Attorney-General for the State of South Australia v Burke

[1997] SASC 6014

IN THE SUPREME COURT OF SOUTH AUSTRALIA

PERRY, J

Practice and procedure - vexatious litigants - Application by the Attorney-General for an order staying various proceedings instituted in the Supreme Court and prohibiting the defendant from instituting any further proceedings without leave of the Court - discussion of the relevant principles - order granted. Supreme Court Act 1935s39; Vexatious Actions Act (1896) (UK) , referred to. Attorney-General v Van Reesema (1986) 43 SASR 170; Attorney-General v Wentworth (1988) 14 NSWLR 481; In re Vernazza [1960] 1 QB
197; Jones v Skyring (1992) 109 ALR 303; Re Attorney-General of the Commonwealth and Anor ex parte Skyring (1996) 135 ALR 29, considered.

ADELAIDE, 24-26 July 1997 (hearing), 20 February 1997 (decision)

#DATE 20:2:1997

#ADD 21:5:1997

Plaintiff:

Counsel: Ms R D De Palma

Solicitors: Crown Solicitor (SA)

Defendant:

In Person

Order:

1. Prohibiting the defendant from instituting further proceedings without leave of this Court.

2. Staying the following proceedings in this Court, namely:

Action No 2367 of 1985

Action No 3256 of 1985

Action No 3798 of 1986

Action No 2859 of 1987

Action No 243 of 1989

Action No 634 of 1990

Action No 885 of 1990

Action No 445 of 1996

until further order.

3. That a copy of this order, together with a copy of these reasons, be served on the Registrar of the District Court, the Registrar of the Magistrates Court, and the solicitors on the record for the other parties to the proceedings which I have stayed.

PERRY J

1. This is an action commenced by summons issued by the Attorney-General on 20 July 1995. With the summons was filed an affidavit of Ms De Palma of the Crown Solicitor's Office in which she set out the orders sought and briefly summarised the grounds relied upon. The nature of the orders sought appears from paragraph 23 of the affidavit which reads:

"The plaintiff is of the opinion that the defendant has persistently instituted vexatious proceedings as defined in s39(1) of the Act (the SupremeCourt Act 1935) in that the defendant has persistently instituted proceedings without reasonable ground. Accordingly the plaintiff applies to this Honourable Court for the following orders:

(a) an order prohibiting the defendant from instituting further proceedings without leave of the court: and

(b) an order staying proceedings already instituted by the defendant." 2. In the affidavit Ms De Palma refers to nine actions instituted by the defendant in this Court between 1984 and 1990, one action instituted in the District Court in 1985 and an action instituted in the Planning Appeal Tribunal in 1990.

3. She lists separately a further four actions instituted in the High Court of Australia between 1988 and 1992.

4. The actions to which I have so far referred total fifteen in all. Exhibited to Ms De Palma's affidavit were fifteen separate documents comprising a summary of the events which took place in each of the actions, together with copies of documents comprising the court file in each case.

5. By a further affidavit filed in June 1996 Ms De Palma drew the attention of the Court to the existence of two further proceedings which further inquiries made on behalf of the plaintiff revealed had been instituted by the defendant. One was an action instituted in the Supreme Court in 1996 and the other proceedings instituted in 1995 in the Residential Tenancies Tribunal. As with the earlier affidavit, annexed to the further affidavit were summaries of the course of each of the two proceedings referred to in the affidavit, with copies of the documents filed in the Residential Tenancies Tribunal.

6. The documents to which I have referred so far, with one or two minor additions, constituted the material which was eventually before the court on the hearing of the plaintiff's application.

7. At all stages of this action, including the hearing of it, the defendant has appeared on his own behalf. Indeed, that is the case with all of the proceedings which have been referred to during the course of the hearing before me.

8. I will give a brief outline of the course of the proceedings.

9. The defendant filed a number of affidavits, and as will be seen, took out certain pre-trial applications. At his request, I received four of the affidavits into evidence. No pleadings were directed to be filed, but the action proceeded on the basis of the affidavits filed by both parties.

10. In October 1995, a Master ordered that the plaintiff file and deliver an outline of argument setting out "the factual material upon which the Attorney-General relies from the various files together with the legal argument".

11. Pursuant to that order in December 1995, the plaintiff filed a comprehensive outline of his argument, running to some 56 pages. In it, he set out his contentions as to the various questions of law and the specific submissions which he advanced with respect to each of the various actions which had been instituted by the defendant and upon which the plaintiff relied in advancing his case.

12. In February 1996, during the course of a directions hearing before a Master, the defendant applied for leave to issue third party notices to various persons and bodies. It appears that he sought to join as third parties to the present proceedings all of the parties whom he had sued in the various proceedings relied upon by the plaintiff in support of its application.

13. By order made on 5 February 1996, the Master refused the application. In doing so, he observed:

"There can be no cause of action as between Mr Burke and any of the proposed third parties arising out of the action brought by the Attorney-General against Mr Burke ......" 14. By a notice of appeal filed on 15 February 1996 the defendant purported to appeal to the Full Court against the order of the Master dismissing his application for leave to issue the third party notices. When that came to my attention, I offered to deal with the defendant's notice of appeal on the footing that it be treated as a notice of appeal to a single Judge rather than to the Full Court. I took that view, as the order of the Master refusing leave to issue the third party notices was clearly an interlocutory order for the purposes of s50(3)(b) of the SupremeCourt Act and did not come within any of the stated exceptions to be found in that subsection.

15. At the same time, the plaintiff applied to strike out the appeal as incompetent, on the ground that no appeal lay to the Full Court.

16. After hearing both parties on the matter on 21 May 1996, I gave ex tempore reasons for ruling, part of which reads as follows:

"Early in the course of the hearing of the application before me, I offered to deal with the appeal on the footing that the notice of appeal might be amended to refer expressly to a single judge rather than to the Full Court. In effect I offered to treat the appeal as an appeal to a single judge so that the merits of it might be addressed by me.

Mr Burke was not inclined to accept that suggestion without an assurance that any decision made on the appeal to a single judge, if that was the course which he took, could be made in turn the subject matter of a further appeal to the Full Court as of right. However, after hearing argument on that aspect of the matter, it appeared to me that no assurance could be given that there would be any further appeal as of right. On the contrary, it seemed to me that any further appeal might then well require leave.

