Attorney-General for the State of Victoria v Weston

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7711 of 2001

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Plaintiff
V
MICHAEL WESTON	Defendant

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9, 15 and 16 June 2004
DATE OF JUDGMENT:	27 August 2004
CASE MAY BE CITED AS:	Attorney-General for the State of Victoria v Weston
MEDIUM NEUTRAL CITATION:	[2004] VSC 314

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PRACTICE AND PROCEDURE – Vexatious litigant – Application to restrain – Requirements – Whether proceedings ‘vexatious’ – Whether ‘habitually and persistently’ instituted – Supreme Court Act 1986, s 21 – Kay v Attorney-General (2000) 2 VR 436; Attorney-General v Collier [2001] NZAR 137; Attorney-General v Michael [1999] WASCA 181; Attorney-General v Wentworth (1988) 14 NSWLR 481; Brogden v Attorney-General [2001] NZAR 809, [2001] NZCA 208.

PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence new proceeding – Application to excise proposed proceeding from declaration that defendant is vexatious litigant – Proceeding to set aside earlier judgment on the basis of fraud – Application refused – Supreme Court Act 1986, s 21 – Commonwealth Bank of Australia v Quade (1991) 178 CLR 134.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Masel	Victorian Government Solicitor
The Defendant appeared in person

TABLE [L1]OF CONTENTS

Introduction......................................................................................................................................... 2

Material relied upon.......................................................................................................................... 2

Applicable legal principles............................................................................................................... 3

Instituting proceedings................................................................................................................ 4
Vexatious proceedings................................................................................................................. 6
Habitually and persistently......................................................................................................... 8
Without any reasonable ground................................................................................................. 8

Summary of legal principles............................................................................................................ 9

Relevant sequence of events.......................................................................................................... 10

The beginning: 1989 – 1991........................................................................................................ 10
Incidents on 6 and 7 February 1992.......................................................................................... 15
January to September 1992........................................................................................................ 15
25 September 1992....................................................................................................................... 17
Late 1992....................................................................................................................................... 19
1993................................................................................................................................................ 23
1994................................................................................................................................................ 25
1995................................................................................................................................................ 29
1996................................................................................................................................................ 31
1997................................................................................................................................................ 35
1998................................................................................................................................................ 41
1999................................................................................................................................................ 45
2000................................................................................................................................................ 46
2001................................................................................................................................................ 47
2002................................................................................................................................................ 50

The vexatious nature of the relevant proceedings..................................................................... 54

Other matters arising during the hearing.................................................................................... 56

Have the requirements of section 21 been met?......................................................................... 58

Should the order be made?............................................................................................................ 58

The foreshadowed new proceeding............................................................................................. 59

Orders................................................................................................................................................. 64

Annexure............................................................................................................................................ 66

Table of Proceedings involving Mr Weston........................................................................... 66

HIS HONOUR:

Introduction

The Attorney-General for the State of Victoria (“the Attorney-General”) commenced this proceeding by Originating Motion filed 25 September 2001. That Originating Motion sought an order, pursuant to s 21 of the Supreme Court Act 1986, declaring the defendant to be a vexatious litigant, an order that the defendant must not without leave commence or continue legal proceedings, and an interlocutory injunction restraining the defendant, pending the hearing and determination of the action, from continuing or commencing legal proceedings. A summons in the proceeding seeking similar relief was issued the same day.

On 4 October 2001, Mr Weston gave an undertaking to the Court, the effect of which was that, subject to certain exceptions, he would not without leave commence or continue any relevant legal proceedings until the determination of the Attorney-General's application. By a summons filed 20 May 2004 Mr Weston has sought to be released from that undertaking, among other things.

The undertaking will not continue beyond the determination of the Originating Motion. If the orders sought by the Attorney-General are made, Mr Weston will be restrained by those orders, not by his undertaking. If no orders are made, the undertaking will not inhibit him any further. Mr Weston’s primary submission was that no orders should be made. He did, however, also advance submissions directed towards persuading me that if orders are made he should be permitted to commence a further proceeding in this Court. This might be done by either excluding the foreshadowed proceeding from any order, or by giving leave to issue the foreshadowed proceeding pursuant to any order made.

Material relied upon

The Attorney-General relies upon a series of affidavits sworn by a solicitor from the Victorian Government Solicitor’s office, Mr Hugh McArdle. The affidavits so relied upon are two affidavits sworn 25 September 2001, and affidavits sworn on 12 November 2001, 20 February 2002, 8 March 2002, 18 May 2004, 3 June 2004 and 16 June 2004. Mr Weston relies upon a series of affidavits sworn by him. Those affidavits were sworn on 26 October 2001, 12 November 2001, 15 February 2002, 19 February 2002, 13 March 2002, 5 April 2002, 15 July 2002, 20 May 2004 and 15 June 2004.

In large part, the affidavits relied upon by the Attorney-General produce documents relating to proceedings involving Mr Weston, commencing in 1989. All of the proceedings in question are related either directly or indirectly to disputes between Mr Weston on the one hand and the Council and officers of the Shire of Rutherglen on the other. The affidavits relied upon by the Attorney-General and the written submissions handed to me at the hearing on behalf of the Attorney-General refer to the various relevant proceedings by allocating them numbers from 1 to 28. In oral submissions the various proceedings were referred to by use of those numbers. In this judgment I will use the Attorney-General’s numbering system. Annexed to this judgment is a table setting out the various proceedings and the number given to that proceeding by the Attorney-General. The Attorney-General did not submit that every enumerated proceeding was vexatious. My use of the Attorney-General’s numbering system does not mean that I accept that every number represents a relevantly distinct and separate proceeding.

Applicable legal principles

Section 21 of the Supreme Court Act 1986 relevantly provides:

“(1)The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant.
(2)The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has—
(a)habitually; and
(b)persistently; and
(c)without any reasonable ground—

instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.
. . . ”

An order under s 21 interferes with the basic right of access to the courts. It is a remedy of an extreme nature with serious implications and must be approached accordingly.[1] A clear and compelling case must be shown to warrant such a remedy.
[1]Attorney General v Wentworth (1988) 14 NSWLR 481 at 484.

It is necessary first to determine whether the requirements of the section have been made out, and then to consider whether the order ought to be made. The section’s requirements are that proceedings have been instituted, which are vexatious; and that that has been done habitually and persistently, and without any reasonable grounds.

Instituting proceedings

One of the section’s requirements is that the person has “instituted . . . proceedings” of the specified character in the Court, defined as the Supreme Court, an inferior court, or a tribunal. Proceedings instituted in Federal Courts and in other States do not fall with the ambit of s 21.

Clearly the filing of an originating process constitutes the institution of a proceeding, but how much wider is the concept? A commonly cited discussion of what constitutes the institution of a proceeding is that of Yeldham J where he said:

“While it is probably correct to say that interlocutory proceedings taken in the course of an action instituted by another person which is still current are not within the section, I think, without endeavouring to supply an exhaustive definition, that, where a final decision has been given, any attempt, whether by way of appeal or application to set it aside, or to set aside proceedings taken to enforce such decision, which is in substance an attempt to re-litigate what has already been decided, is the institution of legal proceedings. It is to the substance of the matter that regard must be had and not to its form.”[2]

[2]Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488. The passage, or relevant parts of it, has been cited and adopted by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 491-492, by the Full Court of the Supreme Court of Western Australia in Attorney-General v Michael [1999] WASCA 181 at [13]- [14], and by Ashley J in Attorney-General v Horvath, senior [2001] VSC 269 at [18]-[23].

The Attorney-General relied upon this passage. The Attorney-General also submitted that a counterclaim constituted the institution of legal proceedings, citing Attorney-General v Jones[3] and Attorney-General for the State of Victoria v Horvath, senior;[4] as did the institution of an appeal, citing (in addition to the Yeldham J dicta) Mephistopheles Debt Collection Services v Lotay[5] and Attorney-General for the State of Victoria v Horvath, senior. Mr Weston made no submission on this issue.
[3][1990] 2 All ER 636 at 637.
[4][2001] VSC 269.
[5][1994] 1 WLR 1064.

I have also had regard to Chernov JA’s observations in Kay v Attorney-General[6] in relation to appeals, to Kellam J’s approach to interlocutory applications in Attorney-General v Lindsey,[7] and to the treatment of interlocutory applications by the Full Court of the High Court of New Zealand in Attorney-General v Collier.[8]
[6](2000) 2 VR 436 at 446.
[7]Unreported, Supreme Court of Victoria, Kellam J, 16 July 1998.
[8][2001] NZAR 137 at [31].

The conclusions that I draw from these authorities are that a person institutes a proceeding for the purposes of s 21 when he or she files an originating process, and also where he or she:

(1) makes a counterclaim in a proceeding,
(2) appeals from a final determination in a proceeding, or
(3)seeks to set aside a determination in a manner which is in substance an attempt to appeal or re-litigate a matter otherwise finally determined.

Interlocutory applications, and appeals on such applications, do not, in the ordinary case, constitute the institution of a proceeding. Where interlocutory applications are in substance an attempt to appeal or re-litigate a matter otherwise finally determined, they fall within the third category above and are to be considered the institution of proceedings.
Vexatious proceedings

Whether a proceeding is vexatious is to be objectively determined as a question of fact. The test is whether the proceedings themselves are vexatious, not whether they were instituted vexatiously.[9] With one qualification, I adopt the categorisation of Roden J in Attorney-General v Wentworth,[10] where he described proceedings as vexatious if:

(1)they are instituted with the intention of annoying or embarrassing the person against whom they are brought; or
(2)they are brought for collateral purposes, and not for the purpose of having the court adjudicate on the issues to which they give rise; or
(3)irrespective of the motive of the litigant, they are so obviously untenable or manifestly groundless as to be utterly hopeless.

[9]Re Vernazza [1960] 1 QB 197 at 208 per Ormerod LJ.

[10](1988) 14 NSWLR 481 at 491.

The category of proceedings that are vexatious because they are hopeless was discussed by the Full Court of the Supreme Court of Western Australia in Attorney-General v Michael.[11] Anderson J, in the leading judgment, said that proceedings brought without bad faith need not be plainly devoid of any merit whatsoever in order to be considered vexatious. He said:

“The litigant who sees dark conspiracies and the threat of great harm to himself or herself in the trivial wrongs of another may provide an example. The commencement of an action by such a person, containing outlandish allegations and seeking forms of relief that the courts do not grant, may be vexatious, notwithstanding that it may be possible for the court to identify for the litigant a cause of action for which, arguably, there may be some form of remedy. In this case … [w]hilst it is not possible to say that the claim … is ‘utterly hopeless’, the allegations as to that, and the relief sought in respect of it, are so deeply buried in bizarre allegations and untenable claims for relief that the court ought to be able to say, as a matter of judgment, that it is a vexatious proceeding within the meaning of the section.”[12]

I agree with this qualification to, or amplification of, Roden J’s formulation. I am also mindful of the fact that meritorious claims can be hidden in verbiage, particularly where a claimant is unrepresented.[13] As will be seen, however, the question of whether the amplification or qualification referred to in Attorney-General v Michael should apply does not arise in considering the proceedings that are the subject of this application.

[11][1999] WASCA 181.

[12][1999] WASCA 181 at [126]. See also Attorney-General v Collier [2001] NZAR 137 at [35].

