Attorney-General for the State of Victoria v Weston (No 2)
[2002] VSC 41
•19 February 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 7711 of 2001
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| MICHAEL WESTON | Defendant |
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JUDGE: | McDONALD, J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 February 2002 | |
DATE OF JUDGMENT: | 19 February 2002 | |
CASE MAY BE CITED AS: | The Attorney-General for the State of Victoria v Weston (No. 2) | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 41 | |
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Application by plaintiff to have defendant declared a vexatious litigant – Undertaking given by defendant on return of interlocutory application not to institute proceedings in court without leave of Court – Application for leave to institute appeal against judgment and orders following trial in County Court – Test applied – Defendant granted leave to take steps to institute appeal.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J. McArdle (Solicitor) | Victorian Government Solicitor |
| For the Defendant | (In person) |
HIS HONOUR:
On 25 September 2001 the Attorney-General for the State of Victoria commenced proceedings in this court by originating motion against the defendant Weston, whereby the plaintiff made application to the court pursuant to s.21 of the Supreme Court Act 1986 seeking an order that the defendant Weston be declared a vexatious litigant. There was also filed that day on behalf of the plaintiff, a summons on the originating motion. There was further filed on 1 October 2001, a further amended summons amended by leave of a Master.
As part of the relief sought by the summons on the originating motion, the plaintiff the Attorney-General, sought an interlocutory order restraining the defendant, pending the hearing and determination of the proceeding, from commencing any proceeding in this court in an inferior court or in a tribunal constituted or presided over by a person who is a barrister and solicitor of the court, without leave of the court.
On 4 October 2001, that interlocutory proceeding came on for hearing before this court. On that day the defendant gave an undertaking to the court as follows:
“(1)Save as provided in paragraphs 2 and 3 of this undertaking until the trial and determination of this proceeding, I will not commence any legal proceeding (including a proceeding in the nature of an appeal in an existing legal 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;
(2)It is understood and accepted that paragraph 1 of this undertaking does not operate to prevent me obtaining and enforcing by issue of warrants of seizure and sale any orders of judgment which I may hereafter be awarded in the following proceedings already commenced by me, namely;
(a)the counterclaim in proceeding No.MC930819 of 1993 in the County Court of Victoria at Melbourne wherein the plaintiff is the President, Councillors and ratepayers of the Shire of Rutherglen, and Michael Weston and Patricia Weston are the defendants;
(b)proceeding No.0512 of 1998 in the County Court of Victoria at Wangaratta wherein the plaintiff is Michael Weston and Robin Wilson & ors are the defendants;
(c)the appeal in proceeding No.4029 of 2000 in the Supreme Court of Victoria Common Law Division wherein Michael Weston is the appellant and the Indigo Shire Council, formerly the President, Councillors and ratepayers of the Shire of Rutherglen & Ors are respondents;
(3)It is understood and accepted that notwithstanding paragraph 1 of this undertaking, I may commence any legal proceeding as I may hereafter be granted leave to commence upon an application being made to the court to be released from this undertaking.”
On such undertakings being given by the defendant on that day, it was ordered that the application of the plaintiff, the Attorney-General for the State of Victoria, for an interlocutory injunction, be struck out, reserving liberty to apply.
The proceedings referred to in paragraphs 2(a) and 2(b) of the undertaking given by Weston were proceedings which were then before the County Court. The trial of the proceedings had at that time been completed before His Honour Judge Dove of the County Court, and as at 4 October 2001 the decision of His Honour was then reserved.
On 30 January 2002, His Honour Judge Dove delivered his judgment and made orders in respect of those proceedings. I do not have a copy of the orders made by His Honour Judge Dove on 30 January 2002. However, I understand that the orders made by him on that day were consistent with and followed the reasons for judgment expressed by His Honour in his judgment. I understand that in the County Court proceeding wherein the defendant Weston was the plaintiff on the counterclaim, namely proceeding No.MC930819 of 1993, the counterclaim of the defendant Weston was dismissed. I understand also that in proceeding No.0512 of 1998 wherein the present defendant Weston was the plaintiff and a number of persons were defendants, there was judgment entered against the first four defendants. It also appears from the judgment of His Honour Judge Dove, that the defendant Weston who was the plaintiff in that proceedings, was not successful on parts of the claims made by him.
The defendant Weston now seeks an order of this court to be released from his undertaking given to this court on 4 October 2001 and an order that he be granted leave to institute proceedings by way of appeal against the judgment in the proceeding No.MC930819 of 1993 wherein the counterclaim was dismissed, and also seeks to institute proceedings by way of appeal in proceeding No.0512 of 1998 in which he was not successful as the plaintiff.