I therefore proceeded to hear Mr Burke out on the objection taken by the plaintiff to the competence of the appeal, given that it purported to be an appeal to the Full Court, and given the fact that no leave had been given for its institution." 17. I went on to strike out the notice of appeal as incompetent. I then referred into open court the plaintiff's substantive application for hearing.

18. Just before the hearing was due to commence, Mr Burke took out an application that the hearing be adjourned. He supported the application by an affidavit which exhibited other material. It is unnecessary to go into the detail of that material except to indicate that I took the view at the time that no proper ground had been made out to adjourn the hearing.

19. Amongst other things, Mr Burke indicated that he had not had sufficient time to prepare his response to the case being mounted by the plaintiff. However, he had been in possession of the detailed outline of argument, together with a summary of the various actions brought by him which were relied on by the plaintiff, as from early in December 1995.

20. I ordered that his application to adjourn the hearing be dismissed, but I intimated at the same time that he would be given appropriate time to respond to any matter which he satisfied me might have caught him by surprise.

21. During the course of the hearing, which then proceeded between 24 and 26 July 1996, I treated as evidence before me the two affidavits of Ms De Palma to which I have referred, together with all the exhibits, which included the summaries and extract of documents from each of the relevant proceedings.

22. In view of the defendant's concern for me to be informed as to the course of certain bankruptcy proceedings brought against him by the University of Adelaide in the Federal Court, I gave leave for Mr Burke to tender as part of his case the documents relating to those proceedings by lodging them with my associate. After the completion of the hearing, Mr Burke lodged in court a copy of the bankruptcy notice against him issued by the University of Adelaide dated 23 September 1991 and copies of various affidavits sworn by him in the course of those proceedings, together with some other incidental material generated with respect to the petition subsequently issued by the University of Adelaide, which was dismissed by the Federal Court on 23 March 1992.

23. At the same time Mr Burke lodged with the court supplementary written submissions against the making of the order sought by the plaintiff, which comprised some six pages.

24. I gave to both parties during the course of the hearing the opportunity to give or call oral evidence before me. Neither party wished to do so.

25. I have been at pains to outline the course of the proceedings and to identify the material before me upon which the plaintiff's application falls to be determined. That I have done so is a reflection in part of the fact that the defendant has been unrepresented throughout, a circumstance, which, despite the Court's best endeavours, can give rise to misunderstandings. Furthermore, proceedings of this kind are not common. These have followed a somewhat tortuous course, that being characteristic of most of the litigation in which the defendant has been involved.

26. I pause only to mention one further matter in this prefatory part of the judgment.

27. At one stage of the proceedings the defendant took an objection which amounted to a suggestion that I should disqualify myself on account of bias.

28. It is true that I have had some involvement in some of the litigation brought in this Court by the defendant over the years. The two matters in particular with which I have had more than a passing contact were action No 2367 of 1985, being an action brought by the defendant against the University of Adelaide and action No 445 of 1996, being an action brought by the defendant against the Liberal Party of Australia, SA Division.

29. In the former of those two actions I delivered the judgment of the Full Court on an appeal brought by Mr Burke against the dismissal of the action, giving reasons with which the other two members of the Court (King CJ and Cox J concurred).

30. The latter action involved an attempt by the defendant to obtain a declaration that a decision made in November 1994 rejecting the defendant's application to be considered for pre-selection for the Federal seat of Boothby in the forthcoming Federal elections was invalid, together with other related relief. On 23 February 1996, I dismissed the action, and on 12 August 1996 the Full Court dismissed an appeal to that Court against my decision.

31. I think it likely that every Judge in this Court has had some contact with the defendant in the course of the litigation instituted by him, and that fact could not give rise to any finding of bias in the context of an application of this kind.

32. A separate suggestion of bias on my part was eventually made by the defendant in connection with the fact that I made full disclosure to him during the course of proceedings that I had been elected as a member of the Council of the Council of the University of Adelaide towards the end of 1995 and remained a member at the time of the trial.

33. At the time when I first broached the matter with the defendant, he raised no objection to me continuing to hear the proceedings. However, he raised the matter again during the course of the trial, at which stage I ruled that there was nothing in the objection and that I would proceed with the hearing. I reserve the right to publish more extensive reasons as to that aspect of the matter, should it become relevant to do so in the course of any other proceedings which might be brought by the defendant.

Legal Principles

34. Section 39 of the Supreme Court Act provides as follows:

"39(1) If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:

(a) an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without leave of the court;

(b) an order staying proceedings already instituted by that person.

(2) Where it appears to the Supreme Court or any other court of the State that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration.

(3) An order under this section remains in force (subject to variation by the court)-

(a) if a period for the operation of the order is fixed - until the expiration of that period or the revocation of the order (whichever first occurs);

(b) if no such period is fixed - until revocation of the order.

(4) Where an order is made under this section, a copy of the order must be published in the Gazette.

(5) For the purposes of this section, proceedings are vexatious-

(a) if instituted to harass or annoy, to cause delay, or for any other ulterior purpose;

or

(b) if instituted without reasonable ground.

(6) A reference in this section to proceedings extends to both civil and criminal proceedings whether instituted in the court or some other court of the State." 35. The history of the legislation is set out in the judgment of O'Loughlin J in Attorney-General v Van Reesema As he points out, the United Kingdom legislation from which s39 is derived was first introduced in 1896 in the form of the Vexatious Actions Act (UK).

36. Section 39 has its analogue in the other jurisdictions of Australia, but it is important to note that there are some differences in wording between the various statutory provisions, including those which presently apply in the United Kingdom. Some assistance is, however, afforded by decisions in other jurisdictions as to the meaning of "vexatious" and as to the circumstances in which it is ordinarily proper to invoke the powers given by the legislation.

37. Section 39 envisages a two-stage process. The plaintiff must first satisfy the court that the defendant has persistently instituted proceedings which are vexatious within the meaning of s39(5). The court must then consider whether or not, in all the circumstances, it is proper to exercise its discretion in favour of the making of the order sought.

38. As to the question of the institution of proceedings, a question arises whether that is restricted to the commencement of fresh actions.

