Attorney General in and for the State of New South Wales v Peter Steven Viavattene
[2014] NSWSC 327
•26 March 2014
Supreme Court
New South Wales
Medium Neutral Citation: Attorney General in and for the State of New South Wales v Peter Steven Viavattene [2014] NSWSC 327 Hearing dates: 20 March 2014 Decision date: 26 March 2014 Before: Bellew J Decision: (1) Pursuant to s. 8(7)(b) of the Vexatious Proceedings Act 2008 NSW, the defendant is prohibited from instituting proceedings in New South Wales, without the leave of the court.
(2) Pursuant to s. 8(7)(a) of the Vexatious Proceedings Act 2008 NSW, all proceedings in New South Wales which are already instituted by the defendant, are stayed.
(3) The defendant is to pay the plaintiff's costs.
Catchwords: PROCEDURE - Vexatious Proceedings Act 1988 - whether proceedings brought by defendant are vexatious - whether Court should exercise its discretion in favour of orders prohibiting the defendant from instituting proceedings without leave of the Court, and staying such proceedings as have already been instituted Legislation Cited: Vexatious Proceedings Act 2008 NSW Cases Cited: Attorney-General v Altaranesi [2013] NSWSC 63
Attorney-General v Chan [2011] NSWSC 1315
Attorney-General v Croker [2010] NSWSC 942
Attorney-General in and for the State of New South Wales v Gargan [2010] NSWSC 1192
Attorney-General v Bar Mordecai [2005] NSWSC 142
Attorney-General v Wilson [2010] NSWSC 1008
Attorney General (NSW) v Viavattene [2013] NSWSC 453
Brogden v Attorney-General [2001] NZCA 208
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Pascoe v Liprini [2011] NSWSC 1484
Siteberg Pty Limited v Maples [2010] NSWSC 1344
Viavattene v Health Care Australia Pty Limited [2012] FWA 7407
Viavattene v Health Care Australia Pty Limited [2013] FWC 628
Viavattene v Health Care Australia Pty Limited [2013] FWC 677
Viavattene v Health Care Australia Pty Limited [2013] FWC 756
Viavattene v Health Care Australia Pty Limited [2013] FWC FB 2532
Viavattene v NSW Police [2013] HCASL 88
Attorney-General v Michael [2005] WASC 203
Viavattene v Tweed Shire Council [2013] NSWSC 838Category: Principal judgment Parties: Attorney General in and for the State of New South Wales - Plaintiff
Peter Steven Viavattene - DefendantRepresentation: Counsel:
Mr J S Emmett - Plaintiff
No appearance - Defendant
Solicitors:
Crown Solicitor's Office for New South Wales - Plaintiff
File Number(s): 2012 / 323996 Publication restriction: Nil
Judgment
By summons filed on 18 October 2012 the Attorney General in and for the State of New South Wales seeks the following:
(1) an order pursuant to s. 8(7)(b) of the Vexatious Proceedings Act 2008 ("the Act") prohibiting the defendant from instituting proceedings in New South Wales without the leave of the Court;
(2) an order pursuant to s. 8(7)(a) of the Act staying all proceedings already instituted by the defendant in the State of New South Wales;
(3) costs.
THE HEARING
The matter was listed for hearing before me on 20 and 21 March 2014 when the defendant, having been called several times, did not appear. In seeking that the matter proceed in the defendant's absence counsel for the plaintiff relied upon an affidavit of David Galbraith, solicitor, of 19 March 2014. Annexure L to that affidavit was a file note prepared by Mr Galbraith in relation to the events of 26 September 2013 when the proceedings came before Button J for hearing. The defendant was in custody at that time but appeared before his Honour via audio visual link. Ultimately, his Honour vacated the hearing and listed the matter on 20 and 21 March 2014. He also listed the matter for directions before the Registrar on 24 October 2013.
When the matter came before the Registrar on 24 October 2013 the defendant was still in custody but appeared on that occasion by telephone link. The Registrar made various orders on that day regarding the service of evidence, and confirmed the hearing date of 20 and 21 March 2014.