[13]Re Attorney-General (Cth); ex parte Skyring (1996) 70 ALJR 321 at 323 per Kirby J.

In Kay v Attorney-General,[14] the Court of Appeal made it clear that in considering the character of relevant proceedings it is not necessary for the Court to re-examine the circumstances of each proceeding relied upon. The character of the proceeding should be apparent upon a reading of the reasons and orders.[15]
[14](2000) 2 VR 436.
[15]Kay v Attorney-General (2000) 2 VR 436 at 437 per Ormiston JA.

The Full Court of the High Court of New Zealand said in Attorney General v Collier:[16]

“The fact that a plaintiff fails in litigation does not demonstrate that the proceedings are vexatious, it is necessary to examine the reasons given in the judgment to determine whether the proceedings are properly to be characterised in that way. Although in many cases it may not be possible to decide whether litigation is wholly without merit until it is determined, a successful strike-out application by the defendant, at least where not based upon technical points . . . may be reliable evidence in the circumstances of vexatiousness.”

[16][2001] NZAR 137 at [40].

In the absence of bad faith or improper purpose, the proper approach is to assess whether the proceeding was utterly hopeless. The reasons given and other observations made by a court upon the substantive determination of the proceeding may reveal vexatiousness in this sense, as may a successful strike-out application.

The fact that a proceeding is utterly hopeless may not be apparent until a trial of the issues. The complete absence of any evidential basis for allegations pleaded, for example, will not be apparent on a strike-out application. A proceeding may be vexatious even if it was not or would not be struck out.[17]
[17]I do not take the Full Court’s decision in Gallo v The Honourable Attorney-General, unreported, Full Court of the Supreme Court of Victoria, Starke, Crockett and Beach JJ, 4 September 1984, as laying down any contrary or inconsistent proposition.

Habitually and persistently

In Attorney-General v Wentworth, Roden J interpreted these requirements as follows:

“ ‘Habitually’ suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; ‘persistently’ suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness.”[18]

This approach was adopted by Kellam J in Attorney-General v Lindsey,[19] and by Eames J in Attorney-General for the State of Victoria v Kay.[20] I also adopt it, again with one qualification or amplification.

[18](1988) 14 NSWLR 481 at 492.

[19]Attorney-General v Lindsey, unreported, Supreme Court of Victoria, Kellam J, 16 July 1998.

[20]Attorney-Generalfor the State of Victoria v Kay [1999] VSC 30.

The qualification or amplification is that set out in Brogden v Attorney-General,[21] a decision of the New Zealand Court of Appeal, in relation to the term “persistently”. The Court said:

“A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed.”[22]
[21][2001] NZAR 809; [2001] NZCA 208.
[22][2001] NZCA 208 at [21]. See also Attorney-General v Collier [2001] NZAR 137 at [36] and [56].

Without any reasonable ground

The requirement that proceedings also be instituted without any reasonable ground is necessarily satisfied if the proceedings are utterly hopeless. It seems to me that Toohey J was correct in identifying an element of tautology in the provisions.[23] This requirement will have an independent operation if the proceedings are considered vexatious on a basis other than their hopelessness. In that instance, the fact that the plaintiff followed independent legal advice in bringing a claim may be relevant.[24]
[23]Jones v Skyring (1992) 109 ALR 303 at 309; (1992) 66 ALJR 810 at 813.
[24]See Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492-493.

Summary of legal principles

It seems to me that the applicable legal principles may be summarised as follows:

(1)The application seeks a remedy of a most serious nature and a clear and compelling case must be shown to warrant it.
(2)The requirements of the section are that the person must have
• instituted proceedings
• which are vexatious
•and to have done so habitually and persistently and without reasonable cause.

If the requirements are met, the Court must then consider whether an order ought to be made.
(3)A proceeding is “instituted” where originating process is filed, and also where a person counterclaims, appeals against an otherwise final determination of the substantive matter, or applies to have an otherwise final determination set aside. Interlocutory applications and appeals on interlocutory applications do not ordinarily constitute the institution of proceedings.
(4)Vexatious proceedings are proceedings which have either been brought for an improper purpose, or which have been revealed to be hopeless. Hopelessness ought to be apparent from the ultimate disposition. A genuine claim, or element of a claim, may exist within a vexatious proceeding, where it is deeply buried in untenable claims and bizarre allegations.
(5)Vexatious proceedings are instituted “habitually” where they appear to be commenced as a matter of course. “Persistence” suggests determination and an element of stubbornness. An absence of reasonable grounds will necessarily be the position where the proceedings have been revealed to be hopeless.
(6)If the requirements of the section are met, the person’s conduct as a whole must be then assessed to determine if, in all the circumstances, an order ought to be made.

Relevant sequence of events

Mr Weston has been involved in a significant quantity of litigation over the past 15 years. In order to assess the proceedings he has instituted it is necessary to review that litigation chronologically, and then to identify and assess each proceeding he has instituted in the context in which it arose. Consistently with the legal principles I have set out, I will assess each proceeding upon its ultimate disposition.

The beginning: 1989 – 1991

Michael Weston was the owner of a farm on the Murray River in the Shire of Rutherglen in Victoria named “Norong Park”. It was not the only farming property on which he worked and in which he was interested. In the middle of 1989[25] Mr Weston and his wife, Patricia Mary Weston, filed a claim in the Planning Division of the Administrative Appeals Tribunal under the Drainage of Land Act 1975 against the President, Councillors and Ratepayers of the Shire of Rutherglen.[26] Mr and Mrs Weston had a firm of solicitors acting for them named Dawes & Vary. Mr Adams of that firm had carriage of the matter. The claim against the Shire was based on nuisance and negligence and it sought orders restraining the Shire from diverting water on to the claimant’s land, orders directing the Shire to fill in certain drains, a permanent injunction, damages, and interest. The claimants, Mr and Mrs Weston, sought an order for costs against the Shire. The damages claimed were $13,500, with general damages also claimed.
[25]The claim document is dated 6 June 1989, but there is no indication in the material of when the claim was in fact filed. Mr Weston told me in submissions that the claim was issued in July 1989: Transcript 154.
[26]HM-1. In these footnotes, references “HM” or “HMcA” refer to exhibits to Mr McArdle’s affidavits, and references “MW” refer to exhibits to Mr Weston’s affidavits. I have only identified a particular affidavit where an exhibit number is shared by more than one affidavit from the relevant deponent.

The matter proceeded to a hearing at Wangaratta before a Tribunal constituted by Mr R J Ball (the Deputy President), Dr S J Mainwaring and Mr John E Godfrey. The hearing was held in three separate sessions; between 26 and 30 March 1990, between 12 and 15 June 1990, and on 4 October 1990. The hearing on 4 October 1990 was in Melbourne and was the hearing of submissions. On 27 August 1990 written submissions of the Shire had been filed. Those submissions, amongst other things, had sought an order for costs against the claimants.[27]
[27]HM-16A: Defence and counterclaim in proceeding [7] dated 18 May 1993, particulars under para 11.

On 14 June 1991 the Administrative Appeals Tribunal (AAT) handed down its decision.[28] It is apparent from the written reasons of the Tribunal that the hearing had involved detailed expert evidence. The claimants had called expert evidence from Dr Russell, a civil engineer; from Dr Loveday, another civil engineer; as well as from Mr Peter Mommsen, a licensed surveyor. Mr Weston and a shearer he had employed from time to time also gave evidence. The Shire had called expert evidence from a civil engineer, Mr J D Tilleard; and had also called the Shire engineer, Mr A D Gallagher; a member of the Black Dog Creek Improvement Trust, Mr J F Fitzgerald; another civil engineer, Mr Arnold Blacket; and five local farmers. The Tribunal’s reasons refer to the “meticulous” evidence called on behalf of the claimants, refer to the “unusually extensive and detailed evidence” of both of the parties, and make reference to the “myriad details” of the matter.
[28]HM-2.

The Tribunal’s reasons set out a summary of the evidence. That evidence addressed an alleged failure on behalf of the Shire to carry out necessary drainage work and an alleged carrying out of drainage work in a negligent manner. The work in question principally concerned drains related to roadways. The evidence involved a detailed analysis of works performed and omitted by the Shire, and of drainage works performed in the area by private individuals, including the claimants. The summary of evidence set out in the reasons indicates that photographs were referred to and relied upon,[29] and that reference was made to the ameliorating effect on flooding of the claimants’ land as a result of the Shire’s construction of what was referred to as the Escort Bridge drain.[30] It seems that the fact that the construction of the Escort Bridge drain had assisted the claimants was not disputed,[31] although the extent of the amelioration may have been controversial.
[29]HM-2: See references at pp 13, 14, 17, 18, 24, 35 and 40.
[30]HM-2: See references at pp 14, 16, 17, 19, 20, 21, 36, 37, 41, 43, 44 and 53.
[31]HM-2: The reasons record Mr Weston’s agreement with that proposition at p 16 and Dr Russell’s agreement at p 41.

The Tribunal found against the claimants. That conclusion was not based on a detailed analysis of the conflicting expert evidence but rather on a broader approach to the overall position, in the course of which reference was made by the Tribunal to the length of time in which the various relevant roadways and drains had existed, and to the competing interests which the management of water necessarily involves. The Tribunal’s conclusion was also based upon legal obstacles, which the Tribunal found that the claimants could not overcome, in establishing nuisance or negligence against a public authority. No specific reference was made to the Escort Bridge drain in the Tribunal’s explanation for the failure of the claim.

In the current application the Attorney-General did not suggest that this proceedings, referred to as Proceeding [1], was vexatious.

It was clear from Mr Weston’s submissions to me on the current application that this decision of the AAT is seen by him to be a fundamental cause of all that has subsequently transpired. With a view to explaining his subsequent actions, and those which he intends to pursue in the future, he told me in submissions that there were four particular matters he wished to emphasise about this original AAT decision.[32] They were:

(1)An affidavit of documents had been served by the Shire the day before the hearing started. Mr Weston submitted that subsequent events have revealed that that affidavit was false and incomplete.
(2)During the hearing it was either agreed or decided that the matter would proceed on the issue of liability only. Mr Weston said no mention was made of what was to occur in relation to costs. He told me that he understood that to mean that costs would not be decided in that hearing.
(3)The expert witnesses for the Shire handed over their reports for the first time when they were called to give evidence and, despite protests, they were permitted by the Tribunal to do that. Mr Weston now claims that at least one of those reports, that of Mr Tilleard, was ‘fraudulent’.
(4)The Shire raised a large number of issues of law and fact in its submissions made in October 1990 which had not been properly foreshadowed and revealed previously.

[32]Transcript 154-160.

In addition to dismissing the claimant’s claim in Proceeding [1], the AAT also made the following order:

“The Claimant shall pay the Respondents’ costs. If the parties are unable to agree as to the quantum of such costs application may be made to the Tribunal to determine same.”[33]

[33]HM-2 at p 61.