39. During the course of her presentation of the case on behalf of the plaintiff, Ms De Palma contended that various steps taken by the defendant within proceedings which were already in train should be regarded separately as the institution of proceedings for the purposes of s39.

40. The question has been addressed in at least two authorities to which I was referred during the course of argument.

41. In re Vernazza, the majority of the Court of Appeal appear to have been of the view that the lodgment of an appeal in an action already disposed of constituted the institution of proceedings.

42. In the course of his judgment in that case, Wilmer LJ rejected the argument of counsel for the appellant that the words "instituted proceedings" meant the commencement of a fresh action by the issue of a new writ. At the same time he rejected the submission of counsel for the Attorney-General that the taking of any step in an action was the institution of proceedings. He went on to observe:

"I do not think that this is an occasion which makes it necessary to attempt the almost impossible task of drawing an exact line between that which does and that which does not amount to "instituting" proceedings. Speaking for myself, I should have thought that there is much to be said for the view that, when one institutes an appeal in an action which has already been disposed of, one can fairly be said to be instituting proceedings, even though the title of the action and its number may be the same when it gets to the Court of Appeal as in the court below." 43. In Jones v Skyring, Toohey J, after referring to Re Vernazza (supra), held that an application for leave to issue writ or process under HCR O 58 r4(3) (which is in substantially the same terms as SCR R102.09) should be regarded as the institution of proceedings.

44. In Attorney-General v Wentworth (supra), Roden J felt that interlocutory proceedings in a pending action might nonetheless properly be regarded as the institution of proceedings if they seek what he described as "substantive relief". While declining to attempt a definition of "the institution of proceedings", he went on to observe:

"...it is the substance of the matter rather than the form that must be considered". 45. I will adopt that approach.

46. In the result, in some instances, I have rejected the plaintiff's contention that what I perceive to be nothing more than a step in existing proceedings constitutes the institution of proceedings for the purposes of the section. In other instances I have treated steps which go towards more substantive matters as the institution of proceedings. There are, however, not many examples of that. I have treated the institution of an appeal, when it is an appeal against a final rather than an interlocutory order, as the institution of proceedings.

47. I should add that the distinction is likely to be of more importance in other cases rather than in this case. I say that because even on the most limited view of the meaning to be given to the words "instituted .... proceedings", the plaintiff makes out his case.

48. I turn to the test of "vexatious". Is has been pointed out in some jurisdictions, where the wording of the rules is along the lines of "frequently and without reasonable ground has instituted vexatious legal proceedings", that the expression is to a degree tautologous. There is no such problem in this jurisdiction as the words "without reasonable ground" appear in s39 as part of the definition of "vexatious".

49. As will have been seen, s39(5) defines "vexatious" in the alternative. The two alternatives are proceedings which are instituted "to harass or annoy, to cause delay or for any other ulterior purpose", or proceedings which are instituted "without reasonable ground". It is unnecessary to address the question whether the two alternatives are exhaustive of the meaning to be attributed to the word.

50. In the present case, the plaintiff eschews reliance on the earlier part of the definition and proceeds in all respects on the footing that the proceedings relevant to the application have been instituted "without reasonable ground".

51. The words "without reasonable ground" should be given their ordinary meaning. In determining their application in a particular case, it is, however, relevant to have regard to the whole history of the matter. For example, to determine whether they reveal the persistent institution of proceedings for the purpose of "re-agitating .... questions already determined".

52. I am further of the view that in determining whether proceedings have been instituted "without reasonable ground", it is relevant to have regard to steps taken in the proceedings, which although not within themselves the institution of proceedings, may nonetheless be apt to assist in determining whether the proceedings were instituted without reasonable ground.

53. I accept that in determining whether any of the proceedings now in question were instituted without reasonable ground, I must be careful to allow for the fact that throughout the defendant has acted on his own behalf and without the benefit of legal advice or representation. In the result, he has demonstrated a pleading style which is obtuse and prolix. In those circumstances, one must be careful to ensure that buried within the papers put forward by the defendant there is not some worthwhile point. Regrettably, however, when one has regard to the documents filed by the defendant in which one might expect to find an expression of his claim, in almost every instance it is impossible to identify an arguable case.

54. I have endeavoured to allow for the fact that so far as is possible the court should guard against treating any defendant adversely because of an inability on his or her part to plead a cause of action in accepted legal language or style.

55. There have been many instances where a statement of claim filed by the defendant has been struck out because it does not disclose a cause of action, and when given the opportunity to bring in another pleading, it has likewise been struck out. In such cases, eventually this must be regarded as evidence from which the court may, although not necessarily, deduce that the action has been brought without reasonable ground.

56. The term "persistently" should be given its ordinary meaning. Whether the Court should find that the institution of what otherwise constitutes vexatious proceedings warrants the description of "persistently" comes down to a matter of judgment turning on questions of circumstance and degree.

57. As I have indicated, the plaintiff, in support of his application, relies upon, or at least refers to, proceedings not only in this Court but also in the District Court, before the Planning Appeal Tribunal and in the High Court of Australia. S39(6) extends the application of any reference in the section to "proceedings" to civil and criminal proceedings, whether instituted in this Court or "some other court of the State".

58. I do not think that even if proceedings were instituted in the Adelaide Registry of the High Court of Australia they should properly be regarded as proceedings instituted in a "court of the State". Neither do I think the proceedings in either the Residential Tenancies Tribunal or the Planning Appeal Tribunal can properly be so characterised.

59. For present purposes, I therefore exclude the proceedings which fall into those categories. That is with the qualification that reference to those other proceedings may legitimately be made if to do so helps to understand why certain proceedings were brought in this Court, or to explain, in the case of appeals to the High Court, what further events have transpired with respect to proceedings in this Court which have otherwise terminated.

60. Of course, if proceedings by way of appeal in the High Court resulted in an outcome which threw a different light upon the legitimacy of proceedings in this Court, that also would have to be a matter that should properly be taken into account in the process of determining whether proceedings in this Court were instituted "without reasonable ground".

The plaintiff's case on the facts

61. The plaintiff identifies five groups of actions brought by the defendant. They are:

1. Grievances against the University of Adelaide (Supreme Court action Nos 3166/84, 2367/85, 2398/86, 243/89, 634/90 and 885/90).