On 31 October 2012, pursuant to one of the orders made by the Registrar, the Crown solicitor wrote to the Manager of the Grafton Correctional Centre, where the defendant had previously been held, enclosing copies of the evidence to be relied upon by the plaintiff at the hearing and asking that such material be provided to the defendant. That correspondence was returned and a copy which is annexed to Mr Galbraith's affidavit is endorsed with the words:
"Received back at CSO 20/11/13.
Box indicated: Return to sender. No longer in custody."
Mr Galbraith then gave directions to a member of the staff in his office to arrange for the documents to be forwarded to the defendant at a post office box at Murwillumbah. The envelope enclosing that material was later returned to the Crown solicitor's office endorsed "unclaimed".
I am left to infer that at some time following his appearance before the Registrar on 24 October 2013 the defendant was released from custody. I am satisfied that as a consequence of his appearances before Button J (when the present hearing date was set) and before the Registrar (when the date was confirmed) the defendant was clearly aware that the matter was listed for hearing on 20 and 21 March. There is no evidence which explains his absence. For these reasons, I concluded that it was appropriate to proceed with the hearing.
THE EVIDENCE
The plaintiff read three affidavits of Mr Galbraith in support of the orders sought dated 31 January 2013, 18 July 2013 and 19 March 2014 respectively.
Exhibited to those affidavits were a total of 8 volumes of evidentiary material to which counsel for the plaintiff took me in detail. The plaintiff also tendered print outs from JusticeLink detailing proceedings brought by the defendant which are currently pending, the extract of a decision of Kiefel and Keane JJ in the High Court of Australia in the matter of Viavattene v NSW Police [2013] HCA SL 88, and copies of various decisions of Fair Work Australia. All of those documents became Exhibit A in the proceedings.
I am satisfied that the evidence tendered by the plaintiff establishes the following facts.
Proceedings brought by the defendant against Morton and Birch
By summons dated 10 May 2011, the defendant brought proceedings in this court ("the summons proceedings") against Bruce Morton ("Morton") and Evelyn Birch ("Birch") seeking injunctive relief to restrain an alleged trespass over his property. In a separate set of proceedings commenced by statement of claim on 17 May 2011 ("the statement of claim proceedings") the defendant and his wife brought proceedings against Morton and Birch seeking (inter alia) injunctive relief and damages for trespass. The damages which were sought as a result of the alleged trespass totalled $130,690.00. In addition, the statement of claim sought what was described as "economic and non-economic compensation of $1,500,000.00". The pleadings in the statement of claim encompassed four paragraphs, the contents of which did not touch, in any way, upon the latter claim for damages. The statement of claim purported to be verified by an affidavit prepared in the names of, and signed by, both the defendant and his wife.
On 10 June 2011 the defendant sent a lengthy email to the court registry which canvassed the nature of the evidence which he contended supported the proceedings that had been commenced, and which included a request for pro bono legal assistance.
The summons proceedings came before Davies J on 19 July 2011. In a judgment delivered on that day, his Honour set out the nature of the dispute as follows:
"The Plaintiffs' land adjoins the Defendants' land, with the Defendants' land being to the north of the Plaintiffs' land on Numinbah Road in Chillingham. A photograph showed that there is a tarred road with an embankment down on either side of that road which is covered largely in grass. On the eastern side of the tarred road and at the bottom of the embankment there is what appears to be an access track which runs along the front of the house that the Plaintiffs own. That access road leads to a gateway onto the Defendants' land. The Plaintiffs claim that that access roadway runs across their land and is not part of the road reserve of Numinbah Road.
The Defendants' survey of October 2010 shows that at the northerly end of the access track just before the boundary of the Defendants' land, the access track at that time passed across the north western corner of the Plaintiffs' land.
The evidence also discloses that the first Defendant made application to the Tweed Shire Council to build a driveway access to the Defendants' property which would not encroach on the Plaintiffs' land. The variation of the access is shown in a further survey of Landsurv Pty Limited of 30 June 2011. That survey was prepared by Mr Green who, as I have mentioned, has sworn an affidavit on behalf of the Defendants.
