am satisfied that, in the circumstances set out above, it is appropriate that vexatious proceedings orders be made. I note that any such order will not prevent the defendant from defending proceedings brought against him, nor from commencing proceedings by leave of this Court, which, subject to procedural requirements, will be granted where the proceedings would not be vexatious and there is a prima facie basis for the proceedings: s 16 of the Act.

Orders

138. The Court makes the following orders:

Pursuant to s 8(7)(b) of the Vexatious Proceedings Act 2008, Mr Tosson Mahmoud is prohibited from instituting proceedings in New South Wales other than with leave of an appropriate court under that Act;

Pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008, any legal proceedings instituted by Mr Tosson Mahmoud in any court or tribunal in New South Wales before the date of this order are hereby stayed.

Annexure A

Schedule of proceedings instituted and conducted by the defendant

Legend of abbreviations contained in chronology

CTTT         Consumer, Trader and Tenancy Tribunal

DC         District Court

FCA         Federal Court of Australia

FMC         Federal Magistrates Court

HCA         High Court of Australia

LC         Local Court   

NSWCA      New South Wales Court of Appeal

NSWSC      New South Wales Supreme Court

Date Commenced	Forum	Subject	Date Determined	Outcome
21 September 2001	CTTT (SA 01/00251;SA 01/00333).	Defendant’s dispute with Owners’ Corporation Strata Plan 811	27 June 2002	Application for appeal and stay of orders. No appearance by defendant. Dismissed by Registrar of CTTT.
23 August 2002	CTTT (SCS 02/32425)	Defendant’s dispute with Owners’ Corporation Strata Plan 811	27 August 2002	Application for the matter to be reheard. Dismissed by Registrar of CTTT.
September 2003	CTTT (SCS 03/44303; SCS 03/47909; SCS 03/54303; SCS 03/34554)	Defendant’s dispute with Owners’ Corporation Strata Plan 811	29 April 2004	Four proceedings commenced on behalf of the Owners Corporations against lot owner, strata agent and real estate agent. All dismissed by Registrar of CTTT.
15 July 2004	CTTT (SCS 04/26463)	Defendant’s dispute with Owners’ Corporation Strata Plan 811	15 July 2004	Appeal to CTTT against 29 April 2004 decision on behalf of the Owners Corporation. Appeal dismissed.
5 August 2004	CTTT (SCS 03/44303; SCS 03/47909; SCS 03/54303; SCS 03/34554)	Defendant’s dispute with Owners’ Corporation Strata Plan 811	10 August 2004	Application for rehearing of 15 July 2004 appeal on behalf of the Owners Corporation. Dismissed.
15 December 2004	CTTT (SCS 04/57414)	Defendant’s dispute with Owners’ Corporation Strata Plan 811	7 March 2005	Application on behalf of the Owners Corporation against lot owner. Application dismissed.
5 September 2003	LC (2003/9429)	Defendant’s Local Court and Supreme Court proceedings	13 November 2003	Proceedings commenced on behalf of the Owners Corporation. Dismissed.
11 December 2003	NSWSC (2003/13315)	Defendant’s Local Court and Supreme Court proceedings	12 March 2004	Appeal to set aside LC decision. Dismissed with costs.
19 December 2003	LC (2003/4273)	Defendant’s Local Court and Supreme Court proceedings	28 January 2004	Proceedings commenced on behalf of the Owners Corporation against lot owner. Default judgment against lot owner.
13 April 2004	LC (4273/03)	Defendant’s Local Court and Supreme Court proceedings	31 May 2004	Lot owner filed motion to set aside default judgment. Set aside and costs ordered.
28 June 2004	NSWSC (2004/11985)	Defendant’s Local Court and Supreme Court proceedings	16 Aug 2004	LC judgment set aside. Dismissed with costs.
18 July 2000	LC (204118/00/46)	AVO	18 February 2002	Stanley Wise commenced proceedings seeking an AVO against defendant. Interim AVO granted and hearing before Burwood Local Court on 15 August 2000. On 22 February 2000 Interim AVO against defendant revoked and no further orders made. Proceedings adjourned to 12 December 2000. Final AVO granted against defendant and ordered to pay costs.