2. Actions against landlords or prospective landlords (District Court action No 3256/85, Supreme Court action No 2859/87 and Residential Tenancies Tribunal action No 3664/95).

3. An action against the Liberal Party (Supreme Court action No 445/96).

4. Development actions regarding land at one time owned by the defendant at Bellevue Heights (Planning Appeals Tribunal action No 145/90, Supreme Court action Nos 1606/90 and 1614/90).

5. Actions in the High Court (being action Nos A42/88, A3/90, A33/90 and A16/92). 62. For the reasons which I have already given, I disregard for present purposes the High Court actions, the proceedings in the Residential Tenancies Tribunal and the Planning Appeal Tribunal. I disregard also the actions referred to in category 4, as they were not relied upon by the plaintiff.

63. At some time the defendant was employed by the University of Adelaide ("the University") in work involving computer programming. His contract of employment was terminated by letter dated 11 July 1984 effective from 11 October 1984.

64. Ever since then he has brought a number of actions in this Court relating to his dismissal. As far as can be gathered from the pleadings, it appears that one grievance he has is that he asserts (contrary to the position taken by the University) that he is entitled to rights appropriate to academic tenure as opposed to employment as a member of the non-academic staff.

65. It also appears that he complains of the alleged termination by the University of his candidature for a higher degree.

66. Drawn into his actions against the University is the University of Adelaide Staff Association, against whom, it appears, that the defendant alleges that it has been guilty of some form of misrepresentation or otherwise has failed properly to act effectively on his behalf.

Burke v the University of Adelaide - Supreme Court action No 3166 of 1984

67. This was commenced on 16 October 1984 by the filing of an originating summons and supporting affidavits seeking discovery before suit from the University. On 29 October 1984 the defendant filed within the proceedings an application for an interlocutory injunction seeking an order compelling the University to maintain salary payments, to provide him with office accommodation and a key to enable him to access his former office and other facilities of the University, and to prevent the University from interfering "in any other way" with his general rights as a member of the University staff.

68. In my opinion, the making of the application for an interlocutory injunction was the institution of proceedings within the meaning of s39, as that application stood alone and quite distinct from the purposes for which the original action was commenced.

69. On 9 November 1984, according to a note in the file, there was a hearing before Prior J. Presumably that was with respect to one or both of the applications which were then before the Court. At all events, the note indicates that there was no appearance by the defendant, although the University appeared by counsel. No order was made.

70. I refrain from finding that the action, insofar as it was commenced by the originating summons issued on 16 October 1984, was instituted without reasonable ground. But I have no doubt that the application for an interlocutory injunction did constitute proceedings which were instituted without reasonable ground. I say that because, quite apart from any inference which might reasonably be drawn from the fact that it was never pursued by the defendant in all of the other actions brought by him with respect to the University, I have been unable to discern any proper ground upon which any such application could be entertained.

Burke v University of Adelaide and the University of Adelaide Staff Association - Supreme Court action No 2367 of 1985

71. This action was commenced by the filing of a writ and statement of claim on 12 July 1985. The statement of claim is difficult to understand. It is so verbose, and in some instances self-contradictory, that it is hard to discern just what allegations are being advanced in it, and to what end.

72. The defendant claimed in it "restitution" of his position and "special damages" against both the University and the Staff Association.

73. On 8 October 1985, Master Kelly ordered that the statement of claim be struck out, and granted the defendant time to file a further statement of claim.

74. On 15 October 1985, the defendant filed a notice of appeal against the orders of Master Kelly.

75. Within the same action, on 3 December 1985, the defendant filed a notice for further directions seeking a declaration that he was a full-time tenured member of the academic staff of the University and an order directing the University to exercise certain powers in respect of the defendant's application for entry to the Law School and access to the defendant's personal records. The notice for further directions obviously overlapped the relief sought in the statement of claim in the action, and possibly in the earlier action, being action 3166 of 1984.

76. On 4 December 1985, Master Kelly ordered a stay of the proceedings until the outcome of the defendant's appeal.

77. On 10 December 1985, the defendant filed a notice of appeal against Master Kelly's order on the basis that the Master had "no jurisdiction" to stay the defendant's application of 3 December 1985. Insofar as I am of the view that the notice of appeal was the institution of proceedings, it was instituted without reasonable ground. The Master clearly had jurisdiction to order a stay, and in all the circumstances it was clearly appropriate to stay the proceedings pending the hearing of the appeal.

78. On 13 February 1986, Bollen J dismissed the defendant's appeals against the orders of Master Kelly and granted the defendant time to file another statement of claim.

79. On 14 April 1986, the defendant filed a revised statement of claim.

80. This met the same fate as the first one, namely, an order that it be struck out. That order was made by Master Kelly on 26 June 1986. The basis upon which it was struck out was that it failed to disclose a cause of action.

81. A further appeal was brought against that order, namely, by notice of appeal dated 17 July 1986.

82. On 13 April 1987, Johnston J dismissed the defendant's appeal against the orders of Master Kelly and granted the defendant time to file yet another statement of claim.

83. On 17 June 1987, the defendant filed an application for leave to appeal against the orders of Johnston J.

84. Insofar as that application was the institution of fresh proceedings, it was, in my opinion, instituted without reasonable ground in that the statement of claim as it stood at that stage was virtually unintelligible and clearly failed to disclose a cause of action.

85. On 16 June 1988, the defendant filed an application seeking a number of orders, including leave to appeal against the orders of Johnston J of 13 April 1987.

86. On perusing the grounds set out, and in particular grounds 1 to 4 in that application, it appears to me that the defendant was really seeking to have Johnston J reconsider his decision of 13 April 1987. Given that Johnston J had dismissed the defendant's appeal, the only proper course open to the defendant was to appeal further. The application did not disclose any other reasonable ground for the relief sought in it.

87. Similar criticism may be made with respect to an application filed by the defendant on 16 June 1988 seeking a number of orders, including leave to appeal against the orders of Bollen J of 13 February 1986.

88. The defendant's applications of 17 June 1987 and 16 June 1988, together with applications by the University and the Staff Association, to strike out the writ issued on 12 July 1985, were heard by Master Burley on 9 December 1988. Master Burley dismissed the defendant's applications seeking leave to appeal to the Full Court, and ordered that the action as a whole be dismissed.

