Attorney-General for the State of Victoria v Weston
[2002] VSC 142
•23 April 2002
| 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: | Byrne J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 April 2002 | |
DATE OF RULING: | 23 April 2002 | |
CASE MAY BE CITED AS: | Attorney-General for the State of Victoria v Weston | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 142 | |
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Practice and procedure – vexatious or oppressive proceeding – proposed claim an abuse of process.
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APPEARANCES: | Counsel | Solicitors | |
| For the Plaintiff | Mr D. Masel | Victorian Government Solicitor | |
| The Defendant appeared in person | |||
HIS HONOUR:
This is an application brought by summons filed on 13 March 2002 by the defendant, Michael Weston, in this proceeding, brought by the Attorney-General for the State of Victoria. This proceeding is brought pursuant to s. 21 of the Supreme Court Act 1986 seeking to have Mr Weston declared a vexatious litigant. The matter came before the court late last year, and on 4 October Mr Weston gave an undertaking to the court in substance to the effect that he would not commence "any legal proceeding (including the proceeding in the nature of an appeal in an existing proceeding) in this court, an inferior court or a tribunal constituted or presided over by a person who is a barrister and solicitor of the court". There were certain exceptions to that undertaking with which I am not concerned.
The summons seeks that Mr Weston be released from this undertaking inasmuch as it is necessary to do so, for him to commence a proceeding against John Bruce Bannister and Justin John Hartnett and others in the terms of a written statement of claim which is Exhibit MWC to Mr Weston's affidavit of 13 March 2002.
The summons also seeks that he be released from his undertaking in respect of other litigation, and these are set out in paragraphs 2, 3 and 4 of the summons. I was told at the outset that these applications were not pursued, either because they were not necessary or for some other reason and I am not concerned with them.
So the question that falls for my determination at this stage is whether Mr Weston should be permitted, given the terms of his undertaking, to issue the proposed proceeding against Mr Bannister and Mr Hartnett. The test that I apply is whether the bringing of the proceeding against these defendants would be an abuse of the process of the court. If I am satisfied that it is, then the release of the undertaking sought should be refused.
In order to understand the nature of the proceeding which is proposed it is necessary to step somewhat back in time. Some years ago, possibly in the early 90s, Mr Weston, possibly with his wife, conducted a farm near Rutherglen in Victoria. He had disputes and differences with the local shire council as a result of which proceedings were brought by either him or the council in the AAT. He was unsuccessful. He had, as a consequence, to pay to the shire a substantial sum of money by way of costs. The figure of $100,000 was mentioned in the course of discussion. He had an existing mortgage over his property and it seems that in 1994 he borrowed a sum of money from Messrs Bannister and Hartnett who then carried on practice as solicitors under the name of Price Higgins in Geelong.
At this time, having lost the proceeding in the AAT, Mr Weston was suing the solicitors who had acted for him, alleging that they were negligent. This negligence proceeding was on foot at the time the loan was being negotiated some time in June 1994 with the trial expected to commence very shortly. The shire had issued a warrant out to recover its costs against the farm property. Mr Weston in this rather delicate position borrowed the money from Mr Bannister and Mr Hartnett and used it to satisfy the claim for costs incurred at the AAT.
The chronology at this time is significant. Going from what Mr Weston told me in the course of argument, late in June of 1994 there was on foot some discussion between the solicitors engaged by the parties in his negligence proceeding against his former solicitors. The negligence proceeding was, he tells me, settled on 4 July 1994. The loan which had been granted a few days earlier was provided on 7 July 1994, and the mortgage was duly registered. Mr Weston says that he was unable to make payments under the mortgage and in due course the mortgagees, Messrs Bannister and Hartnett, sought possession of the mortgaged property.
They did this in a proceeding Number 8399 of 1995 in this court. In due course the proceeding by Messrs Bannister and Hartnett against Mr Weston for possession came on for trial before Mr Justice Southwell in March 1997. His Honour gave judgment after a trial of five days, the judgment being dated 13 March 1997. The plaintiffs in that case, the mortgagees, were successful and orders for possession and for payment of a sum approximating half a million dollars were made against Mr Weston on 18 March 1997. In due course the successful mortgagees obtained possession of the land, the property was sold and Mr Weston is no longer in possession.