The survey, on its face, shows that the gravel track or access way has been altered towards the west at the north-westerly end of the Plaintiffs' property, so that it passes through the gate onto the Defendants' property without encroaching on the Plaintiffs' land. It shows that no part of the access way (as altered) passes over or encroaches on the Plaintiffs' land.
On 28 October 2010 the council approved the application for the access driveway so that it does not encroach upon the Plaintiffs' land in the manner that I have described."
His Honour concluded:
"On the evidence before me there is not a serious question to be tried because the evidence points only to the fact that the existing access roadway does not encroach on the Plaintiffs' land. That, of course, says nothing about whether in the past there has been a trespass for which the Plaintiffs may be entitled to be compensated if it is thought appropriate to do so."
On 15 August 2011, following his Honour's decision, the plaintiffs filed (in both the summons proceedings and the statement of claim proceedings) a document described as "Affidavit of Peter and Beverly Viavattene". The document purported to be a joint affidavit which was in the same form as that which was relied upon to verify the statement of claim.
On 16 August 2011 the defendants filed a notice of motion in both sets of proceedings seeking the joinder of eleven defendants, including Tweed Heads Shire Council and a number of members of the NSW Police Force. That notice of motion was supported by a further "joint affidavit" prepared in the same form to which I previously referred. It contained nothing which properly supported an order for joinder.
Relevantly, on 15 September 2011, in the statement of claim proceedings, a notice of intention to file a notice of ceasing to act was filed by Suzanna Costello of Cronin Shearer Lawyers in Southport, Queensland. A notice of ceasing to act was subsequently filed by Ms Costello on 22 September 2011. I am satisfied in these circumstances that for at least some period between 17 May 2011 (when the statement of claim was filed) and 15 September 2011 (when the notice of intention to file a notice of ceasing to act was filed) the defendant and his wife had the benefit of some legal assistance.
On 9 September 2011 Morton and Birch filed:
(a) a notice of motion seeking that the summons proceedings be dismissed; and
(b) a second notice of motion seeking that:
(i) the statement of claim be struck out;
(ii) summary judgment be entered;
(iii) alternatively, the defendant and his wife provide security for costs.
The two notices of motion came before Latham J on 19 September 2011, at which time the defendant's wife appeared but the defendant himself did not. On that occasion her Honour dismissed the summons proceedings.
In a separate judgment delivered on 22 September 2011 her Honour made orders (inter alia) striking out the statement of claim and ordering the defendant and his wife (as plaintiffs in those proceedings) to provide security for costs. In the course of that judgment her Honour made reference to the "joint affidavit" purporting to verify the statement of claim, describing it (at [4]) as being "in the form of a collusive narrative".
On 3 November 2011 a single notice of appeal, drafted in what could only be described as discursive terms, was filed in respect of the judgments of Davies J and Latham J. On 13 February 2012 the appeal proceedings were discontinued.
The first Local Court proceedings
On 3 November 2010 the police, on behalf of Morton, applied for an Apprehended Personal Violence Order ("AVO") against the defendant. The matter was listed for hearing at the Murwillumbah Local Court on 15 June 2011, at which time the defendant did not appear and an order was made against him in his absence.
On 21 July 2011 the defendant made an application to vary or revoke the order made on 15 June 2011. That application was listed for hearing on 3 August 2011. The grounds for the application included that:
(i) the order was made in the defendant's absence;
(ii) he was prevented from attending due to "accident / illness / misadventure or other circumstances";
(iii) he had been unaware of the original proceedings until they had been completed;
(iv) it was in the interests of justice to annul the order.
On 3 August 2011 there was no appearance of the defendant when the matter came before the Murwillumbah Local Court and the application was dismissed.
On 9 September 2011 the defendant lodged a notice of appeal to the District Court in respect of the order made on 3 August 2011. The appeal was listed for hearing on 10 October 2011 at the District Court at Lismore. The evidence does not disclose the outcome of that appeal.
The second Local Court proceedings
On 18 January 2011 the applicant and his wife jointly made application for an AVO against Jamie Nicholson. The application was supported by a lengthy document in which it was alleged (inter alia) that Jamie Nicholson had thrown rocks towards the defendant's property.