89. On 3 January 1989, the defendant filed a notice of appeal against the orders of Master Burley.

90. In my opinion, that notice of appeal, insofar as it constituted fresh proceedings, was instituted without reasonable ground in that the only statements of claim which had been filed up to that date were quite unintelligible and did not disclose a cause of action.

91. Notwithstanding the dismissal of the action as a whole, on 1 March 1989, the defendant filed an application for Master Kelly to reconsider his orders of 8 October 1985 and 26 June 1986.

92. That application must be considered as the institution of proceedings in the relevant sense, as the action as a whole had by then been struck out. For the same reason, the application was itself instituted without reasonable ground. In any event, it was dismissed by Master Kelly on 15 March 1989.

93. A subsequent notice of appeal against the order of Master Kelly was dismissed by Prior J on 2 May 1989.

94. On 17 May 1989, the defendant filed an application for leave to appeal against the orders of Prior J. On 10 July 1989, the court advised the defendant that leave to appeal was not required. On 15 September 1989, the defendant filed an application seeking an extension of time within which to appeal from the orders of Prior J.

95. On 20 October 1989, the defendant filed an application to consolidate this action and Supreme Court action No 3798 of 1986 and to join a number of defendants. Action No 3798 of 1986 had itself been dismissed in early 1987. Clearly, the application to consolidate the two actions was instituted without reasonable ground.

96. A similar application to consolidate two actions brought by the defendant, namely to consolidate this action with Supreme Court action No 243 of 1989 was brought on 6 November 1989 by the defendant. Again, that application was vexatious in that this action had been dismissed and remained dismissed, although there was an appeal pending to the Full Court against the orders of Master Burley dismissing it. The summons in action 243 of 1989 had been struck out by Master Kelly on 3 April 1989. Although the defendant had filed a notice of appeal on 12 April 1989, he failed to have the matter set down for hearing. There was no possible basis for consolidating the actions.

97. On 22 November 1989, Master Bowen Pain adjourned the defendant's applications then pending to 15 March 1990, and on that day, further to 26 July 1990.

98. On 23 March 1990, the defendant instituted an appeal against the orders of Master Bowen Pain.

99. The appeal, which was never determined, was, in my view, instituted without reasonable ground.

100. A whole wave of other applications was then brought by the defendant at various stages between 1 June 1990 and March 1995. It would be tedious and serve little purpose to detail them all. It is sufficient to say that none of them gave rise to a successful result from the defendant's point of view. They were all clearly without foundation.

101. On 2 November 1994, the Registrar directed for the purposes of Rule 102.09, that any summons, application or documents presented for filing by the defendant be referred either to himself or to the Deputy Registrar prior to being issued or accepted by the Registry.

102. On 23 March 1995, the defendant filed an application for leave pursuant to Rule 102.09 to file a notice of appeal against certain orders which had been made by Debelle J on 18 October 1994. On 6 April 1995, Judge Anderson directed that the Registrar receive from the defendant a notice of appeal that was limited to an appeal against certain orders but not others. On 13 April 1995, the defendant filed a notice of appeal against the orders of Judge Anderson. That notice of appeal was, in my view, filed without reasonable ground, and in any event, the notice of appeal was dismissed by Legoe J on 22 June 1995.

103. On 6 July 1995, the defendant filed a notice of appeal against acting Justice Legoe's orders. So far as I can see, that appeal has not been determined yet. It was, in my view, instituted without reasonable ground.

104. I should say that within this action, on 7 December 1989, an appeal came on for hearing before the Full Court, of which I was a member (King CJ and Cox J being other members of the Court) which was against the order of Master Burley striking out the action out. I delivered reasons, with which King CJ and Cox J concurred. In the course of those reasons, I said:

"The difficulty which the appellant has faced from the outset and which has resulted in the orders striking out the two Statements of Claim filed so far is that the various allegations made by the appellant in those documents have not only been couched in non-legal terms but have been expressed in a form which does not disclose a proper cause of action against either of the respondents. Further, both documents are so verbose and in many instances self-contradictory that the net result is that neither document discloses any legally recognisable claim against the respondents or provide a basis upon which any pleading by way of defence could be drawn up.

The appellant put before the Court on the hearing of the appeal a written outline of his argument, which he developed by way of oral submissions. I have considered all of the arguments and material which he put forward, together with the relevant documents on the Court file.

With respect to that part of the appeal which relates to the dismissal by Master Burley of the two applications filed by the appellant, the orders of Master Burley were inevitable. None of the material before him provided a proper basis upon which an extension of time could have been granted to appeal from the orders of Bollen J and Johnston J.

As to the appellant's appeal against the order made on the respondents' application to strike out the action, it will have been seen from my account of the history of the proceedings that the appellant has been given every opportunity to bring into Court a proper Statement of Claim. I am unable to detect any error in the reasoning of Master Burley which led him to dismiss the action. In all the circumstances that order was amply justified. The appellant has not demonstrated any ground upon which it would be proper to interfere with the order.

In my opinion the appeal should be dismissed." 105. The appeal to which those reasons relate was brought without reasonable ground.

106. Looking back at the mass of documents, almost all generated by the defendant, which comprise the files relating to this action, they can only be described as a farrago of disjoined, and in the main unintelligible, assertions which were repetitious, in many instances contradictory, and almost all characterised by futile attempts to breathe life into an action which had long since died by reason of the strike out orders.

107. While it is true that an unrepresented litigant should not be penalised for shortcomings in his or her understanding of the rules of court relating to the procedural conduct of actions, the defendant's conduct with respect to these proceedings goes much further than that. Constant failures by the defendant to bring in a statement of claim which gave even a glimmer of a sustainable cause of action, despite being given every opportunity by the court on a number of occasions to do so, must eventually be taken as indicative, not only of an inability to put together an acceptable pleading, but of a lack of reasonable cause in the institution of the proceedings in the first place.

108. My perusal of the voluminous files relating to this action serves only to demonstrate that both the institution of the proceedings and almost every step taken by the defendant within them was a waste of the time of everyone, including the Masters and Judges who became involved.

109. The commencement of the proceedings by the filing and service of the writ and statement of claim on 12 July 1985 was the institution of vexatious proceedings within the meaning of the rule. Every other step taken within the proceeding which can properly be characterised as the institution of proceedings for the purposes of s39, such as the various appeals, were likewise instituted vexatiously.