Costs in proceedings before the Tribunal were governed by s 58 of the Planning Appeals Act 1980. As the AAT’s order for costs is important to many of the subsequent proceedings, it is necessary to set out the provisions of s 58 in full. The section provided:

“(1)Subject to this Act, each party to proceedings before the Tribunal shall bear its own costs.
(2)If the Tribunal is of the opinion in a particular case that there are circumstances that justify it in doing so, the Tribunal may make such orders as to costs as it thinks just.
(3)Notwithstanding anything in this Act, where on the hearing of an appeal a party raises a question of law or fact not raised by the party at a compulsory conference held pursuant to Division 3 of Part IV, the Tribunal before which the appeal is being heard may, if it considers that the question of law or fact ought reasonably to have been raised at the compulsory conference, order that party to pay to each other party to the appeal the amount (if any) by which the costs of that other party have been increased by reason of the failure to raise that question at the compulsory conference.
(4)All costs awarded to a party under this Act shall be a debt due to that party and recoverable by action in any court of competent jurisdiction.”

Rights of appeal from the 1991 decision of the AAT were governed by s 52 of the Administrative Appeals Tribunal Act 1984. Under sub-s (1), a party was permitted to appeal on a question of law to the Supreme Court. Under sub-s (3), if the President or a Deputy President had presided, as had been the case here, then the appeal was to be heard and determined by the Full Court. Under sub-s (4), a party had until the 28^th day after the day on which a document setting out the terms of the decision of the Tribunal was furnished to the person, or such further time as the Supreme Court might allow, in order to institute the appeal.

Mr and Mrs Weston did not appeal within the time provided for by the Administrative Appeals Tribunal Act 1984.

By a letter of 30 September 1991, Dawes & Vary advised Mr Weston in relation to s 58(3) of the Planning Appeals Act 1980.[34]The terms of the letter suggest Mr Weston had raised the subsection with them. Dawes & Vary advised:

“[I]t is a matter well worth in my opinion you arguing as the question of the payment of costs in this matter was not argued before the Tribunal at the conclusion of the hearing.”

[34]MW 6.

An application relying on s 58(3) of the Planning Appeals Act 1980 was made by Mr and Mrs Weston.[35] The application was made by them in person. The application was dated 13 December 2001 and is referred to as Proceeding [2]. It was not heard until September 1992. By that time Mr and Mrs Weston were in litigation not only with the Shire but also with their former solicitors, Dawes & Vary.
[35]HM-3.

Incidents on 6 and 7 February 1992

The dispute between Mr Weston and the Shire of Rutherglen escalated substantially as a result of incidents which occurred in early 1992. Without going into the detail of some controversial events, which have been the subject of both criminal and civil proceedings, on 6 February 1992, incidents occurred involving Mr Weston and a Shire grader undertaking work relating to the drainage of roads near his property. On 7 February 1992 Mr Weston was arrested, handcuffed, imprisoned, and assessed under mental health legislation. He was charged with a number of criminal offences.

January to September 1992

On 15 January 1992 Dawes & Vary issued proceedings against Mr and Mrs Weston seeking recovery of costs, initially claimed at $24,993.27 and subsequently amended, pursuant to an order of Judge Cullity dated 3 March 1994, to $24,958.59.[36]
[36]HM-50.

Documents produced by Mr Weston in affidavits relied upon by him in this application reveal that in early 1992 Mr Weston was under financial pressure. The solicitor for the Shire, Mr Andrew Melville, was pressing for a taxation of the costs ordered against the claimants in the AAT claim (Proceeding [1]),[37] and, with a view to execution, had begun making inquiries of the mortgagees, or at least one of them, of Norong Park.[38] Mr Weston’s bank manager was concerned about the position and was considering recovery action.[39]
[37]Letter, 27 February 1992, in MW 8.
[38]Letter, Melville to State Bank of Victoria, 21 May 1992, in MW 21.
[39]State Bank diary note, 1 July 1992, in MW 21.

Mr Weston’s application under s 58 (3) (Proceeding [2]) was heard on 10 April 1992 and on 12 June 1992.[40] Detailed written submissions were filed by the parties.
[40]HM-5.

On 24 March 1992 Mr and Mrs Weston filed a defence and counterclaim (Proceeding [16]) to the proceeding bought against them by their former solicitors, Dawes & Vary.[41] The counterclaim was amended on 7 August 1992. The counterclaim and the amendment were prepared by them personally. The counterclaim alleged numerous breaches of a duty of care said to have occurred as a result of acceptance of late delivery of documents, failure to apply for adjournments, and failure to adequately deal with the question of costs. It also made a number of other complaints. The counterclaim sought damages of the amount which it was alleged ought to have been recovered from the Shire, $12,300; plus the then estimate of the costs due to the Shire, being $88,894; the costs incurred by the claimants before the AAT including the s 58 (3) application, being $95,500; and an unspecified sum in relation to costs to be incurred on an application to the Full Court.
[41]HM-50.

On 14 August 1992 the criminal charges against Mr Weston arising out of the events on 6 and 7 February 1992 were heard at the Wangaratta Magistrates’ Court. I was told by Mr Weston that the charges against him, other than a charge of careless driving, were dismissed.[42]
[42]Transcript 227-229. See also HM-16A and Exhibit MW D to the affidavit of Michael Weston sworn 12 November 2001.

On 4 September 1992 Mr and Mrs Weston prepared, and subsequently filed, a further application to the AAT (Proceeding [3]).[43] This application was made pursuant to s 49A of the Administrative Appeals Tribunal Act 1984. Section 49A provides for what is often referred to as a “slip rule”. The claimants’ application under s 49A was not an application of this kind at all. It was an attempt to overturn the 1991 AAT decision in Proceeding [1] on the merits.
[43]HM-4.

On 14 September 1992 Mr and Mrs Weston filed an originating motion in the Supreme Court, which they had prepared themselves, seeking leave to appeal out of time pursuant to s 52 of the Administrative Appeals Tribunal Act 1984 against the determination in Proceeding [1] (the AAT decision on 14 June 1991). This proceeding is referred to as Proceeding [4]. The application was heard by the Full Court of the Supreme Court of Victoria, constituted by Marks and Hayne JJ, on 25 September 1992. Just prior to that hearing, on 15 September 1992, the AAT, constituted by Messrs Ball, Mainwairing and Godfrey, determined the s 58(3) proceeding (Proceeding [2]).

The Tribunal delivered written reasons in relation to the s 58(3) application (Proceeding [2]).[44] The application failed for two reasons. First, the Tribunal was satisfied that the respondent did not raise any question of law or fact during the hearing that it had not raised at the compulsory conference. In this connection the Tribunal also observed that the questions of law and fact required to be determined had been identified in the pleadings either before or at the compulsory conference.[45] Secondly, the Tribunal accepted a submission that it was “functus officio” as an order for costs had already been made. The Tribunal observed that an application under s 58(3) should have been made before the conclusion of the hearing and that it was not possible for such an application to be made afterwards.[46] The Tribunal made another order for costs against the Westons.
[44]HM-5.
[45]HM-5 p 4.
[46]HM-5 pp 4-5.

The Attorney-General submitted that the s 58(3) application to the AAT (Proceeding [2]) was vexatious as it was obviously untenable. I do not accept that. Although it was unsuccessful, it seems to me to have been arguable, as had been the advice of Dawes & Vary.

25 September 1992

As previously indicated, Mr and Mrs Weston’s application for leave to appeal out of time (Proceeding [4]) from the 1991 AAT decision was heard on 25 September 1992. In submissions before me, Mr Weston indicated that he considered the events on that day to be critical to the outcome of this application.

On 25 September 1992 the position was as follows:

(1)Mr and Mrs Weston had failed in their claim against the Shire in Proceeding [1] and had had costs awarded against them. They had not appealed within time.
(2)Mr and Mrs Weston had made an application for leave to appeal out of time against the AAT decision (Proceeding [4]) which was to be heard that day by Marks and Hayne JJ.

(3)Mr and Mrs Weston’s application to the AAT under s 58(3) of the Planning Appeals Act 1980 (Proceeding [2]) had failed and costs had been ordered against them again.
(4)Mr and Mrs Weston had also made an application to the AAT under s 49A of the Administrative Appeals Tribunal Act 1984 (Proceeding [3]). This application was misconceived, but had not yet been heard.
(5)Mr and Mrs Weston had made a counterclaim against their former solicitors Dawes & Vary (Proceeding [16]) which had not yet been heard.

Mr Weston explained to me that on 25 September 1992 he appeared in person before Marks and Hayne JJ on his application to appeal out of time (Proceeding [4]) against the initial decision of the AAT (Proceeding [1]). Mr Melville, the Shire’s solicitor, also attended court that day. Mr Weston told me in submissions that significant rainfall occurred immediately prior to the hearing on 25 September 1992. He said that he was in Melbourne and was unaware of the fact that rain was falling and that flooding had occurred, but he asserted to me that Mr Melville would have known of that fact. Mr Weston submitted to me that Mr Melville ought to have announced to the Full Court on 25 September 1992 that the Shire conceded that the 1991 determination of the AAT (Proceeding [1]) was totally wrong. Mr Weston said that if he had done so all of the subsequent proceedings could have been avoided. [47]
[47]Transcript 48-49, 132-135, 138-141, 172.

It is impossible for me to make any realistic assessment of the validity of Mr Weston’s assertions about the rainfall on 25 September 1992 and about what Mr Melville, or anyone else, knew or did not know as a result of that rainfall. For the purposes of this application it is not necessary to do so. The Court on this application cannot conduct a review of the merits of a decision of the AAT made over 13 years ago in the light of later events. The Court’s task is to assess the proceedings that have been brought by Mr Weston in order to determine whether the requirements of s 21 of the Supreme Court Act 1986 have been met and to then consider whether an order ought to be made.

The application for leave to appeal out of time (Proceeding [4]) was dismissed with costs.[48] The reasons were given by Marks J. Marks J held that the application was simply made far too late. He also observed that the application had an added problem, which was that Mr Weston had been unable to make it apparent that there was any question of law involved in the appeal that he sought to litigate.
[48]HM-9A.

The Attorney-General submitted that the application for leave to appeal out of time which was dismissed by the Full Court on 25 September 1992 (Proceeding [4]) was vexatious, relying upon the fact that more than one year had elapsed since the AAT determination. I am not prepared to make a finding that this proceeding was vexatious. It seems to me that an appeal under s 52 was a course open to Mr and Mrs Weston and that this application to appeal out of time represented one occasion upon which Mr Weston did take an appropriate course, by way of contrast, for example, with his application under s 49A (Proceeding[3]). It is true that the Court considered that he (together with his wife) took this course after too long a period of delay. That is why the application failed. Many such applications fail for that reason. In the circumstances, notwithstanding the Full Court’s rejection of the application, I am not prepared to find that the application was vexatious.

Late 1992

On 12 October 1992 Mr and Mrs Weston made a further application to the Planning Division of the AAT concerning the Shire’s drainage works.[49] This application concerned works carried out by the Shire on 5 and 6 February 1992 and between November 1991 and May 1992. This application is referred to as Proceeding [6].
[49]HM-12.

On 16 October 1992 Mr and Mrs Weston filed a Notice of Appeal to the Full Court of the Supreme Court under s 52 and 53 of the Administrative Appeals Tribunal Act 1984 against the decision of the AAT made on 15 September 1992 dismissing the application under s 58(3) of the Planning Appeals Act 1980. This appeal is Proceeding [5].[50]
[50]HM-10.

On 21 October 1992 there were three hearings at the AAT. The first was the hearing of the application under s 49A (Proceeding [3]). The second was a taxation of the costs in the original AAT application (Proceeding [1]). The third was a directions hearing in Proceeding [6].[51]
[51]HM-12.