On 31 January 2011 the matter came before the Tweed Heads Local Court and the defendant appeared in person. Because the application was not able to be served it was adjourned for further mention until 11 April 2011. On 11 April 2011 both the defendant and Jamie Nicholson appeared in person. An interim order was made on that occasion and the matter was listed for hearing at the Murwillumbah Local Court on 21 July 2011.
On 20 July 2011 the defendant sent a lengthy email to the Murwillumbah Local Court attaching the evidence upon which he proposed to rely in the proceedings. In that correspondence the defendant said (inter alia):
"As tomorrow is for mention I will supply Nicholson's Barrister copies of the footage once we have been given a hearing date."
When the matter came before the Local Court on 21 July 2011 Jamie Nicholson appeared. The defendant did not appear although his wife (who was also named as an applicant) did so and sought to represent the defendant. The Magistrate refused to allow that course although in doing so he incorrectly stated that the defendant's wife was not an applicant. In any event, the Magistrate revoked the interim order and dismissed the application.
The third Local Court proceedings
On 1 December 2010 the defendant was charged with an offence of contravening a prohibition or restriction in an AVO which had previously been made in favour of Morton.
On 26 May 2011 the defendant wrote to the police prosecutor at Tweed Heads seeking an adjournment of (inter alia) these proceedings. The letter stated (inter alia):
"We have also requested that Magistrate Dakin be removed from all matters involving Peter and Beverly Viavattene for the reasons that he stated he was in contempt of the Supreme Court...and because he placed illegal orders against Peter allowing access through our Torrens Title when there is no easement or right of carriageway through or over our property registered on our Torrens Title...Could you please advise us if you agree to vacate all matters listed for hearing or mention...until after Supreme Court hearing on 23 August 2011."
There is no evidence before me as to whether or not a response was ever forwarded to the defendant.
The matter came before the Murwillumbah Local Court on 6 June 2011 at which time the defendant did not appear. He was convicted in his absence.
On 14 July 2011 the defendant made an application for annulment of the conviction recorded on 6 June 2011. That application was listed before the Murwillumbah Local Court on 3 August 2011. On that occasion the defendant did not appear and the application was refused.
On 9 September 2011 the defendant lodged a notice of appeal to the District Court against the order dismissing the application for annulment. There is no evidence as to the outcome of that appeal.
It is appropriate to note at this point that the failure of the defendant to attend Local Court hearings, the making of an application to annul the orders made at those hearings in his absence, and his subsequent failure to appear on the hearing of the annulment application are, as I have set out below, characteristic of his conduct of a number of proceedings in the Local Court. On the evidence which is before me, I am satisfied that in each of the instances on which the defendant failed to appear at a hearing, that failure occurred in circumstances where he was aware of the hearing date. I am also satisfied that in each of the instances on which the defendant failed to appear at the hearing of an application to annul orders which had been made against him in his absence, he was similarly aware of the hearing date.
The fourth Local Court proceedings
Proceedings brought against the defendant alleging offences of larceny and malicious damage came before the Murwillumbah Local Court on 11 May 2011 for hearing. On that day, the defendant did not appear. He was initially represented by a solicitor, Mr Edwards, who subsequently sought (and was granted) leave to withdraw. The matter proceeded in the absence of the defendant. He was convicted of both matters, fined and ordered to pay compensation.
At 12:44pm on 11 May 2011 the defendant sent an email to the Local Court at Tweed Heads addressed "To the Magistrate's (sic) of the Tweed and Murwillumbah Court" stating (inter alia) the following:
"I Peter Viavattene have a gastro bug and have been vomiting and diarrhea (sic) overnight after eating takeaway in Sydney yesterday after having the bail conditions removed...I will provide a medical certificate to the court for my absence if I was suppoc (sic) to appear today."
The fifth Local Court proceedings
On 3 November 2010 the defendant was charged by police with assaulting Morton. The matter came before the Murwillumbah Local Court for hearing on 15 June 2011 at which time the defendant failed to appear. The matter proceeded in his absence and he was convicted.