26 July 2000	LC (231642/00/46)	AVO	27 August 2001	Proceedings commenced seeking an AVO against Judith Wise. Dismissed and costs ordered.
26 July 2000	LC (228099/00/46)	AVO	27 August 2001	Proceedings commenced seeking an AVO against Benjamin Wise. Dismissed and costs ordered.
24 January 2001	LC (13338/01/46)	AVO	2 February 2001	Elizabeth Bodeker commenced proceedings seeking an AVO against defendant. Interim AVO granted. Later revoked in full on 13 February 2001 as defendant did not receive notice of court date. An interim AVO was granted on 27 February 2001, 5 April 2001, 11 May 2001, 23 July 2001, 17 September 2001 and 18 February 2002.
15 February 2001	LC (22923/01/46)	AVO	23 February 2001	Proceedings commenced seeking an AVO against Ms Bodeker. Dismissed.
4 July 2002	LC	Local Court Claims Against Defendant	1 December 2003	Owners Corporation commenced proceedings against defendant for unpaid fees, interest and costs. Judgment for Owners Corporation plus costs.
24 May 2004	LC	Local Court Claims Against Defendant	17 September 2004	Owners Corporation commenced proceedings against defendant for unpaid fees, interest and costs. Judgment for Owners Corporation.
22 May 2003	LC (90528/03/19)	Assault	2 July 2004	Defendant found guilty of common assault.
30 May 2003	LC	Assault	23 January 2004	Proceedings commenced against teacher for assault. Dismissed.
28 June 2004	NSWSC (2004/12180)	Assault	28 June 2004	Appeal to NSWSC. Dismissed.
29 July 2004	DC (04/22/3321)	Assault	18 February 2005	Appeal to DC. Withdraws appeal.
30 November 2004	NSWSC (2004/13991)	Assault	1 February 2005	Orders seeking conviction for assault be dismissed and costs order. Leave to appeal refused.
16 May 2005	NSWSC (2005/12019)	Assault	7 February 2006	Orders seeking conviction for assault be dismissed and compensation. Dismissed.
30 June 2006	LC (62906/03/49)	Assault	-	Application for annulment of conviction for common assault.
14 July 2003	IRC (2003/3872)	Employment at School	24 March 2006	Proceedings commenced against NSW Department of Education and Training for unfair dismissal. Dismissed. Mahmoud v Department of Education and Training [2006] NSWIRComm 56
23 May 2005	FMC (2005/SYG1034)	Bankruptcy	23 May 2005	Sequestration order made against defendant’s estate.
12 December 2005	NSWSC	Bankruptcy	12 December 2005	Official Trustee commenced proceedings for possession of the defendant’s land. Prosecution commenced on 14 February 2006 against defendant for failing to file a statement of affairs with Official Trustee and provide a copy to his trustee in bankruptcy.
18 April 2006	NSWSC	Bankruptcy	18 April 2006	Filed defence to Official Trustee’s Statement of Claim. Official Trustee filed motion on 3 May 2006 to strike out defence and summary judgment.
16 May 2006	FMC (2006/SYG1420)	Bankruptcy	23 May 2006	Application for annulment of sequestration orders and additional orders on an interim basis. Interim orders refused. Mahmoud v The Owners Corporation Strata Plan 811 [2006] FMCA 879
25 October 2006	FMC (2006/SYG1420)	Bankruptcy	25 October 2006	Motion dismissed. Mahmoud v The Owners Corporation Strata Plan 811 (No 2) [2006] FMCA 1711
13 June 2006	FC (2006/NSD1131)	Bankruptcy	4 September 2006	Appeal 23 May 2006 decision to FC. Leave to appeal dismissed. Mahmoud v The Owners Corporation Strata Plan 811 [2006] FCA 1233
6 June 2006	NSWSC (2005/15839)	Bankruptcy	19 June 2006	Motion seeking stay of proceedings pending hearing of annulment application in FMC. Dismissed and listed matter for hearing.
2 August 2006	NSWSC (2005/15839)	Bankruptcy	14 November 2006	Summary judgment granted for Official Trustee in Bankruptcy. Official Trustee in Bankruptcy v Mahmoud [2006] NSWSC 1194