Burke v Bohines Pty Ltd - District Court action No 3256 of 1985

110. On 16 October 1985, the defendant lodged a notice of appeal against the orders of the Residential Tenancies Tribunal which had been made on 7 October 1985 determining the defendant's tenancy of premises known as apartment 37 situated at 21 Pulteney Street, Adelaide ("the Mansions") and ordering him to give up possession of the premises to the landlord. Apparently a twelve months residential tenancy agreement was entered into by Mr Burke and the then landlord in July 1981. That was renewed for various twelve month periods, the last renewal or extension being entered into on 1 August 1984, terminating on 1 August 1985.

111. The defendant wanted a further extension, but the Tribunal found that the landlord would not grant it, as it wished to renovate the apartments. The defendant was told he would have to leave by the middle of September 1985, or at the latest by the end of that month. The Tribunal member constituting the Residential Tenancies Tribunal gave short reasons for his order:

"It seems clear to me that there was an initial specific agreement for the tenancy to be extended until the middle of September 1985. This unfortunately is not a specific date, but I find that this expression can be interpreted as meaning 15 September 1985. Thereafter the landlord told the tenant that he must vacate by 30 September 1985.

I can find no evidence that the parties contemplated a periodic tenancy. The tenant wanted a more extensive fixed term and Mr Keimeier was prepared to grant and that is all." 112. He went on to hold that Mr Burke had not made out any case of hardship such as to warrant the exercise of any discretion in his favour pursuant to s33a of the Residential Tenancies Act.

113. It is true that the premises were handy to the University of Adelaide, but contrary to the defendant's evidence given before the Tribunal, his employment with the University had been terminated on 11 October 1984.

114. Furthermore, it was the defendant's own evidence that he had only entered into an agreement with the landlord that permitted him to remain at the premises until the middle of September 1985.

115. His appeal to the District Court resulted in short ex tempore reasons for judgment of Judge Burns delivered on 29 October 1985 which affirmed the decision of the Residential Tenancies Tribunal.

116. I accept the contention of Ms De Palma that the appeal was hopeless, and that it was instituted without reasonable ground, having regard to the matters to which I have referred.

The Queen v the Honourable Dame Roma Flinders Mitchell (as Visitor to the University of Adelaide), the University of Adelaide and the University of Adelaide Staff Association ex parte Philip Damian Burke - Supreme Court action No 3798 of 1986

117. This action was originally instituted on 3 December 1986 by the filing of an affidavit seeking an order nisi against the then Governor of the State of South Australia, Sir Donald Beaumont Dunstan in his capacity as Visitor to the University of Adelaide, the University of Adelaide and the University of Adelaide Staff Association.

118. The application was referred by a Master to a Judge for determination. It was refused by order made by Prior J on 16 January 1987. In short reasons, Prior J intimated that he refused the application for an order nisi on the basis that the issues sought to be pursued were issues which could be pursued in proceedings already before the court, including action No 2367 of 1985. The issues, insofar as they could be discerned from the initiating affidavit, sought orders relating to the applicant's alleged position on the staff, and secondly, relating to his application to the Law School of the University of Adelaide.

119. The proceedings then followed the tortuous course which is symptomatic of most of the litigation instituted by Mr Burke, eventually ending up before the Full Court on 3 October 1991. An ex tempore judgment was given by King CJ who presided (Mohr J and Zelling AJ concurring). During the course of his ex tempore reasons for dismissing the appeal, King CJ made the following observations:

"The application for the order nisi was refused by Prior J in January 1987. That disposed of the matter that was then before the court. The appellant applied subsequently in 1990 for an order that the matter proceed under the 1947 Rules of Court. That application was misconceived and was dismissed by Legoe J on 22 February 1991. The appellant then made application to amend his proceedings. The application for the amendment showed not only the original Visitor to the University, as a party, but also the University of Adelaide and the University of Adelaide Staff association.

The application sought an amendment of the proceedings by substituting the name of the present Visitor to the University in place of the former Visitor, as a party, and also leave to serve a summons for judicial review and also an injunction against the University. Matheson J refused all these applications on the ground that there was no live action, in the sense that the application for the order nisi had been refused in 1987.

This is an appeal against that decision. What the appellant is really seeking to do in the application which was before Matheson J is to substitute new parties in the form of the present Visitor to the University, the University of Adelaide itself and the University of Adelaide Staff Association in place of the original party to his application, namely the then Visitor to the University of Adelaide and to substitute fresh causes of action against those new parties.

This simply cannot be done in an action which was disposed of by the refusal of the order nisi for the order in the nature of mandamus. The application which was before Matheson J was, therefore, misconceived and this appeal and his refusal of the order sought was, therefore, entirely correct and this appeal is unsustainable. If the appellant has causes of action against the parties whom he now seeks to name, then those causes of action will have to be pursued by means of separate actions. I mean by that an action or actions distinct from the present action in which this appeal has been brought.

In my opinion, therefore, the appeal should be dismissed." 120. The brief reasons given by Prior J for his initial dismissal of the proceedings are plainly material upon which I should find, for present purposes, that at the very start of the proceedings they had been instituted without reasonable ground.

121. Having been dismissed, it is clear that the subsequent appeal which was referred to by King CJ in the passage which I have cited from his ex tempore reasons were likewise brought without reasonable ground.

Burke v Bohines Pty Ltd and the District Court of Adelaide - Supreme Court action No 2859 of 1987

122. This was an application taking the form of a summons for judicial review issued by the defendant on 26 November 1987 relating to District Court action No 3256 of 1985 to which I have already referred. The District Court action, of course, related to the defendant's former tenancy of an apartment in the Mansions in Pulteney Street. In effect, the defendant sought an order in the nature of certiorari quashing the order made on the appeal to the District Court. A Master (acting Master Boehm) directed that the summons and supporting affidavit be served on the former landlord, Bohines Pty Ltd, and the Crown Solicitor so that they could be heard on the question of leave to serve the proceedings.

123. The defendant filed a notice of appeal against the order of acting Master Boehm in that regard, that appeal being dismissed by Bollen J on 11 January 1988. Subsequently, Bollen J refused leave to appeal.