The amount claimed by the Shire for costs in relation to the original AAT hearing (Proceeding [1]) was $88,894.24. On taxation, this was reduced to $69,940.59. The determination was made by Deputy President Ball.[52] On that hearing Mr Weston appeared with his father-in-law, a Mr J Heffernan. Mr Weston told me that Mr Heffernan had held a position with a legal aid organisation. I assume that he was legally trained. Mr Weston told me that Mr Heffernan had endeavoured to persuade him to give up all of the litigation and that Mr Heffernan had told him that the Shire had indicated they would be reasonable about the payment of costs.[53]
[52]HM-6.
[53]Transcript 56-57, 174-176.

By a letter dated 26 October 1992 Mr and Mrs Weston applied for an order under s 28(3) of the Planning Appeals Act 1980 that all persons in the second drainage claim that they had just instituted (Proceeding [6]) should appear in person. Mr Weston told me in submissions in the current application that he was concerned about the costs that would be incurred as a result of the Shire’s legal representation. The s 28(3) application was refused by the President of the AAT on 27 October 1992.[54] The refusal of that application prompted Mr and Mrs Weston to withdraw their second drainage claim (Proceeding [6]), which they did by notice dated 27 October 1992 enclosed in a letter they sent to the Acting Registrar of the AAT on 28 October 1992.[55]
[54]HM-13.
[55]HM-14 and Transcript 175-176.

The Attorney-General submitted that the second drainage claim (Proceeding [6]) was “probably vexatious”. This submission was made on the basis that one could infer that it was obviously untenable because it was withdrawn after the application concerning legal representation, which the Attorney-General submitted was wholly unmeritorious, had been refused. I do not accept that. It is impossible for me to determine the merits of the second drainage claim (Proceeding [6]). The fact that it was withdrawn in the circumstances referred to does not lead me to conclude it was utterly hopeless. I do not find that it was a vexatious proceeding.

On 2 November 1992 the AAT determined Mr and Mrs Weston’s application under s 49A of the Administrative Appeals Tribunal Act 1984 (Proceeding [3]). The application was dismissed.[56] The Tribunal indicated that the orders sought in the application were not orders contemplated by s 49A. An order for costs was again made against the applicants.
[56]HM-7.

The Attorney-General submitted that the proceeding under s 49A (Proceeding [3]) was obviously untenable and in my opinion that is correct. The application was misconceived. Mr Weston said in submissions to me that this application was one he and his wife had worked out as it appeared to be “a cheap way” of bringing an appeal.[57] This was the institution of a vexatious legal proceeding.
[57]Transcript 167. The transcript incorrectly refers to “in a pleading” instead of “an appeal”.

By notice dated 2 November 1992 and filed 11 November 1992,[58] Mr and Mrs Weston discontinued their appeal in relation to the dismissal of their s 58(3) application (Proceeding [5]).
[58]HM-11.

The Attorney-General submitted that the appeal (Proceeding [5]) against the rejection of the s 58(3) application was vexatious. It was submitted on behalf of the Attorney-General that the AAT decision in relation to the s 58(3) application was clearly correct. I have already indicated that in my view the s 58(3) application itself was arguable. The appeal was never the subject of any determination and I am not prepared to conclude that it was utterly hopeless because it was discontinued in the circumstances existing in late 1992. I do not find that Proceeding [5] was a vexatious proceeding.

On 8 December 1992 the costs of the s 58(3) application were taxed and reduced from $19,859.93 to $13,119.81.[59]
[59]HM-8.

In December 1992, in Proceeding G274 of 1992 in the County Court, the Shire sought to obtain judgment pursuant to s 50(4) of the Administrative Appeals Tribunal Act 1984 for the costs orders it had obtained. However, the Act which had introduced that section had been proclaimed to come into effect in January 1992 and had provided that it would not apply to proceedings already commenced.[60] Mr Weston employed a firm of solicitors who succeeded in having the irregular judgment set aside. The solicitors were Rigby Cooke. Mr Weston told me in submissions that he obtained an order for costs on a solicitor/client basis in relation to the irregular judgment and the steps taken to set it aside.[61]
[60]See HM-26: Weston v Indigo Shire Council, unreported, Supreme Court of Victoria Court of Appeal, 11 October 1995, per Winneke P.
[61]Transcript 178.

The position as it stood at the end of 1992 was as follows:

(1)All of Mr and Mrs Weston’s various applications against the Shire had failed and they had incurred liabilities for the Shire’s costs in the first drainage claim (Proceeding [1]), the s 58(3) application (Proceeding [2]), the s 49A application (Proceeding [3]), and the second drainage claim (Proceeding [6]). The Shire had entered an irregular judgment for these costs, which would eventually be set aside with costs ordered in favour of the Westons on a solicitor/client basis.
(2)The Westons’ former solicitors, Dawes & Vary, continued to sue them for costs. The Westons had a counterclaim against those solicitors (Proceeding [16]), seeking to recover the costs they had incurred in the first drainage claim, the costs which had been awarded against them, and other losses.

1993

Rigby Cooke did not continue acting for Mr and Mrs Weston. Mr Weston told me in the course of his submissions on this application that it was simply too expensive for him and his wife to continue employing them.[62]
[62]Transcript 179.

In March 1993 the Shire of Rutherglen issued proceeding No MC930819 in the County Court against Mr and Mrs Weston.[63] The statement of claim sought $69,940.59 in relation to the costs of the first drainage claim (Proceeding [1]), and a total of $20,504.21 in relation to the costs of the s 58(3) application to the AAT (Proceeding [2]), the s 49A application to the AAT (Proceeding [3]) and the second drainage claim (Proceeding [6]). The Shire also claimed interest.
[63]HM-16.

Mr and Mrs Weston prepared their own defence and counterclaim, which was dated 18 May 1993 (Proceeding [7]).[64] The defence and counterclaim relied upon an agreement alleged to have been made during the course of the AAT hearing, and made allegations concerning the raising of new questions of law and fact and the making of submissions designed to bias the Tribunal’s decision. It also made a claim of trespass on the basis of the alleged undertaking of works causing a direct intrusion of water onto their land; a claim under the Water Act 1989, the Water Act 1958 and the River Improvement Act 1958 as a result of alleged intentional flooding; a claim headed “Unlawful Arrest, False Imprisonment and Malicious Prosecution” in relation to the events in early February 1992 and the police charges heard on 14 August 1992; and a number of other claims including a defamation claim. Proceeding [7] had claims reminiscent of the s 58(3) application (Proceeding [2]), and the second drainage claim (Proceeding [6]) as well as a number of new claims.
[64]HM-16A.

On 5 August 1993 Mr and Mrs Weston filed an originating motion in the Full Court of the Supreme Court (Proceeding [8]). [65] Amongst the relief and remedies sought was an order that Mr and Mrs Weston “have leave to continue the appeal . . . which was discontinued by Notice of Discontinuance filed by the Applicants on 2nd November 1992”. This is a reference to the previous appeal (Proceeding [5]) concerning the AAT determination of the application under s 58(3). Proceeding [8] was the first of a number of proceedings subsequently taken in an attempt to resurrect that discontinued appeal. The Attorney-General’s material indicates that the court file in relation to this proceeding does not disclose any further steps taken beyond the filing of the originating motion.[66] Mr Weston told me in submissions that that was the case.[67]
[65]HM-37.
[66]Affidavit of Hugh McArdle sworn 25 September 2001, para 71.
[67]Transcript 182-3.

The Attorney-General submitted that Proceeding [8] was vexatious. Counsel for the Attorney-General relied upon the fact that the application was an attempt to revive a discontinued appeal (Proceeding [5]) by a new proceeding and upon the fact that no step was ever taken by Mr and Mrs Weston in that proceeding. Mr Weston told me in his submissions that the attempt to revive Proceeding [5] was prompted by his belief that the original discontinuance had been obtained by deception.[68] On the material I have I cannot conclude that Proceeding [8], being the first attempt to revive Proceeding [5], was vexatious.
[68]Transcript 181-182.

On 30 September 1993, Judge Lewis in the County Court struck out the defendant’s defence and counterclaim (Proceeding [7]) in the Shire’s cost recovery proceeding; gave the Shire judgment for both the amount of costs claimed together with interest, being a total sum of $101,329.81, and for the costs of the application; gave the defendants leave to file and serve an amended counterclaim; and ordered that there be a stay of execution on the judgment until the determination of the counterclaim or further order.[69] In the latter part of 1993 an amended counterclaim was prepared. It seems from the documents that Rigby Cooke were acting again for Mr and Mrs Weston at this time.[70] By the amended counterclaim dated 28 October 1993, Mr and Mrs Weston made claims to the following effect:

Paras 6-16: a claim relating to the alleged unlawful carrying out of drainage works between February 1992 and September 1992.
Paras 17-21: a claim relating to the alleged wrongful arrest and imprisonment on 7 February 1992.
Paras 22-24: a claim that the Shire caused the malicious prosecution of Mr Weston on 14 August 1992.
Paras 25-28: a claim relating to the unlawfully registered judgment in December 1992.
Para 29: a claim relating to an alleged unlawful assault on Mr Weston on 7 February 1992.[71]

[69]HM-19.

[70]HM-20.

[71]See description in HM-26. Judgment of Appeal Division, 11 October 1992.

At the end of 1993, the position was as follows:

(1)Mr and Mrs Weston’s former solicitors, Dawes & Vary, continued to have proceedings on foot against the Westons. Mr and Mrs Weston had counterclaimed and the counterclaim had not been determined (Proceeding [16]).
(2)The Shire of Rutherglen had judgment against the Westons for approximately $101,000 plus costs. The Westons had a stay, pending determination of their counterclaim (Proceeding [7]).
(3)Mr and Mrs Weston had issued a proceeding (Proceeding [8]) in an attempt to revive their appeal (Proceeding [5]) concerning the determination of their application under s 58 (3). No step had been taken in that proceeding and no step ever was taken.

1994

In January 1994 a solicitor named Peter Julian Connor from the firm Constable Connor and Co in Wangaratta began assisting Mr Weston.[72] Mr Weston told me in submissions that Mr Connor initially assisted him on a pro bono basis.[73]
[72]HM-55: Proceeding [17] defence and counterclaim dated 31 March 1995, para 7.
[73]Transcript 185.

On 18 February 1994, in the County Court costs recovery proceeding issued by the Shire, Judge Higgins determined an application by the Shire seeking to have Mr and Mrs Weston’s amended defence and counterclaim (Proceeding [7]) struck out, alternatively an order that it be stayed until the defendants had satisfied the Shire’s judgment, and also seeking liberty to execute on the judgment. Judge Higgins did not strike out the claims concerning the alleged unlawful drainage work (paras 6-16 of the amended defence and counterclaim) but he did strike out the wrongful arrest and malicious prosecution claims, the claims concerning the irregular judgment, and the claims concerning wrongful assault. Judge Higgins then determined that there was no set off and that, as the claim that had not been struck out had no connection or nexus with the claim for which the Shire had obtained judgment, the plaintiff ought to have leave to execute on the judgment previously obtained.[74] The Westons appealed from these orders by a Notice of Appeal dated 22 March 1994.[75]
[74]HM-21.
[75]HM-22.