7 August 2006	NSWCA (2006/40486)	Bankruptcy	10 November 2006	Appeal to NSWCCA. Dismissed leave to appeal 19 June 2006 decision.
7 August 2006	NSWSC (2006/40486)	Bankruptcy	14 August 2006	Application for stay of NSWSC proceedings pending determination of application for leave to appeal and determination of FMC proceedings. Application dismissed.
25 October 2006	FMC (2006/SYG1420)	Bankruptcy	7 December 2006	Application for annulment of sequestration order dismissed. Mahmoud v The Owners Corporation Strata Plan 811 (No 3) [2006] FMCA 1742
15 November 2006	NSWSC (2006/15166)	Legal Practitioner of Owners Corporation	4 December 2006	Summons against solicitor representing Owners Corporation struck out.
9 January 2007	NSWSC (2005/15839)	Bankruptcy	12 January 2007	Application dismissed for stay of writ of possession. Official Trustee in Bankruptcy v Mahmoud [2007] NSWSC 3
9 February 2007	FMC (2006/SYG1420)	Bankruptcy	18 October 2007	Dismissed all remaining prayers. Mahmoud v The Owners Corporation Strata Plan 811 [2007] FMCA 131 Mahmoud v The Owners Corporation Strata Plan 811(No 2) [2007] FMCA 474
12 February 2007	NSWSC (2005/15839)	Bankruptcy	14 February 2007	Application for stay of notice to vacate until finalisation of FMC, FCA and HCA proceedings. Dismissed. Official Trustee in Bankruptcy v Mahmoud [2007] NSWSC 73
24 December 2009	LC (2009/327342)	AVO against Vincent Sutherland	20 April 2010	AVO dismissed and ordered to pay costs. Filed two notices of appeal to DC dated 14 September 2010 and 11 October 2010.
14 September 2010	DC (2008/68446)	AVO against Vincent Sutherland	27 October 2010	Dismissed 11 October 2014 application. Appeal to NSWCA to set aside orders.
12 November 2010	NSWCA (2010/376765)	AVO against Vincent Sutherland	29 November 2010	Appeal dismissed.
16 February 2011	NSWCA (2011/51406)	AVO against Vincent Sutherland	18 March 2011	Appeal dismissed.
24 March 2011	NSWSC	AVO against Vincent Sutherland	24 March 2011	All applications dismissed.
6 May 2011	DC	AVO against Vincent Sutherland	6 May 2011	Dismissed LC appeal.
4 October 2011	NSWCA (2011/31682)	AVO against Vincent Sutherland	26 September 2012	Appeal to NSWCA to set aside DC decision. Appeal granted in respect of costs order and matter remitted to DC. Otherwise, appeal dismissed. Mahmoud v Sutherland [2012] NSWCA 306
24 October 2014	HCA (2012/309)	AVO against Vincent Sutherland	11 February 2013	Application for special leave to appeal to HCA. Heydon J orders directions. Amended application for special leave to appeal to HCA. Mahmoud v Sutherland & Anor [2013] HCA Trans 8
7 June 2013	DC	AVO against Vincent Sutherland	7 June 2013	Costs order ordered by LC on 20 April 2010 set aside.
26 October 2011	NSWSC	NSW Police	17 December 2012	Judgment for defendant $110,000 plus costs. Applies to set aside consent orders and sought costs on indemnity basis.
15 November 2013	NSWSC	NSW Police	4 December 2013	Dismissed.
26 March 2014	NSWSC (2013/266710)	Vexatious proceedings	1 April 2014	Application for stay of proceedings dismissed. Applicant on motion ordered to pay costs. Attorney General in and for the State of New South Wales [2014] NSWSC 392
4 July 2014	NSWSC (2013/266710)	Vexatious proceedings	18 July 2014	Application for stay of proceedings and summary dismissal of proceedings dismissed. Applicant on motion ordered to pay costs. Attorney General in and for the State of New South Wales [2014] NSWSC 970
24 September 2014	NSWSC (2013/266710)	Vexatious proceedings	9 October 2014	All applications dismissed. Attorney General in and for the State of New South Wales [2014] NSWSC 1378
4 March 2015	NSWSC (2013/266710)	Vexatious proceedings	4 March 2015	Application for stay of proceedings dismissed. Applicant on motion ordered to pay costs. Attorney General in and for the State of New South Wales [2015] NSWSC 153

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Decision last updated: 25 September 2015