124. On16 February 1988, the defendant filed an application for leave to appeal to the Full Court from the decision of Bollen J. On 4 May 1988, the Full Court dismissed the defendant's application for leave to appeal.

125. On 22 August 1988, the defendant instituted an action in the High Court (A42 of 1988) seeking special leave to appeal against the orders of Bollen J.

126. On 24 August 1989, the High Court sitting in Adelaide (Mason CJ and Dawson and Gaudron JJ) refused to entertain the application for leave to appeal on the basis that it was not presented by counsel.

127. In June 1989, the defendant renewed his application for leave to serve the summons for judicial review, but leave was refused by Master Kelly on 12 June 1990 and the summons was at the same time struck out.

128. On 26 June 1990, the defendant filed a notice of appeal against the orders of Master Kelly, but as far as I can see, the appeal has never been proceeded with.

129. The initiating process, namely, the summons for judicial review issued on 26 November 1987, was clearly instituted without reasonable ground. The summons was filed more than two years after the judgment which it sought to attack. The application was a colourable attempt to appeal against the order of Judge Burns disposing of the earlier appeal to the District Court. The defendant was out of possession of the subject premises and had been for some long time. The facts relied upon by the defendant in his supporting affidavit, to the extent that any sense can be made of it, did not establish any conceivable grounds to support an order for judicial review.

130. In those circumstances the subsequent appeals which were against an order that the summons be served, if they could properly be characterised as the institution of proceedings, were clearly without reasonable ground. In this instance, however, I do not think that it would be right to characterise those appeals as the institution of proceedings, as they related only to a purely interlocutory order of acting Master Boehm.

131. For the reasons I have given earlier in this judgment, I do not take into account either the institution of the appeal to the High Court.

132. However, the institution of those appeals does serve to confirm the impression which a perusal of these various files indicates, that is a stubborn refusal to accept the finality of orders disposing of proceedings which he had instituted.

Burke v Garsden and Bodzioch - Supreme Court action No 243 of 1989

133. In this action the defendant on 7 February 1989 filed a summons and supporting affidavit naming the Registrar and Deputy Registrar of the Supreme Court as defendants. He sought, inter alia:

"1. A declaration as to the standards appropriate to the exercise of the Registry's discretion under Rule 84.10 and 84.15 ......

2. Damages for the injuries and damage incurred by the plaintiff for the misfeasance in public office (or breach of statutory duty or negligence), etc of the defendants and including exemplary or aggravated damages as filed in the supporting affidavits ....." 134. The supporting affidavit, which I do not pause to go into, revealed no ground upon which any of the orders sought could be made. On the defendant's application seeking leave to serve the summons, Master Kelly struck out the summons in its entirety. That order was made on 3 April 1989.

135. An appeal brought against that order was not set down in time and the Judge, on 12 March 1993, refused the defendant's application to extend the time within which the appeal might be set down.

136. By an application taken out on 26 March 1993, the defendant sought to "reapply for the extension to a justice and a plea to add the State of South Australia as a defendant and if necessary seek leave to appeal to the Full Court against the extension refusal with its associated limitations". That application was never brought on for hearing. Indeed, an administration decision appears to have been made that there was no ability to do so, given the finality of the previous orders made by Master Kelly and Debelle J.

137. The last step taken in the action was the filing of a notice of change of address of the defendant which was filed on 20 November 1995.

138. From the outset there was no proper foundation for the institution of these proceedings. They were issued without reasonable ground.

Burke v Faehrmann - Supreme Court action No 634 of 1990

139. In these proceedings, on 16 May 1990 Prior J allowed the defendant's appeal from a conviction for trespass entered in a court of summary jurisdiction sitting at Adelaide.

140. On 8 March 1991, some nine months later, the defendant filed an application for leave to appeal against "aspects of the judgment of Prior J" and for an extension of time within which to do so. On 10 May 1991, the Full Court refused the defendant's application of 8 March 1991.

141. Notwithstanding that, on 9 July 1993, the defendant again filed an application for leave to appeal against the orders of Prior J for an extension of time within which to do so.

142. In my opinion, the applications for leave to appeal brought in March 1991 and July 1993 were proceedings which were instituted without reasonable ground.

Burke v J.F. Keeler and Ors - Supreme Court action No 885 of 1990

143. The defendants to these proceedings included various members of the academic staff of the University of Adelaide, the University itself, three practising solicitors and Sir Donald Dunstan, the Governor of South Australia (in his capacity as Visitor to the University). The causes of action alleged appear to be defamation and negligence.

144. There are the usual difficulties in understanding the statement of claim, which runs to some sixteen pages, together with a 27 page attachment, being the report of the committee of inquiry established within the University of Adelaide in October 1982.

145. There have been a number of interlocutory proceedings down to April 1993. I do not pause to go into the detail of them. I fasten on two which, for present purposes, are more important than the others.

146. The first was a decision of Matheson J given ex tempore on 6 June 1991 when he upheld an order of the Master that insofar as the defendant sought judicial review of the decision of the then Governor, Sir Donald Dunstan, the statement of claim against him was correctly struck out.

147. The other decision is the decision of Master Bowen Pain given on 12 June 1992 in which he struck out the action itself as against three of the defendants, that is to say, three solicitors, Mr Vickery, Mr Morcombe and Ms Guarna. He also struck out the statement of claim as a whole, holding that "the form of the pleadings is such that it is almost impossible to plead to them".

148. Some of the paragraphs referred to in the reasons for judgment given by Master Bowen Pain were thought by him to be unintelligible, a view which I share. When the Master made his order striking out the statement of claim, he gave leave to the plaintiff within 28 days to apply for leave to file an amended statement of claim against the remaining defendants other than those against whom the action had been struck out. There has never been an application to file an amended statement of claim. However, the defendant has brought a number of applications endeavouring, in one way or another, to reverse the adverse decisions so far made against him in the action.

149. The fact that the action was peremptorily struck out as against the Governor and as against the three solicitors fortifies the view I hold that there was no proper ground for the bringing of the action against those defendants in the first place.

150. The situation is a little different with respect to the remaining defendants in that the defendant was given an opportunity to bring in an amended statement of claim as against them, but has failed to do so.