On 19 July 2011 the defendant made an application to annul the conviction entered on 15 June 2011. That application was listed before the Murwillumbah Local Court on 3 August 2011, at which time the defendant did not appear and his application was refused.
On 9 September 2011 the defendant lodged an appeal against the order dismissing his application for annulment. There is no evidence as to the outcome of that appeal.
The sixth Local Court proceedings
On 8 December 2010 the defendant was charged with contravening a prohibition or restriction in an AVO previously made in favour of Morton. The matter was listed for hearing on 9 June 2011 at the Murwillumbah Local Court. On that occasion the defendant did not appear and he was convicted in his absence.
On 14 July 2011 the defendant made an application for annulment of the orders made by the court on 9 June 2011. That application was listed at the Murwillumbah Local Court on 3 August 2011. The defendant failed to appear on that day and his application was refused.
On 9 September 2011 the defendant lodged a notice of appeal to the District Court in respect of the order made in the Local Court on 3 August 2011.
There is no evidence as to the outcome of that appeal.
The seventh Local Court proceedings
On 8 December 2010 the defendant was charged with the assault of Paul Brouwer. The matter was listed for hearing before the Murwillumbah Local Court on 15 June 2011. The defendant did not appear on that day and he was convicted in his absence.
On 14 July 2011 the defendant made application to annul the conviction recorded on 15 June 2011. That application was listed for hearing on 3 August 2011, at which time the defendant did not appear. The application was dismissed.
On 9 September 2011 the defendant lodged a notice of appeal to the District Court in respect of the order made in the Local Court on 3 August 2011.
There is no evidence as to the outcome of that appeal.
The eighth Local Court proceedings
On 25 February 2011 the applicant and his wife jointly commenced proceedings seeking an AVO against Birch.
The matter came before the Murwillumbah Local Court on 23 March 2011 at which time the defendant appeared and an interim order was made. The matter again came before the court on 20 April 2011, at which time it was listed for hearing on 10 June 2011. The defendant was warned of his exposure to a costs order.
On 10 June 2011, the defendant failed to appear. The interim order previously made was revoked, the complaint was dismissed and the defendant was ordered to pay costs in the sum of $1,000.00.
On 30 June 2011 the defendant made an application to annul the orders made on 10 June 2011. That application was listed before the Murwillumbah Local Court on 3 August 2011, at which time the defendant did not appear. The application was dismissed on that day.
On 15 August 2011 the defendant filed a notice of appeal to the District Court in respect of the order made on 3 August 2011.
There is no evidence as to the outcome of that appeal.
The ninth Local Court proceedings
On 2 March 2011 the defendant and his wife made application for an AVO against Harmon. The conditions sought included the following:
"(Mr Harmon) must not trespass or drive through our property (front yard) as we have a Torrens Title which has no carriageway or easement through or over our property registered on tittle (sic)."
The application was listed before the Murwillumbah Local Court on 23 March 2011 at which time the defendant appeared in person and an interim order was made.
On 20 April 2011 the matter came before the Murwillumbah Local Court when the defendant again appeared. The interim order was varied and the matter was adjourned until 10 June 2011 for hearing. The defendant was warned of his exposure to a costs order.
On 10 June 2011 the matter came before the Murwillumbah Local Court for hearing but the defendant did not appear. The interim order was revoked and the complaint dismissed. The defendant was ordered to pay Harmon's costs in the sum of $1,000.00.
On 30 June 2011, the defendant made an application to annul the orders made on 10 June 2011. That application was listed for hearing before the Murwillumbah Local Court on 3 August 2011 at which time the defendant failed to appear. The application was dismissed.
On 15 August 2011 the defendant filed a notice of appeal to the District Court in respect of the orders made on 3 August 2011.
There is no evidence as to the outcome of that appeal.
The tenth Local Court proceedings
On 25 February 2011, the defendant and his wife commenced proceedings seeking an AVO against Stuart Stone ("Stone") (who was incorrectly described in the application as "Stuart Tones"). The application came before Murwillumbah Local Court on 23 March 2011 at which time the defendant appeared in person and an interim order was made. The matter came before the court again on 20 April 2011, when the defendant again appeared and the interim order was varied. The matter was then adjourned for hearing on 10 June 2011. The defendant was warned about his exposure to a costs order.
