Attorney-General for the State of Victoria v Kay

[2006] VSC 9

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:	16 JANUARY 2006
DATE OF JUDGMENT:	23 JANUARY 2006
CASE MAY BE CITED AS:	ATTORNEY GENERAL FOR THE STATE OF VICTORIA v KAY
MEDIUM NEUTRAL CITATION:	[2006] VSC 9

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Application by vexatious litigant - Application for procedural directions – Repeat applications – Evidence sought irrelevant to substantive application under s.21(5) of the Supreme Court Act 1986 – Application an abuse of Court – Application 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. By summons dated 20 November 2005 the applicant seeks relief in discursive form. 

1. The applicant is a vexatious litigant who is as he himself confesses angry at his status.  His history as a litigant also demonstrates an obsessive concern to revisit the merits of litigation in which he was unsuccessful and which he believes resulted in injustice.

1. The heading of the summons is: “The applicant seeks leave of the court to remove the vexatious litigant tag he wears.”  The summons then states:

“TAKE NOTICE  that the Applicant, approaches the Supreme Court re the above, to enable him to prove that he is not vexatious and to remove the vexatious litigant he wears, which is denying him natural justice.”

1. There follows the following statement:

“The grounds on which the Applicant relies upon are;

That the courts accept that the documents and particulars he requests, re a compensation payment made to his ex-wife, Ms McIntosh, and his children by V.O.C.A.T.[1] be made available to him to prove that he is not vexatious, and that contemptible legal tactics lies and perjury have not only goaled him, but have also denied him any contact with his children for over 13 years, and poisoned their minds against him.

He be able to cross-examine witnesses he subpoenas under oath, for him to be able to prove he is not vexatious, and his claims he is a victim of gross injustice, lies and perjury and contemptible legal tactics.”

Thereafter follow what I understand to be points of submission as to these two primary claims. 

[1]The Victims of Crime Assistance Tribunal

1. At the outset of his application before me the applicant made it clear that he does not make application pursuant to s 21 (5) of the Supreme Court Act 1986 at this point in time. He seeks orders in effect for two preliminary procedural steps in order to facilitate such an application.

(a)       He seeks the production of documentation; and

(b)He seeks an order that he be able to subpoena witnesses for cross examination under oath.

1. In my view both applications must fail.  Both are in substance repeat applications.  Unsuccessful application was made to Hansen J for production of the documents sought in October last year and refused by him on 28 October 2005.  Application was made for leave to subpoena and cross-examine witnesses of Mr Kay’s choice first to Byrne J in September 2005 and then the Hansen J in October 2005.  Both applications were refused. [2]

   [2]Attorney-General for the State of Victoria v Kay [2005] VSC 349 and Attorney-General for the State of Victoria v Kay [2005] VSC 426 respectively.

1. The applications before me should likewise be refused. They are devoid of merit for the reasons previously identified by their Honours including the fundamental consideration that they are not founded upon the identification of any evidence which could potentially be relevant to the proper basis of an application pursuant to s 21 (5).

1. This is fundamentally because as Chernov JA observed in Kay v Attorney-General for the State of Victoria[3] s.21(5):

"… is confined in its operation to cases where there has been a change in the relevant circumstances since the making of the original order such as to make it appropriate that the order be varied, set aside or revoked."

[3](2000) 2 VR 436 at 444 [23] with whom Ormiston and Batt JJA agreed

1. I would add with respect to the documents sought from VOCAT that s.65 of the Victims of Crimes Assistance Act 1996 presents another significant hurdle to the application.  There is no material before the Court which could justify an order pursuant to s.65(2).

1. In addition both applications constitute a serious abuse of the process of the Court. 

(a)They are repeat applications made in the context of a seventh application pursuant to s.21(5) and in the face of decisions on the points in issue contrary to the applicant which were not appealed and in the absence of any material change of circumstances;

(b)They are supported by an affidavit which I strike out pursuant to R.27.07  as scandalous, irrelevant and oppressive, it being argumentative, abusive, contemptuous of this court, and devoid of any material of probative relevance.  I will not dignify the document by setting out its contents but I will direct that it remain on the file.

(c)They confirm the attitude identified by Byrne J in words expressly adopted by Hansen J last year:

"...Mr Kay’s steadfast refusal to accept that this application is not about the correctness of the order of February 1999 nor of the orders which preceded this order, is an indication that he will, if not restrained, bring proceedings which are not based on any legal principle and which can achieve nothing other than the harassment of the parties named as defendants and the needless waste of legal costs and court resources."[4]

(d)They were introduced by the applicant before me by an inquiry as to whether I had dealt with matters concerning him previously.  The expressed attitude of the applicant was that there was no point in him making application to a judge who had previously dealt with his matters but that he wished to vent his grievances to other judges.  This attitude presents a particular problem to the Court by reason of the rotation of judges through the Practice Court.  The applicant has no right to have the same issues continually re-agitated before a sequence of judges of this Court.

(e)In the course of argument the applicant threatened the respondent Attorney-General with continuing cost until he achieved his ends.  He boasted of the cost that he had already inflicted upon the State of Victoria.  It is apparent that the repeat applications are being made in part for an ulterior motive which is improper namely that the applicant believes that the imposition of disproportionate costs upon the respondent may some how bring about a review of his situation.

[4]Attorney-General for the State of Victoria v Kay [2005] VSC 349 at [10]. Attorney-General for the State of Victoria v Kay [2005] VSC 426 at [20].

1. In my view the point has been reached not only where the summons should be dismissed but that a Grepe v Loam[5] order of the type contemplated in Bhamjee v Forsdyke[6], must be considered.  Such an order would prohibit the issue of further applications within this proceeding without the permission of a Judge of this Court.

   [5](1887) 37 Ch D 168

   [6](2004) 1 WLR 88

1. I propose to provide the applicant with a copy of the decision in Bhamjee v Forsdyke.  I will hear submissions as to the appropriateness of a Grepe v Loam order either tomorrow or on Wednesday.  I would be assisted if at that time counsel for the Attorney could address not only the potential utility (if any) of such an order, but also the proper ambit of such an order having regard to the decision of the High Court in Commonwealth Trading Bank of Australia v Inglis[7].

   [7](1974) 131 CLR 311

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