Attorney-General for the State of Victoria v Kay

[2006] VSC 11

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6562 of 1998

ATTORNEY GENERAL FOR THE STATE OF VICTORIA	Plaintiff
v
IAN KAY	Defendant

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JUDGE:	OSBORN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 JANUARY 2006
DATE OF JUDGMENT:	27 JANUARY 2006
CASE MAY BE CITED AS:	ATTORNEY GENERAL FOR THE STATE OF VICTORIA v KAY
MEDIUM NEUTRAL CITATION:	[2006] VSC 11

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Application consequent upon dismissal of application by vexatious litigant – s.21(5) Supreme Court Act 1986 – Oral application for variation of existing order restraining vexatious litigant refused.

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APPEARANCES:	Counsel	Solicitors
For the Defendant/Applicant	In person
For the Plaintiff/Respondent	Ms E Gardner	Victorian Government Solicitor

HIS HONOUR:

1. Upon the further hearing of this matter Ms Gardner has submitted on behalf of the Attorney-General that the Court should make an order restraining the defendant from the making of further applications pursuant to s.21(5) of the Supreme Court Act 1986 ("the Act") save pursuant to leave granted on the papers by a Judge of this Court. That submission is supported by a careful written analysis of the relevant legislation and authorities.

1. It is put in the first instance that such an order can be made on application of the Attorney-General pursuant to s.21(5) of the Act for a variation of the existing order made under s.21(2). It is submitted such an order would fall within the ambit of the matters referred to in s.21(3).

1. In the alternative it is submitted that the order may be made pursuant to the inherent jurisdiction of the Court[1].

   [1]See: Commonwealth Trading Bank v Inglis [1974] 131 CLR 311, Bhamjee v Forsdick & ors [2004] 1 WRL 88, Guss v Magistrates' Court of Victoria & anor [1998] 2 VR 106, Wentworth v Graham & anor [2003] NSWCA 307, 23 October 2003, Wentworth v Graham & anor (2003) 57 NSWLR 741.

1. I have on reflection concluded that I should not make such an order in conjunction with the dismissal the application made by the defendant to me in accordance with my judgment of 23 January 2006.

(a) No application was made by the Attorney-General until after the issue was raised by me in my judgment of 23 January 2006 and oral application was made on 25 January 2006. An application by a person nominated in the section is a pre-requisite to a valid order pursuant to s.21(5) of the Act[2].  Such application must be certain in terms and should desirably (if not necessarily) be commenced by summons.

[2]Cf. Commonwealth Trading Bank v Inglis at 318

(b)      While there is authority that the Court can, and on one view should in appropriate circumstances, itself invoke its inherent jurisdiction when confronted with an ongoing abuse of its process[3], the invocation of s.21(5) requires an application in proper form. Further, the ambit of the Court's inherent powers may affected by the statutory provisions.[4] If the Attorney-General concludes that in the first instance the appropriate basis for resolution of the matters in issue is an application for variation of the exiting order pursuant to s.21(5) then the matter should proceed on that basis.

[3]In Bhamjee v Forsdick & ors [2004] 1 WRL 88 at 97, the Master of the Rolls stated:

"The salient features of the traditional Grepe v Loam order were that:

(i) it could be made by any judge of any court of his own motion. The jurisdiction was not vested in the Divisional Court of the Queen's Bench Division alone, and the Attorney General did not have to be involved.  (ii)The order barred the litigant in question from making any further applications in the matter without first obtaining the leave of the court.  (iii) If an application were made without the leave of the court being obtained, there was no need for the other side to attend, and the application would be dismissed without being heard.  (iv) The order was susceptible to appeal, if permission to appeal was granted.  (v) The order was not published in the 'London Gazette'."

[4]Commonwealth Trading Bank v Inglis [1974] 131 CLR 311 at 318

(c)       Although the defendant was notified of today's adjourned hearing by express mail on the evening of Monday 23 January 2006, the oral application now made raises an issue which was not articulated at the time of hearing of the defendant's application before me.  A serious question of procedural fairness arises as to whether given the defendant's absence on both Monday last and today the Court should entertain the Attorney-General's application which effectively transforms the issues before it.  (Albeit in response to the terms of the judgement I delivered on Monday last.)

(d)      The defendant is an unrepresented litigant and the order sought has potentially serious consequences for him.  These matters reinforce the Court's concerns with respect to procedural fairness.

(e)       Although founded on the specific history of the defendant's applications the form of order now in issue seeks to address a question of general importance and it is essential that it be properly articulated and identified as such.  The issue was described in Bhamjee v Forsdick in the following terms:

"In short, the courts are facing very serious contemporary problems created by the activities of litigants like Mr Bhamjee who are bombarding them with applications which have no merit at all. Many of these litigants have no fees disincentive because they automatically qualify for fees exemption. The problem created by these hopeless applications is not only a serious financial one, for the reasons set out [2003] EWCA Civ 799 at [25].

It is also that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all. A further problem is created by the fact that these litigants are often without the means to pay any costs orders made against them, and the parties in whose favour such costs orders are made are disinclined to throw good money after bad by making them bankrupt, particularly as the vexatious conduct may spill over into the bankruptcy proceedings themselves.

We must stress that in many, if not most, of these cases the litigant in question has been seriously hurt by something that has happened to him in the past. He feels that he has been unfairly treated, and he cannot understand it when the courts are unwilling to give him the redress he seeks. Judges must, as always, listen to his case carefully and be astute to see whether there is any point of legal merit in what he is saying to them. And if they are unable to help him, they must give their reasons clearly, in language he will understand. In most cases, particularly after an unsuccessful appeal has been handled in the same way, that will be the end of the matter so far as the courts are concerned, even if the litigant's sense of unfair treatment will often linger on. But in a tiny minority of cases he will not take "no" for an answer. He may start collateral litigation about the same subject matter. He may sue the judge. He may sue the lawyers on the other side. He may bombard the court in the same case with further applications and appeals. He may sue the Lord Chancellor, or the Home Secretary, or some other public authority whom he thinks may be legally liable for his misfortune. The recital of the facts by Brooke LJ [2003] EWCA Civ 799 at [2]-[17] contains a few of these features. It is with this very small category of litigants that this judgment is concerned.

This case is an important one because, when viewed from the perspective of its effect on the Court of Appeal alone, the nuisance which these activities represent for the judges, lawyers and staff of this court does not directly impinge on the other parties to the litigation in question. In Mr Bhamjee's case, for instance, the reason is that in each of the seven unmeritorious applications he has made to the court in the last three years the court has refused to grant him permission to appeal, so that the proposed respondents have not been "vexed" by having to incur the expense of responding to a hopeless appeal."[5]

[5]at 91-92

1. For all the above reasons I propose to make no further substantive order beyond dismissing the defendant's application on summons in accordance with my judgment of 23 January 2006.  If the Attorney-General desires to take the question of a further formal order forward then it will be necessary for a formal application to be made to the Court.

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