On 15 February 2002 the defendant Weston issued a summons in this court returnable before a Master that day. On 15 February 2002 the Listing Master, being seized with that summons by direction and order, directed and ordered that the summons be referred to a judge of the court for its determination.
On the summons being called on before me this morning, Mr Weston appeared to prosecute his application as made by summons. Mr McArdle appeared on behalf of the plaintiff, the Attorney-General for the State of Victoria. Mr McArdle informed the court that the Attorney-General had only been served with the papers yesterday afternoon. He did not seek any adjournment of the present proceeding before the court.
Mr McArdle further informed the court that the Attorney-General appeared before the court as a matter of courtesy to the court and did not intend to take any part in the proceeding, whether to make submissions in support of, or against the application now made before the court by the defendant Weston.
It is to be seen from the material before the court, and in particular the notice of appeal that is now before the court, that the defendant Weston seeks to institute proceedings in respect of costs orders made in the proceedings before the County Court. However, as I understand from what he has said to the court this morning, such orders have not as yet been made. It is anticipated that they will be made later in this week. Accordingly insofar as the summons now before the court, seeks an order that the defendant Weston have leave to institute proceedings by way of appeal against cost orders adverse to him in the proceedings before the County Court; such application is premature.
The judgment of His Honour Judge Dove delivered on 30 January 2002 comprises some 259 pages. I have read that judgment. It is not for me at this stage to assess the prospects of Weston succeeding on appeal if leave was granted to him to take steps to institute the appeals he now seeks, except to the extent that I shall later refer to. Further, if leave is granted as now sought by Weston, it should not be considered by him that I have any view as to the prospects of the success of the appeals except as to the matter which I shall hereafter address.
Weston has informed the court that he has before this day, and at the time provided by the Rules, served the notices of appeal on the various parties relevant to the appeals he seeks to institute and pursue in each of the County Court proceedings. He further informs the court that he seeks the leave of this court in order that he may file the notices of appeals in accordance with the Rules of Court in order that the appeals may be instituted.
At this time, having read the judgment of His Honour and having read the notice of appeal which has been exhibited by Weston by his affidavit, in my view the questions that must be addressed by me in considering whether the defendant Weston should be released from his undertakings as now sought and be granted leave to take steps to institute his appeals are as follows:
(1)By bringing the appeal, is Weston seeking to harass the respondents to such appeals?
(2)Whether the appeals now sought to be instituted by Weston are an abuse of the process of the court?
(3)On material before the court, can it be said, that if proceedings were brought by way of appeal by Weston, as now sought, would such appeals be manifestly untenable or groundless?
I have determined that in answer to each of those questions, that I consider appropriate to address at this point, that they should be each answered in the negative.
It may be necessary, with respect to the grounds of appeal, for Weston to further amend them at some stage to give further particulars of the same or to identify and highlight the issue he seeks to have litigated on the appeal. Having considered this matter and having determined that each of the questions which I have addressed should be answered in the negative, the conclusion that I have reached is in favour of granting leave as sought by Weston in the application presently before the court. I propose to make orders releasing Weston from his undertaking to such an extent to take such steps as is necessary to institute these appeals against the judgment of His Honour Judge Dove and orders made by him on 30 January 2002 in the proceedings that I have previously referred to.
Accordingly, subject to any submissions that may be hereafter made by Mr Weston or by Mr McArdle on behalf of the Attorney-General, I propose to make and do make the following orders:
(1)That the defendant Weston be released from the undertaking given by him to the court in this proceeding on 4 October 2001 insofar as it is necessary for him to be granted leave to take such steps as is necessary for him to appeal against the judgment of His Honour Judge Dove and orders made by him on 30 January 2002 in the proceeding being the counterclaim in proceeding No.MC930819 of 1993 in the County Court wherein it was ordered that the counterclaim be dismissed, and in proceeding No.0512 of 1998 in the County Court wherein the defendant was not successful in such proceeding.
(2)That the defendant Weston be granted leave to take such steps as is necessary for him to appeal against the judgment of His Honour Judge Dove and orders made by him on 30 January 2002 in the proceeding being the counterclaim in proceeding No.MC930819 of 1993 in the County Court wherein it was ordered that the counterclaim be dismissed, and in proceeding No.0512 of 1998 in the County Court wherein the defendant was not successful in such proceeding.
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