By summons dated 24 March 1994, Mr and Mrs Weston sought to have an order made that Judge Higgins’ order be stayed pending the appeal.[76] On 20 April 1994 Judge Curtain ruled that she did not have jurisdiction to entertain that application.[77] Mr and Mrs Weston were represented by counsel before Judge Curtain. They then issued an originating motion in this Court seeking to overturn Judge Curtain’s ruling (Proceeding [9]).[78] The originating motion records that Constable Connor & Co were acting as solicitors for Mr and Mrs Weston on that application. On 6 May 1994 a summons was issued in Proceeding [9] seeking an order restraining the Shire from executing upon the judgment.[79] On 18 May 1994 Beach J dismissed that summons. [80]
[76]HM-23.
[77]HM-23A.
[78]HM-38.
[79]HM-38.
[80]HM-39.

In March 1994 the hearing of the proceeding in which Dawes & Vary sought to recover their costs and in which Mr and Mrs Weston had counterclaimed (Proceeding [16]) was commenced before Judge Cullity. Unfortunately, Judge Cullity discovered that he had a conflict of interest and the trial was aborted on the fifth day.[81]
[81]Referred to in Connor v Weston, unreported, Supreme Court of Victoria, Ashley J, 5 June 1996 at p 23 (HM-62); see Transcript 56-57.

In June and July 1994 Mr and Mrs Weston re-financed Norong Park with a loan of $400,000 from solicitors who conducted a contributory mortgage practice in Geelong under the name Price Higgins. The lenders were two solicitors named Bannister and Hartnett and they took a mortgage to secure the loan.[82] From the settlement proceeds, some $112,000 was paid to the Sheriff to meet the various costs orders in favour of the Shire.[83]
[82]HM-69: Pleadings, Proceeding [20]. See also the judgment at the trial of Proceeding [20]: Bannister v Weston, unreported, Supreme Court of Victoria, Southwell J, 13 March 1997 (HM-76).
[83]HM-78: Weston v Bannister, unreported, Supreme Court of Victoria, Court of Appeal, 8 September 1997 (the judgment of the Court of Appeal in Proceeding [21]).

By a summons filed 18 July 1994 the Shire sought to have Proceeding [9] (the review of Judge Curtain’s decision) dismissed.[84] On 1 August that proceeding was dismissed by consent.[85]
[84]HM-40.
[85]HM-40.

The Attorney-General submitted that Proceeding [9] was vexatious. The material I have simply does not enable me to reach that conclusion. I am unable to conclude that the proceeding was hopeless merely because it was dismissed by consent. It was not suggested that the Westons were acting for any improper purpose.

Whilst Mr Connor may have commenced acting for Mr and Mrs Weston on a pro bono basis, that basis of engagement did not continue. In August 1994 Mr Weston mortgaged Norong Park to Mr Connor to secure both incurred and future legal costs.[86]
[86]HM-54: Writ and Statement of Claim, 4 January 1995.

In July 1994 negotiations were held, as a result of which, it was subsequently found, the claim by Dawes & Vary and Mr and Mrs Weston’s counterclaim (Proceeding [16]) were settled on the basis that each party would withdraw their respective claims and bear their own costs.[87] The negotiations were conducted by Mr Connor on behalf of Mr and Mrs Weston (although whether he was acting properly on instructions subsequently became controversial) and Mr Alan Norster of the firm Phillips Fox on behalf of Dawes & Vary.
[87]Referred to in Connor v Weston, unreported, Supreme Court of Victoria, Ashley J, 5 June 1996 at p 26 (HM-62).

On 29 August 1994 Judge Hart made an order giving Dawes & Vary leave to amend their reply and defence to counterclaim to allege a settlement agreement made on 25 July 1994.[88] By a reply, which they prepared themselves, Mr and Mrs Weston disputed the settlement, alleging, amongst other things, duress and undue influence by Mr Connor.[89] On 21 September 1994 Judge McNab in the County Court ordered that both the claim and the counterclaim (Proceeding [16]) be dismissed and that Mr and Mrs Weston pay Dawes & Vary’s costs incurred after 28 July 1994.[90] One might have thought that, absent an appeal (and there was no appeal), Judge McNab’s judgment would have constituted the end of Proceeding [16]. Mr Weston, however, had another application to make in Proceeding [16], although he did not make it for over three years.
[88]HM-51.
[89]HM-51.
[90]HM-52.

The position at the end of 1994 was as follows:

(1)Mr and Mrs Weston’s counterclaim in the Dawes & Vary proceeding (Proceeding [16]) had been dismissed. A further costs order had been made against them.
(2)Using funds borrowed from Bannister and Hartnett, Mr and Mrs Weston had met their liabilities under the various orders for costs in favour of the Shire. Their counterclaim against the Shire (Proceeding [7]) had only survived a strike-out application in part. Mr and Mrs Weston’s appeal from the decision of Judge Higgins striking out most of the counterclaim and giving the Shire leave to execute was still pending.

1995

On 4 January 1995 Mr Connor issued a writ against Mr and Mrs Weston, seeking possession of Norong Park.[91] Mr and Mrs Weston filed a defence and counterclaim on 31 March 1995 (Proceeding [17]).[92] The defence and counterclaim alleged, amongst other things, that Mr Connor “may be in breach of Section 81 sub-Section 1 of the Crimes Act 1958 in seeking possession of the Firstnamed Defendant’s property under the alleged mortgage”.[93] Section 81(1) provides for the crime of obtaining property by deception. The defence and counterclaim also alleged fraudulent misrepresentation. It alleged that Mr Connor “sought exclusive control of the Defendants matters in order to conspire with the Defendants first solicitor’s solicitor and the solicitor’s liability committee to force the Defendants to accept the offer of settlement made by the Defendants first solicitor and to influence the Firstnamed Defendant to provide a larger mortgage to the Plaintiff”. There are a number of other allegations of fraud. There is an allegation that Mr Connor “conspired” with Mr Alan Norster of Phillips Fox to prevent the defendants from prosecuting their counterclaim against Dawes & Vary. The defence and counterclaim was amended a number of times throughout 1995. To the allegations of fraud and undue influence were added allegations of breach of fiduciary duty.[94]
[91]HM-54.
[92]HM-55.
[93]Unless I have otherwise indicated, when quoting statements from documents produced by Mr Weston I have attempted to reproduce them as they appear in the document.
[94]HM-57.

On 10 October 1995 the Appeal Division of the Supreme Court (Winneke P, Phillips and Hayne JJA) heard the appeal from the orders made by Judge Higgins on the counterclaim against the Shire (Proceeding [7]). Judgment was delivered the next day, 11 October 1995.[95] Mr and Mrs Weston each appeared in person. Mrs Weston informed the Court that she was no longer interested in pursuing either the appeal or the counterclaim and the Court accordingly gave her leave to take no further part in the appeal.
[95]HM-26.

The judgment in the appeal from the orders of Judge Higgins set out a considerable part of what Winneke P referred to as “the sorry and regrettable history” of the matter. The President observed that by March 1993 the affair between Mr Weston and the Council “appears to have overtaken Mr Weston’s life”.

Mr Weston, pursuing the appeal alone, had a measure of success. Upon the imposition of conditions about particulars and the like, he was permitted to raise, one way or another, many of the issues he had previously sought to pursue. The Court observed that, as the Shire’s judgment had been paid, there was no further point in dealing with the issue concerning Judge Higgins’ failure to grant a stay of execution of the judgment in favour of the Shire, although Winneke P indicated that for his part he was satisfied that Judge Higgins was “clearly correct”. As to the further conduct of the matter the President observed:

“It is, in my view, a relatively simple factual dispute which, subject to compliance with the orders of this court, is now in a condition where it ought to be litigated with dispatch.”

In October 1995 Mr Weston defaulted on the loan advanced by Bannister and Hartnett.[96] On 29 November 1995 Bannister and Hartnett issued proceedings in this Court.[97]
[96]HM-76: Bannister v Weston, unreported, Supreme Court of Victoria, Southwell J, 13 March 1997.
[97]HM-69.

In November 1995 Mr Weston delivered an amended defence and counterclaim in the Shire costs recovery proceeding (Proceeding [7]).[98] He also unsuccessfully applied to add a number of parties, being officers of the Solicitors’ Liability Committee, Mr Alan Norster of Phillips Fox, Mr John Adams of Dawes & Vary, and his wife, Patricia Mary Weston, to his counterclaim in the Connor proceeding (Proceeding [17]).[99] On 13 December 1995 substantial parts of his counterclaim in the Connor proceeding (Proceeding [17]) were struck out by Master Wheeler with leave to file a further amended defence and counterclaim.[100]
[98]HM-27.
[99]HM-58.
[100]HM-58.

The position at the end of 1995 was as follows:

(1)Supreme Court proceedings were on foot between Mr Weston and his former solicitor, Peter Julian Connor, in which Mr Weston had made allegations in a counterclaim (Proceeding [17]) of a very serious nature.
(2)Supreme Court proceedings were also on foot between Mr Weston and his financiers, Bannister and Hartnett.
(3)The counterclaim in the Shire costs recovery proceeding in the County Court (Proceeding [7]) had substantially survived as a result of the appeal in October 1995. The counterclaim was thereafter to be pursued by Mr Weston alone.

1996

On 11 January 1996 Mr Weston filed a defence and counterclaim in the proceedings instituted by Bannister and Hartnett (Proceeding [20]).[101] The defence and counterclaim denied that any money was owed and denied that the deed of mortgage was the deed of the defendant. It alleged unconscionable exploitation by the plaintiffs of what was alleged to be Mr Weston’s special disability.
[101]HM-69.

The trial of Mr Connor’s possession claim and the counterclaim against Mr Connor (Proceeding [17]) was held before Ashley J between 5 and 14 June 1996. It is clear from the eventual judgment that Ashley J had serious concerns as to the form and content of the defence and counterclaim. It was further amended during the trial.

Bannister and Hartnett had managed to obtain final judgment against Mr Weston on 24 April 1996, but an appeal from that judgment was allowed by consent by the Court of Appeal on 4 October 1996 “in consequence of a point unearthed by the bench”.[102]
[102]See Weston v Bannister, unreported, Supreme Court of Victoria Court of Appeal, 8 September 1997, at p 10 per Tadgell JA.

In July and August 1996 there were further developments. On 23 July 1996 the Deputy Registrar of Firearms, Mr John McCarthy, issued a Notice of Cancellation of Mr Weston’s shooter’s licence. Mr Weston had a right of appeal to a magistrate. He appealed to the Magistrates’ Court at Shepparton without success.[103] It seems that the Deputy Registrar had acted as a result of being alerted to certain matters put by Mr Weston in relation to his mental condition to Ashley J.[104] On 12 August 1996 a search warrant was issued by the Magistrates’ Court at Wangaratta[105] and charges were laid against Mr Weston under the Firearms Act 1958 consequent upon that search. Those charges were dismissed in due course at the Wangaratta Magistrates’ Court on 5 December 1996.[106] These events are relevant as they prompted two proceedings instituted by Mr Weston, which were dealt with by Harper J, and which the Attorney-General submits were vexatious. The first such proceeding was an originating motion seeking to attack the issue of the search warrant (Proceeding [23]).[107] This application was filed on 23 September 1996. Amongst the relief sought was the following (I have corrected some spelling):

“Relief in the nature of prohibition granting a permanent and irrevocable injunction restraining the second defendant and any other officers of the Victorian Police from providing any reports, information or laying charges pursuant to any Act of the State of Victoria without obtaining sworn statements from complainants and providing those statements to the plaintiff.”