Mr Weston, it seems, engaged in other litigation arising out of the dispute with the Shire which dated from the early 90s, including a long trial in the County Court before His Honour Judge Dove, a trial which ran for some 125 days. In the course of that trial, I was told it was in January 2001, a document came to light which suggested that the mortgagees, that is to say, Messrs Hartnett and Bannister were aware that negotiations were on foot on 4 July 1994 with a view to settling a claim of Mr Weston against his former solicitors. It is this document and its contents which cause Mr Weston to want to sue the mortgagees.
Mr Weston before me says that he wishes to proceed against the mortgagees to "set aside the judgment of 18 March 1997." This clearly cannot be done, because the judgment has been executed, the property has been delivered to the mortgagees, and sold. There can be no question of unscrambling that egg. The claim that Mr Weston would bring is therefore essentially a claim for damages. In his statement of claim he sets out sums which he claims for damages which total approximately $46,500,000.
The statement of claim has been prepared by Mr Weston apparently without the benefit of legal advice, and he accepted candidly before me that it needed tidying up. The claim is on its face to be brought against Messrs Bannister and Hartnett, and others as per schedule. The schedule is not attached to the draft writ and following my enquiry Mr Weston told me that, depending on the documents that might come to light, he had in mind adding Dr Hanscombe, the barrister who acted for the mortgagees at the trial before Southwell J, and also a firm of solicitors Phillips Fox, again, depending upon the material that might come to light.
My task, as I have said, is to determine whether the bringing of this claim and its prosecution would amount to an abuse of process. To a large extent for this purpose I must have regard to the text of the statement of claim. I am also informed by the material that Mr Weston has provided in the affidavits filed in support, his affidavit of 4 April 2002 and his affidavit of 13 March 2002 and the exhibits, together with the further information that he has provided from the Bar table in the course of argument.
What is alleged essentially against the proposed defendants is that they fraudulently failed to make total discovery in the proceeding before Mr Justice Southwell. In particular, reference is made to a file note of 4 July 1994, which is Exhibit MWD to Mr Weston's affidavit of 13 March 2002. This is the file note to which I have referred and which shows, Mr Weston says, that Mr Bannister and Mr Hartnett, or one of them, was aware that there were negotiations on foot with respect to the claim against Mr Weston's former solicitors and that they had this knowledge before the mortgage loan was entered into.
It is put that the failure to disclose this in discovery was a fraud, and that the consequence is that he ought to be able to proceed against Hartnett and Bannister to set aside the judgment that was obtained in this way by fraud.
I assume for the purposes of this debate, without making any finding on the matter, that the document in question was not discovered. The significance of the document, however, is of critical importance because if it is not a document which might affect the decision in the proceeding of 1997, then its non-disclosure can hardly warrant the proceeding which is currently proposed.
In forming a view about this, I must have regard to not only the text of the statement of claim, but also what I have been told underlies the statement of claim and what in his own words Mr Weston has explained as being the nature of the claim that he would like to bring against the mortgagees.
I have heard what he said. For the purpose of this application I accept that the factual allegations which he makes may be proved. These are that the document was not discovered; that the conversation which the document records did in fact take place; that the conversation was accurately recorded; that it was made at a time on which it is dated, namely 4 July 1994; and further that it was made in the context of the events which he described to me and which I have briefly summarised above, namely the granting of the loan in which the mortgage was given as security.
It seems to me that on no basis could the production of that document have affected the court’s decision for possession of the property. I have read with care the reasons of Southwell J which are before me, and I have sought to put the document in question and what Mr Weston has said about it in the context of the case that his Honour described.
I am driven to the conclusion that the claim that Mr Weston would bring against Mr Bannister and Mr Hartnett is of a kind which is properly described as an abuse of process, in the sense that it is a claim that is doomed to fail. It is a claim which therefore cannot be permitted to go forward. Accordingly the application will be dismissed.
HIS HONOUR: Are there any further orders sought?
MR MASEL: I seek an order that the plaintiff's costs be reserved.
HIS HONOUR: Yes. Do you want to say anything about that, Mr Weston?
MR WESTON: No, Your Honour.
HIS HONOUR: The costs of the plaintiff, the Attorney, the respondent to this application, will be reserved. Application brought by summons filed on 13 March 2002 by the defendant is dismissed, the costs of the plaintiff reserved.
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