151. On carefully perusing the statement of claim which was filed, it appears that, apart from matters which appear to me to be in common with those which the defendant attempted to agitate in action No 2367 of 1985, the action pleads a case in defamation based upon the terms of the committee of inquiry report to which I have referred. My perusal of that report does not lend any support for the defendant's contention that it is actionably defamatory of him. Despite the fact that the proceedings were instituted in 1990, some seven years ago, the defendant has failed to bring in an intelligible statement of claim which discloses any cause of action which can be pursued against the remaining defendants.

152. In those circumstances, I would go one step further and hold that the action as a whole has not been brought on reasonable grounds as against all of the defendants.

Burke v The Liberal Party of Australia (SA Division) - Supreme Court action No 445 of 1996

153. This action was instituted by a summons issued on 16 February 1996. It arises out of an unsuccessful attempt by the defendant to secure nomination for pre-selection for the Federal seat of Boothby.

154. The defendant had been a member of a branch of the Liberal Party of Australia (SA Division) for many years. He put forward a nomination form on 23 September 1994 in which he named himself as a candidate for the Federal electorate of Boothby.

155. The nomination was not only submitted a week after the date upon which nominations closed, but it lacked the signatures of any financial members (four were required) as nominators.

156. In the proceedings, so far as can be understood from the manner in which the case was pleaded, he sought relief in the form of a declaration as to the "proper interpretation of aspects of the constitution" of the Liberal Party and that its decision to reject his nomination was "by denial of natural justice void" and significantly "that the purported outcome of the pre-selection process was in consequence or otherwise null and void". Another candidate had been pre-selected and was due to go to the polls in the Federal election which followed hard on the heels of my decision. In the reasons for judgment which I published I held that the nomination form was in no sense of the word a "nomination" "as it was not signed by anybody prepared to put the plaintiff forward as a person to be considered for pre-selection. It seems to me to be incontrovertible that the nomination form was properly rejected".

157. I went on to observe that the plaintiff's claim in the proceedings represented a last-minute attempt on the eve of the forthcoming general election to undermine the pre-selection process followed in Boothby.

158. An appeal to the Full Court was dismissed on 12 August 1996 by an ex tempore judgment (Debelle J, with whom Bollen and Prior JJ concurred).

159. There can be no question but that this action, including the appeal, was brought without reasonable ground. From the start, it had absolutely no prospect of success whatever. The timing of the action, long after the rejection of the purported nomination, was clearly indicative of an attempt to embarrass either the Liberal Party or the candidate which it had selected for the seat of Boothby in the 1996 general election.

Conclusions

160. It will have been seen that I have accepted that most of the proceedings in question were instituted without reasonable ground. The conclusion is inevitable that the defendant has persistently instituted vexatious proceedings within the meaning of s39(1).

161. Despite the length of these reasons, they do not serve to convey any real understanding of the very considerable and time-consuming application of scarce judicial resources in this and other courts which has been necessitated by the tortuous and convoluted passage of the proceedings instituted by the defendant. Making every allowance for the fact that Mr Burke has throughout been unrepresented and has obvious difficulties in coping with the exigencies of drawing up pleadings which give expression to his claims, my perusal of the papers in all of the actions relied upon by the plaintiff fail to provide even a glimmer of an arguable case.

162. Furthermore, the defendant has time and time again attempted by one means or another, invariably accompanied by considerable volumes of affidavit and other material, to circumvent orders which effectively terminated proceedings which he had instituted.

163. For over a decade, it seems likely that Mr Burke's existence has been consumed by an obsessional pursuit through the courts of grievances entertained by him, the main focus of which is the University of Adelaide, but which has from time to time been turned against a host of other respondents to his claims.

164. Standing back from the tangle of litigation which the defendant has spawned over the thirteen years since the first of the actions in question was brought in 1984, an extraordinary feature of it is that in no instance has there been a successful outcome in the sense of a positive result for the defendant. That circumstance tends to fortify my conclusion that in the main the proceedings have been brought without reasonable ground.

165. The Court does not lightly shut its doors against a litigant, or even restrain a litigant's access to the justice system. I am reminded of the observations of Kirby J in Re Attorney-General of the Commonwealth and Anor ex parte Skyring:

"First it is always important for every judge to keep an open mind in case a person who has been rejected by courts in the past may have, hidden among the verbiage of his or her arguments, a point which has not been previously seen and which may have merit. Vigilance and not impatience are specially required where that person is not legally represented.

Secondly, it is regarded as a serious thing in this country to keep a person out of the courts. The rule of law requires that ordinarily a person should have access to the courts in order to invoke their jurisdiction. It is a rare thing to declare a person a vexatious litigant." 166. But it seems to me, giving full weight to those considerations, that the stage has well and truly been reached with respect to Mr Burke when in the exercise of its discretion the Court should make an order in the terms sought in these proceedings.

167. I bear in mind that procedures such as those embodied in s39 are designed to reinforce "... the power of the court to protect its own process against unwarranted usurpation of its time and resources and to avoid the loss caused to those who have to face actions which lack any substance".

168. It follows then that, having regard to my finding that the defendant has persistently instituted vexatious proceedings within the meaning of s39(1) of the Supreme Court Act, I should exercise my discretion both to prohibit him from instituting further proceedings of any kind without leave of the court, and further staying all of the proceedings which I have found to have been instituted without reasonable cause.

169. I realise that it may seem strange to make an order staying proceedings which in some instances have been terminated by orders of dismissal or striking out. But the history of the proceedings in question demonstrate that the defendant is quite unable to accept the finality of such orders, and persists in bringing further applications or other attempts, in one guise or another, to breathe new life into such actions.

170. The formal order which I propose, as to which I will hear the parties before proceeding to pronounce it, is as follows:

Order:

1. Prohibiting the defendant from instituting further proceedings without leave of this Court.

2. Staying the following proceedings in this Court, namely:

Action No 2367 of 1985 Action No 3256 of 1985 Action No 3798 of 1986 Action No 2859 of 1987 Action No 243 of 1989 Action No 634 of 1990 Action No 885 of 1990 Action No 445 of 1996

until further order.

3. That a copy of this order, together with a copy of these reasons, be served on the Registrar of the District Court, the Registrar of the Magistrates Court, and the solicitors on the record for the other parties to the proceedings which I have stayed. 171. I will hear the parties as to costs.