[103]HM-85: Weston v McGrane; Weston v McCarthy, unreported, Supreme Court of Victoria, Harper J, 1 July 1997.

[104]Exhibit HMcA-1 to the affidavit of Hugh McArdle sworn 8 March 2002: Weston v Wilson; Shire of Indigo v Weston, unreported, County Court of Victoria, Judge Dove, 30 January 2002 at p 104.

[105]HM-83: HM-85 at p 6.

[106]Exhibit HMcA-1 to the affidavit of Hugh McArdle sworn 8 March 2002: Weston v Wilson; Shire of Indigo v Weston, unreported, County Court of Victoria, Judge Dove, 30 January 2002 at p 105.

[107]HM-83.

Ashley J gave judgment in Proceeding [17] (Connor) on 31 October 1996.[108]
[108]HM-62.

Ashley J set out the history of amendments and strike-outs of the defence and counterclaim and then attempted to summarise the defence. He said (at p 3):

“Without attempting a comprehensive description of the Defence, what can generally be said is this: that throughout the present litigation the defendant has pursued a series of serious allegations against the plaintiff. He has alleged that the plaintiff conspired with a wide range of persons to injure him, that the plaintiff acted negligently in his affairs, in breach of retainer and in breach of fiduciary duty and that the plaintiff exercised undue influence over him. The defendant has further alleged that he did not voluntarily execute the mortgage upon which the plaintiff relies. He asserts that the effect of an agreement made between he and the plaintiff is that no liability to pay the plaintiff his costs and disbursements has ever arisen (and could ever arise).”

Ashley J formed strong views about the reliability of Mr Connor on the one hand and Mr Weston on the other. He found Mr Connor to be reliable; he found that Mr Weston was not. Ashley J found that the serious allegations made by Mr Weston against Mr Connor were without foundation. In this respect I refer to the following observations:

Page 11:
“He made serious allegations against the plaintiff and other legal practitioners without there being any proper foundation for doing so.”

Pages 35-36:
“I specifically reject that allegation, which was just one of a number of grave and unfounded allegations made by the defendant in this proceeding.”

Page 68:
“The conspiracy pleading is unsupported by evidence and is a nonsense. A regrettable aspect of the matter is that these irresponsible allegations were ever made.”

Page 82:
“There is not the slightest evidence of a conspiracy such as the defendant has alleged.”

Page 83:
“The basis upon which participation in the asserted conspiracy by Mrs Weston’s parents was sought to be made out (T566-567) was ludicrous.”

Ashley J gave judgment for the plaintiff in the sum of $77,686.62 plus interest and ordered that the defendant give up possession of the mortgaged property. On the counterclaim, there was judgment for the defendant by counterclaim. By an order made 14 November 1996 his Honour corrected some of the figures and made allowance for a payment previously made to the plaintiff pursuant to an order of Beach J.[109]
[109]HM-62.

The Attorney-General submitted that the counterclaim against Mr Connor (Proceeding [17]) was vexatious. In relation to this counterclaim (Proceeding [17]), the Dawes & Vary counterclaim (Proceeding [16]), the appeal from Ashley J (Proceeding [18]) and in relation to an application subsequently made to Kellam J to set aside Ashley J’s decision (Proceeding [19]), Mr Weston submitted to me in response that I would have to read each of the judgments and make up my own mind.[110] It seems to me that a reading of Ashley J’s judgment, fortified by the judgment in the subsequent appeal to which I will refer, can result in only one conclusion. The counterclaim was utterly hopeless and was a vexatious proceeding.
[110]Transcript 204.

By Notice of Appeal dated 13 November 1996 (Proceeding [18]) Mr Weston appealed from Ashley J’s decision.[111]
[111]HM-64.

The position at the end of 1996 was as follows:

(1)Mr Connor had obtained judgment against Mr Weston and Mr Weston’s counterclaim had been dismissed (Proceeding [17]). Mr Weston had instituted an appeal (Proceeding [18]).
(2)Bannister and Hartnett’s claim and Mr Weston’s counterclaim (Proceeding [20]) were awaiting trial. In December 1996 Master Kings fixed the matter for hearing on 28 February 1997.[112]
(3)Mr Weston’s counterclaim in the County Court against the Shire (Proceeding [7]) was awaiting trial.
(4)Mr Weston’s originating motion concerning the firearms search warrant (Proceeding [23]) was awaiting trial.
[112]Referred to in Bannister v Weston, unreported, Supreme Court of Victoria, Cummins J, 7 February 1997.

1997

On 7 February 1997 Cummins J dismissed an appeal instituted by Mr Weston from Master Kings’ order fixing the Bannister and Hartnett proceeding and counterclaim (Proceeding [20]) for hearing on 28 February 1997.[113]
[113]Bannister v Weston, unreported, Supreme Court of Victoria, Cummins J, 7 February 1997.

On 14 February 1997 Mr Weston issued a further originating motion concerning the cancellation of his firearms licence and the rejection by the Magistrates’ Court at Shepparton of his appeal against that cancellation (Proceeding [24]).[114]
[114]HM-84.

Between 3 and 7 March 1997 Southwell J heard the Bannister and Hartnett recovery proceeding and Mr Weston’s counterclaim against Bannister and Hartnett (Proceeding [20]). He gave judgment on 13 March 1999.[115]
[115]HM-76.

Southwell J made an order for possession of Norong Park and gave Bannister and Hartnett judgment for the sum of $487,470.44. He dismissed Mr Weston’s counterclaim (Proceeding [20]) and ordered that Mr Weston pay the plaintiffs’ costs of the whole of the proceeding on a solicitor/own client basis.

Southwell J summarised Mr Weston’s defence (at pp 4 - 5 of the judgment) in terms that revealed that it had the following elements:

(1)There was no mortgage and no monies were advanced. His Honour said these defences were abandoned.
(2)Non est factum.
(3)The walnut trees on the property were not part of the security interest. His Honour said the defendant conceded this defence was not maintainable.
(4)Connor, with the knowledge of and as agent for the plaintiffs, procured the defendant to execute the mortgage. His Honour commented that there was no evidence upon which any finding of agency between Connor and the plaintiffs could be made.
(5)Breach of duty by Connor as agent for the plaintiffs in exercising undue influence over the defendant.

His Honour also observed that the pleading contained allegations of a conspiracy between the plaintiffs, Connor, the President of the Law Institute, the Solicitors’ Liability Committee of the Law Institute, and the solicitor for that committee, in litigation between the defendant and Dawes & Vary. The predominant purpose of the conspiracy was said to be to defraud and injure the defendant.

In the judgment, Southwell J made a number of observations indicating the groundless character of the allegations that were the basis of Mr Weston’s counterclaim (Proceeding [20]).

At page 8 his Honour made comment on the conspiracy allegation:

“Indeed upon the evidence I regard the proposition as absurd.”

At page 9 he observed:

“. . . it is the defendant’s contention that this apparent negligence tended to demonstrate the conspiracy relied upon. Even were I to have been satisfied of some negligence on Connor’s part – and I am not so satisfied – I would again regard the proposition that this negligence tended to prove the conspiracy as absurd.”

In relation to the non est factum defence his Honour observed at page 12:

“In any event, his own evidence makes nonsense of the defence.”

His Honour made observations as to a “misapprehension” that the defendant held, and referred to the “patent improbabilities” of the defendant’s version of events (pages 13 and 14).

His Honour asked the defendant to set out in writing precisely the acts and statements relied upon by him as evidence of the alleged conspiracy. After analysing that document, his Honour observed at page 16:

“In my opinion, a reading of the document provided by the defendant demonstrates the flimsiness of the basis of the allegations of fraud and conspiracy. I should state that I regard these allegations as wild and wholly unsubstantiated.”

By Notice of Appeal dated 17 March 1997 (Proceeding [21]), Mr Weston appealed from Southwell J’s judgment.[116] Amongst other grounds in that notice was the following:

“The trial judge acted with bias to assist the respondents cause by tricking the Appellant into withdrawing his claim to privilege to the evidence of his former solicitor Peter Julian Connor.”

[116]HM-77.

By summons dated 24 March 1997, filed on 10 April 1997 (Proceeding [10]), in Supreme Court Proceeding No 10255 of 1992 (Proceeding [5]), Mr Weston sought an order that that proceeding, which had been discontinued on 11 November 1992, be continued, together with certain other orders.[117] This constitutes the second attempt to revive the discontinued appeal in Proceeding [5]. The first attempt was the originating motion filed 5 August 1993 (Proceeding [8]) in relation to which no step was taken. Proceeding [10] was dismissed by the Court of Appeal on 18 April 1997.[118]
[117]HM-42.
[118]HM-43.

The Attorney-General submitted that Proceeding [10] was vexatious. Mr Weston’s explanation to me for this second attempt to revive the discontinued appeal relating to the s 58(3) application was to say, “10 years down the track you find out that they were going to split the farm up between them”,[119] a reference to a conspiracy later alleged by Mr Weston in other proceedings. Mr Weston also told me that in the hearing Winneke P had offered him leave to appeal against the substantive AAT decision (Proceeding [1]) out of time but that he had rejected that offer. Mr Weston told me, “I didn’t want to appeal the whole thing out of time, I just wanted this costs situation rectified and that was it”.[120] The attempt to revive the discontinued s 58(3) appeal was in substance an attempt to appeal or re-litigate a matter otherwise finally determined. It was utterly hopeless. Mr Weston's explanation does not relevantly bear on this conclusion. I find that Proceeding [10] was a vexatious proceeding.
[119]Transcript 190.
[120]Transcript 188-189.

[177]Transcript 222.

In relation to Judge Dove, Mr Weston made the following statements:

“I really regret now that I did not force Judge Dove to disqualify himself but anyway, that’s water under the bridge.[178]
…
What I said to you yesterday was that I really do now regret not forcing him to disqualify himself when he revealed that he was stopping in Rutherglen. I say this – just don’t, please. . . .
It matters because he has a preference to that town and their wines. . . .
One of the things discussed was that the trial judge was up in Rutherglen enjoying himself when allegations had been made by that town that I had tried to kill my own son and everyone that I talked to said the thing stinks.”[179]

[178]Transcript 6.

[179]Transcript 247-248.

I then had the following exchange with Mr Weston about Judge Dove:

“His Honour: . . . you were given a year, or the best part of a year, and the judge, on my reading of it, seems to have been very kindly disposed towards you.
Mr Weston: That’s probably the trap I fell for.”[180]

[180]Transcript 248.

In addition to the proceeding which Mr Weston has foreshadowed, in the course of his submissions he also referred to yet another proceeding that he had attempted to bring, apparently unsuccessfully. He said:

“I haven’t produced it but there has been an attempt to prepare a statement of claim against a large number of most of the judges of the Court of Appeal. It was taken to the Prothonotary once and he said: ‘You are leaving out one key element.’ There is nothing – no precedent in Australia but there is – I think a litigant in person in a similar situation to me in New Zealand succeeded in getting his home back or something.”[181]
[181]Transcript 200.

Have the requirements of section 21 been met?

Mr Weston is a person who has instituted vexatious legal proceedings. The proceedings to which I refer are Proceeding [3], [10], [11], [12], [13], [14], [17], [18], [19], [20], [22], [28] and the application in Proceeding [16] to set aside Judge McNab’s order. These proceedings were vexatious because they were utterly hopeless.

His hopeless allegations are often of a most serious character. In this respect I particularly refer to his counterclaims against Connor (Proceeding [17]) and Bannister and Hartnett (Proceeding [20]), and to the Connor appeal (Proceeding [18]).

Mr Weston is a person who habitually and persistently institutes vexatious legal proceedings. He brings unmeritorious counterclaims and appeals as a matter of course. He prosecutes his vexatious proceedings with determination in the face of strike-outs and judgments against him. He repeatedly attempts to “revive” applications already dismissed. The habitual and persistent character of his conduct is best revealed by Proceedings [19] and [22], by Proceeding [10], by Proceedings [11], [12] and [13], and by Proceeding [28].

Should the order be made?

The requirements of s 21 have been met. The orders sought by the Attorney-General should be made. This is because of the number of vexatious proceedings instituted and the nature of the allegations made in those proceedings. I observed earlier that his allegations had more recently moved into the realm of the bizarre. In the High Court his allegations have become both bizarre and threatening. It seems to me to be very likely that, unless restrained, Mr Weston will continue to institute vexatious legal proceedings and, indeed, the likelihood is that those proceedings will become increasingly vexatious in the future. Mr Weston has responded to the adverse decisions against him by escalating the seriousness of the allegations which he makes and by widening the circle of persons against whom he makes those allegations. The material before me leads me to conclude that it is very likely that, unless he is restrained, that process will continue.

The foreshadowed new proceeding

As indicated earlier, Mr Weston has made submissions that I have treated as being either directed towards having his foreshadowed new proceeding excised from the order, or directed towards giving him leave now to bring that proceeding. The proposed new proceeding is closely related to Proceeding [14], which was the subject of the orders of Balmford J and subsequently the Court of Appeal constituted by Buchanan and Chernov JJA (Proceeding [15]), and which is the subject of the pending special leave application to the High Court. In view of this close association, it is necessary to say something more about the allegations that were made in Proceeding [14].

Proceeding [14] was issued by Mr Weston in January 2000 in this Court against the Shire; its solicitor, Mr Melville; and others. The last version of the statement of claim in that proceeding was dated 26 May 2000.[182] In that statement of claim, Mr Weston alleged that the judgment obtained in the County Court by the Shire for its costs had been obtained by fraud.
[182]MW 35.

In this respect it was alleged:

·    that Mr Tilleard’s evidence in the AAT in 1990 was the basis upon which the AAT had dismissed the claim and ordered the Westons to pay costs (paras 4-8);
·    that the Shire and Mr Melville had irregularly entered judgment for the costs “wrongly” and “fraudulently” (para 9);
·    that a writ had been issued, being MC930819, and summary judgment had been obtained which was executed (paras 10-11);
·    that Mr Weston had since discovered that Mr Tilleard’s evidence to the AAT had been untrue (Para 12);
·    that the untrue evidence constitutes the making of fraudulent representations and is demonstrative of a failure to provide proper discovery (this is my construction of the allegations in para 13); and
·    that, by reason of the aforesaid, the judgment obtained in the County Court in MC930819 “was obtained by fraud”.

It was then alleged that Mr Weston had what is called “a right of action in solicitor fraud” against Mr Melville (paras 15-17). Wrongdoing was also alleged against Mr Melville relating to:

·    discovery in the AAT proceeding;
·    the process of recovering on the judgment in MC930819;
·    letters written concerning Mr Weston;
·    conduct during the AAT hearing in 1990;
·    evidence given at the hearing at the Magistrates’ Court in Wangaratta in August 1992; and
·    a failure to disclose plans and documents so as to mislead the AAT and so as to result in a mistake being made by the County Court, whereby judgment had been entered against Mr Weston (paras 17-19B and particulars thereunder).
Damages were claimed for economic loss totalling, by Mr Weston’s calculations, $68,398,938.00 (paras 19C-20 and particulars thereunder).

It was then alleged that the conduct complained of had caused deterioration in Mr Weston’s mental health (para 20A). It was further alleged that false briefs to counsel had been prepared which caused loss to Mr Weston (paras 21A-26), and that there had been breaches of a duty of care by Mr Gallagher, the Shire engineer; by the Shire’s expert witness, Mr Tilleard; and by the estate agent on the mortgagee sale, Mr Gillman.

By way of relief Mr Weston sought orders that the judgment in MC930819 be set aside and that all monies paid to the Shire and to Mr Melville be repaid, and also sought damages, interest and costs.

A judgment obtained by fraud may be set aside and a retrial ordered in certain circumstances.[183] The claim made by Mr Weston in Proceeding [14] had the unusual component that it sought to set aside a later judgment based on the obtaining of an earlier judgment by fraud, without seeking to set aside the earlier judgment. The Court of Appeal, when considering Proceeding [14] (Proceeding [15]), did not comment on this unusual aspect of Mr Weston’s claim.[184]
[183]See Wentworth v Rogers (No 5) (1986) 6 NSWLR 534, esp at 538-539 per Kirby P; Hip Foong Hong v H Neotia & Company [1918] AC 888 at 894; Commonwealth Bank of Australia v Quade (1991) 178 CLR 134; McDonald v McDonald (1965) 113 CLR 529.
[184]Weston v Indigo Shire Council [2003] VSCA 134 at [13]-[14].

A draft statement of claim for Mr Weston’s proposed new proceeding was produced by him as Exhibit MW 36. He emphasised to me that this draft required more work but that he did not think it was worth putting time and effort into it until he knew whether he would have leave to issue it or not.[185] Like Proceeding [14], the draft seeks, among other things, to set aside the judgment in the Shire’s favour in County Court Proceeding MC930819. While the allegations made in the proposed statement of claim differ somewhat from those made in Proceeding [14], the damages claimed and the other relief sought appear to be very much the same, if not identical. In fact, Mr Weston told me that substantial parts of the portion of the draft statement of claim dealing with damages and relief had been copied over by him from the statement of claim in Proceeding [14].[186] Mr Weston expressed the view that in issuing the new proceeding he would be doing no more than following Balmford J’s suggestion, in the transcript passage which I quoted earlier.[187]
[185]Transcript 221.
[186]Transcript 221.
[187]Transcript 41-42, 150, 203.

The proposed new proceeding alleges five conspiracies. The proposed defendants are:

·    the Shire of Rutherglen, now known as the Indigo Shire (first defendant);
·    Mr Melville, the Shire solicitor (second defendant);
·    Mr Gallagher, the Shire engineer (third defendant);
·    Mr Tilleard, the expert witness for the Shire (fourth defendant);
·    the former councillors of the Rutherglen Shire in 1991 (the fifth to fourteenth defendants);
·    Mr Weston’s adjoining land owners (the fifteenth to twentieth defendants); and
·    senior and junior counsel for the Shire in the proceeding before Judge Dove (the twenty first and twenty second defendants).

In brief summary, the five conspiracies alleged are:

(1)The first four defendants conspired to pervert the course of justice during the AAT proceeding by deliberately filing documents late, by failing to discover relevant documents (being aerial photographs taken in 1974 and 1975), and by preparing a false engineering report.
(2)The first three defendants conspired to defraud and injure Mr Weston on 25 September 1992 by concealing the flooding taking place at that time and then by concealing the aerial survey of the flooding undertaken at that time.
(3)In November 1992 the first three defendants conspired to defraud and injure the plaintiff by depriving him of his home, farming property and family as a result of the irregular entry of judgment against the plaintiff.
(4)In February 1993 the first three defendants and the fifth to twentieth defendants conspired to defraud and injure the plaintiff by depriving him of his home, his farm and his family by issuing the County Court costs recovery proceeding and by resolving to pursue the recovery of costs.
(5)In December 2000 and January 2001 the first, second, third, twenty-first and twenty-second defendants conspired to defraud and injure Mr Weston by perverting the course of justice during the hearing before Judge Dove. The complaints in this regard are the instructions to attend the hearing of the counterclaim and to oppose it, and concealing from the plaintiff relevant documents.

None of the material that I have seen suggests to me that there is any proper basis for any of the conspiracies alleged. Further, there is no basis upon which the wrongs alleged could give rise to much of the losses which Mr Weston seeks to recover. The material I have does not justify the granting of leave or the excision from the order of the proposed proceeding.

It does seem to me to be possible that there might be a proper basis upon which the original 1991 AAT decision might be sought to be set aside on the basis of a significant failure to discover relevant documents, but on the present material it is impossible to say. The photographs taken in 1974 and 1975, which Mr Weston particularly relies upon in this regard, may have been relevant to the AAT hearing. That, in itself, would not be enough. Aside from any other requirements, it would also be necessary to establish, at least as a real possibility, that the opposite result would have been reached on the basis of the documents not discovered.[188] Mr Weston’s explanation to me of the relevance of the photographs taken in the mid 1970s did not reveal to me how he would establish that they would have been likely to change the result.[189] Mr Weston concentrated his submissions on a photograph which was not a photograph of the relevant area at all, but rather was of flooding some 20 miles distant from the relevant area, showing damage which Mr Weston indicated was the type of damage he and his wife had been concerned to avoid in their own area.[190]
[188]See Commonwealth Bank of Australia v Quade (1991) 178 CLR 134.
[189]See Transcript 231-232.
[190]Transcript 231-232.

Mr Weston did say to me that the allegedly concealed photographs (being both the photographs taken in the mid 1970s and further photographs taken in 1992) indicated that the effect of the Escort Bridge drain was not as dramatic as the council’s witnesses had indicated that it was in the AAT hearing.[191] Whilst the effect of the Escort Bridge drain was referred to in the AAT’s reasons, I do not read the reasons as indicating that that issue was necessarily critical.
[191]Transcript 232-233.

I do not rule out the possibility that Mr Weston may be able to devise a proper claim based on a failure to give proper discovery in the 1990-91 AAT proceeding. I would not be prepared to grant leave to issue such a proceeding unless the allegations were properly pleaded and were supported by at least some credible material which was independent of Mr Weston.

The proposed statement of claim (MW 36) remains incomplete on its face, and Mr Weston is still unsure who the parties to the proceeding ought to be.[192] Even if the other concerns I have referred to did not exist, leave ought not to be given to issue the proposed proceeding until a complete statement of claim is produced.
[192]Transcript 216-217, 221-222.

Orders

I order that:

1.Pursuant to s 21 of the Supreme Court Act 1986, the defendant Michael Weston be declared a vexatious litigant.
2.The defendant Michael Weston must not without leave of the Court do the following:
(a)continue any legal proceedings (whether civil or criminal) in the Court, an inferior court or any tribunal constituted or presided over by a person who is a barrister and solicitor of the Court; or
(b)commence any legal proceedings (whether civil or criminal) in the Court, an inferior court or any tribunal constituted or presided over by a person who is a barrister and solicitor of the Court.

I will hear the parties on the question of costs.

Annexure

Table of Proceedings involving Mr Weston

Attorney-General’s Proceeding Number
Date of issue Exhibit Court Proceeding No Description

1 1989 HM-1 (decision HM-2) AAT C/89/2035 First water damage claim (Weston v Shire of Rutherglen)

2 16 December 1991 HM-3 (decision HM-5) AAT C/89/2035 S 58(3) of the Planning Appeals Act 1980 application (Weston v Shire of Rutherglen)

3 4 September 1992 HM-4 (decision HM-7) AAT C/89/2035 S 49A of the Administrative Appeals Act 1984 (slip rule) application (Weston v Shire of Rutherglen)

4 14 September 1992 HM-9 (decision HM-9A) VSC, FC 9660 of 1992 First application for leave to appeal out of time against the decision in the first water damage claim (Weston v Shire of Rutherglen)

5 16 October 1992 HM-10 (discontinuance HM-11) VSC, FC 10255 of 1992 First appeal against the determination of the s 58(3) proceeding (Weston v Shire of Rutherglen)

6 12 October 1992 HM-12 (withdrawal HM-14) AAT 92/34669 Second water damage claim (Weston v Shire of Rutherglen)

7 19 May 1993 HM-16A, HM-17, HM-17A, HM-18 (decision Judge Lewis HM-19),
HM-20 (decision Judge Higgins HM-21),
HM-22, HM-25 (decision of Full Court HM-26)
HM-23 (decision Judge Curtain HM-23A, HM-24), HM-27, HM-28 (further decision Judge Lewis HM-28A), HM-29, HM-30 (decision Judge Harbison HM-31), HM-32, HM-33, HM-34, (decision Judge Shelton HM-35), HM-36 (decision Judge Harbison HM-36A)
CCV

VSC, FC
MC930819 of 1993;
5127 of 1994
Counterclaim against the Shire (Shire of Rutherglen v Weston), including appeal on interlocutory orders

8 5 August 1993 HM-37 VSC, FC 7872 of 1993 Application for leave to continue discontinued appeal against determination in the s 58(3) proceeding (Weston v Shire of Rutherglen)

9 3 May 1994 HM-38 (decision HM-39) VSC 5757 of 1994 Application for judicial review of decision of Judge Curtain in Proceeding [7] (Weston v Shire of Rutherglen) (decision of Beach J)

10 10 April 1997 HM-42, HM-43, HM-44 VSC, CA 10255 of 1992 Application for order allowing continuation of discontinued appeal against determination in the s 58(3) proceeding (Weston v Indigo Shire Council)

11 7 May 1998 HM-45 (decision HM-47) VSC, CA 9660 of 1992 Further application for leave to appeal in relation to the first water damage claim (Weston v Indigo Shire Council)

12 7 May 1998 HM-45 (decision HM-47) VSC, CA 10255 of 1992 Third application for leave to continue discontinued appeal in s 58(3) proceeding (Weston v Indigo Shire Council)

13 7 May 1998 HM-45 (decision HM-47) VSC, CA 5625 of 1998 Application for leave to appeal against costs and other orders in Proceeding [7] (Weston v Indigo Shire Council)

14 11 January 2000 HM-49,
HM-49A‑N VSC 4029 of 2000 Proceeding against the Shire, Melville, experts and others (Weston v Indigo Shire Council)

15 15 June 2001 HM-49O (appeal), MW 35 VSC, CA
HCA 4029 of 2000 Appeal against the decision of Balmford J in Proceeding [14] (Weston v Indigo Shire Council)

16 24 March 1992 HM-50; HM-51; HM-52; HM-53 MCV
CCV 3 of 1992
MC924855 of 1992 Counterclaim against Dawes & Vary (Dawes & Vary v Weston; Dawes & Vary Stewart v Weston)

17 31 March 1995
HM-55 (original writ HM-54);
HM-58; HM-59; HM-60; HM-61; HM-62; HM-63
VSC 1300 of 1995 Counterclaim against Connor (Connor v Weston)

18 14 November 1996 HM-64 (decision HM-65), (appeal to HCA HM-66) VSC, CA 1300 of 1995 Appeal against decision of Ashley J in Proceeding [17] (Connor v Weston)

19 24 March 1998 HM-67 (decision HM-68) VSC 1300 of 1995 Application to vacate judgment in Proceeding [17] (Connor v Weston)

20 11 January 1996 HM-69 - HM-76 VSC 8399 of 1995 Counterclaim against Price Higgins (Bannister v Weston)

21 17 March 1997 HM-77 (decision HM-78) (leave to appeal in HCA HM-79 - HM-81) VSC 8399 of 1995 Appeal against judgment of Southwell J in Proceeding [20] (Bannister v Weston)

22 24 March 1998 HM-82 (decision HM-68) VSC 8399 of 1995 Application to vacate judgment of Southwell J in Proceeding [20] (Bannister v Weston)

23 23 September 1996 HM-83 (decision HM-85) VSC 7349 of 1996 First firearms proceeding (Weston v McGrane)

24 14 February 1997 HM-84 (decision HM-85) VSC 4391 of 1997 Second firearms proceeding (Weston v McCarthy)

25 14 July 1997 HM-86 VSC, CA 7349 of 1996 Appeal against decision in the first firearms proceeding (Weston v McGrane)

26 14 July 1997 HM-86 VSC, CA 4391 of 1997 Appeal against decision in the second firearms proceeding (Weston v McCarthy)

27 5 February 1998 HM-88 (decision HMcA-1) CCV 0512 of 1998 False arrest and malicious prosecution claim against police (Weston v Wilson)

28 21 August 2001 HM-89, HM-90 VSC, CA 9660 of 1992 Further application for leave to appeal against decision in the first water damage claim and to "revive" the s 58(3) appeal (Weston v Indigo Shire Council)

Attorney-General’s Proceeding Number	Date of issue	Exhibit	Court	Proceeding No	Description
1	1989	HM-1 (decision HM-2)	AAT	C/89/2035	First water damage claim (Weston v Shire of Rutherglen)
2	16 December 1991	HM-3 (decision HM-5)	AAT	C/89/2035	S 58(3) of the Planning Appeals Act 1980 application (Weston v Shire of Rutherglen)
3	4 September 1992	HM-4 (decision HM-7)	AAT	C/89/2035	S 49A of the Administrative Appeals Act 1984 (slip rule) application (Weston v Shire of Rutherglen)
4	14 September 1992	HM-9 (decision HM-9A)	VSC, FC	9660 of 1992	First application for leave to appeal out of time against the decision in the first water damage claim (Weston v Shire of Rutherglen)
5	16 October 1992	HM-10 (discontinuance HM-11)	VSC, FC	10255 of 1992	First appeal against the determination of the s 58(3) proceeding (Weston v Shire of Rutherglen)
6	12 October 1992	HM-12 (withdrawal HM-14)	AAT	92/34669	Second water damage claim (Weston v Shire of Rutherglen)
7	19 May 1993	HM-16A, HM-17, HM-17A, HM-18 (decision Judge Lewis HM-19), HM-20 (decision Judge Higgins HM-21), HM-22, HM-25 (decision of Full Court HM-26) HM-23 (decision Judge Curtain HM-23A, HM-24), HM-27, HM-28 (further decision Judge Lewis HM-28A), HM-29, HM-30 (decision Judge Harbison HM-31), HM-32, HM-33, HM-34, (decision Judge Shelton HM-35), HM-36 (decision Judge Harbison HM-36A)	CCV VSC, FC	MC930819 of 1993; 5127 of 1994	Counterclaim against the Shire (Shire of Rutherglen v Weston), including appeal on interlocutory orders
8	5 August 1993	HM-37	VSC, FC	7872 of 1993	Application for leave to continue discontinued appeal against determination in the s 58(3) proceeding (Weston v Shire of Rutherglen)
9	3 May 1994	HM-38 (decision HM-39)	VSC	5757 of 1994	Application for judicial review of decision of Judge Curtain in Proceeding [7] (Weston v Shire of Rutherglen) (decision of Beach J)
10	10 April 1997	HM-42, HM-43, HM-44	VSC, CA	10255 of 1992	Application for order allowing continuation of discontinued appeal against determination in the s 58(3) proceeding (Weston v Indigo Shire Council)
11	7 May 1998	HM-45 (decision HM-47)	VSC, CA	9660 of 1992	Further application for leave to appeal in relation to the first water damage claim (Weston v Indigo Shire Council)
12	7 May 1998	HM-45 (decision HM-47)	VSC, CA	10255 of 1992	Third application for leave to continue discontinued appeal in s 58(3) proceeding (Weston v Indigo Shire Council)
13	7 May 1998	HM-45 (decision HM-47)	VSC, CA	5625 of 1998	Application for leave to appeal against costs and other orders in Proceeding [7] (Weston v Indigo Shire Council)
14	11 January 2000	HM-49, HM-49A‑N	VSC	4029 of 2000	Proceeding against the Shire, Melville, experts and others (Weston v Indigo Shire Council)
15	15 June 2001	HM-49O (appeal), MW 35	VSC, CA HCA	4029 of 2000	Appeal against the decision of Balmford J in Proceeding [14] (Weston v Indigo Shire Council)
16	24 March 1992	HM-50; HM-51; HM-52; HM-53	MCV CCV	3 of 1992 MC924855 of 1992	Counterclaim against Dawes & Vary (Dawes & Vary v Weston; Dawes & Vary Stewart v Weston)
17	31 March 1995	HM-55 (original writ HM-54); HM-58; HM-59; HM-60; HM-61; HM-62; HM-63	VSC	1300 of 1995	Counterclaim against Connor (Connor v Weston)
18	14 November 1996	HM-64 (decision HM-65), (appeal to HCA HM-66)	VSC, CA	1300 of 1995	Appeal against decision of Ashley J in Proceeding [17] (Connor v Weston)
19	24 March 1998	HM-67 (decision HM-68)	VSC	1300 of 1995	Application to vacate judgment in Proceeding [17] (Connor v Weston)
20	11 January 1996	HM-69 - HM-76	VSC	8399 of 1995	Counterclaim against Price Higgins (Bannister v Weston)
21	17 March 1997	HM-77 (decision HM-78) (leave to appeal in HCA HM-79 - HM-81)	VSC	8399 of 1995	Appeal against judgment of Southwell J in Proceeding [20] (Bannister v Weston)
22	24 March 1998	HM-82 (decision HM-68)	VSC	8399 of 1995	Application to vacate judgment of Southwell J in Proceeding [20] (Bannister v Weston)
23	23 September 1996	HM-83 (decision HM-85)	VSC	7349 of 1996	First firearms proceeding (Weston v McGrane)
24	14 February 1997	HM-84 (decision HM-85)	VSC	4391 of 1997	Second firearms proceeding (Weston v McCarthy)
25	14 July 1997	HM-86	VSC, CA	7349 of 1996	Appeal against decision in the first firearms proceeding (Weston v McGrane)
26	14 July 1997	HM-86	VSC, CA	4391 of 1997	Appeal against decision in the second firearms proceeding (Weston v McCarthy)
27	5 February 1998	HM-88 (decision HMcA-1)	CCV	0512 of 1998	False arrest and malicious prosecution claim against police (Weston v Wilson)
28	21 August 2001	HM-89, HM-90	VSC, CA	9660 of 1992	Further application for leave to appeal against decision in the first water damage claim and to "revive" the s 58(3) appeal (Weston v Indigo Shire Council)

[L1]

[2004] VSC 314

27 August 2004