When the matter came before the court on 10 June 2011, the defendant failed to appear. The interim order was revoked and the application was dismissed. The defendant was ordered to pay Stone's costs in the sum of $1,870.00.
On 30 June 2011 the defendant made an application to annul the orders made by the court on 10 June 2011. That application was listed for hearing on 3 August 2011, at which time the defendant failed to appear. His application was dismissed and he was ordered to pay further costs of $725.00.
On 9 September 2011 the defendant lodged a notice of appeal to the District Court in respect of the orders made on 3 August 2011.
There is no evidence as to the outcome of that appeal.
The eleventh Local Court proceedings
On 19 January 2011 the defendant was charged with contravening an AVO previously made in favour of Morton. The matter came before the Murwillumbah Local Court on 23 March 2011 at which time the defendant appeared in person. The proceedings were adjourned until 25 May 2011 for hearing.
When the matter came before the court on 25 May 2011 the defendant was not in attendance but was represented by a Mr Boys, solicitor. Mr Boys made available a medical certificate and sought an adjournment of the proceedings until August 2011. Mr Boys also told the court that he had instructions to make application for the Magistrate to disqualify himself from hearing the proceedings. Having viewed the medical certificate, the Magistrate refused both applications and matter was stood in the list.
When the matter was later called, Mr Boys indicated to the Magistrate that the defendant had contacted him and was in the process of forwarding a "revised medical certificate" to the court. Having read that document, the Magistrate confirmed the orders he had previously made.
Mr Boys then sought, and was granted, leave to withdraw. The matter proceeded in the defendant's absence and he was convicted.
The twelfth Local Court proceedings
On 20 April 2011 the defendant was charged with contravening a prohibition or restriction in an AVO previously made in favour of Morton and Birch. When the matter first came before the Murwillumbah Local Court on 20 April 2011 the defendant was in custody and was represented by a Mr Mulherin, solicitor. He was granted bail and the matter was adjourned until 8 June 2011 for hearing.
On 7 June 2011 the defendant sent two emails addressed to "Court Services". The first, sent at 12.04 am on that day, stated (inter alia):
"Legal aid has not approved a New Solicitor to Peter and Beverly Viavattene for matters for hearing in the Murwillumbah court his week. After another Solicitor Matt Maloy verbally agreed to represent Peter and Beverly Viavattene in all matters this week and then withdrew his legal services at the last minute this morning. I want to appeal matters heard today the 6th of June on all grounds.
As I still don't have legal representation I propose that all Further Police Matters is (sic) adjourned until after the Supreme Court civil hearing and I received a legal aid solicitor for these bogus criminal charges.
Could you please adjourn all Viavattene Police matters as we have no solicitor therefore I will be unrepresented and totally disadvantaged."
In the second email, sent at 10.23 am on 7 June 2011, the defendant stated that he was unable to attend Murwillumbah Local Court due to his responsibilities as primary carer of his children. He then said:
"Could you please inform the court to adjourn all matters until I am ensured legal assistance as I now have had another representative Matt Maloy withdrew (sic) his legal services yesterday morning as you would be aware from my previous emails. I expect the new solicitor will follow the others and I will be left UNrepresented (sic) once again.
Could you please adjourn all police matters until I receive legal representation?"
At 9.35 am on the morning of 8 June 2011 the defendant telephoned and spoke with a member of the registry staff at the Local Court at 9:35am. The file note of the conversation reads (inter alia) as follows:
"Cannot attend as he is sole carer for the children and his wife is in hospital in Sydney. He has constantly told the court that they have no legal representation and has sent faxes to Court Services reporting the situation."
When the matter came before the Magistrate on the same day the defendant did not appear and was not represented. The Magistrate noted the content of the telephone conversation which had taken place earlier that day, as well as the email correspondence sent by the defendant to the court. The Magistrate refused the application for an adjournment and the defendant was convicted in his absence.
At 10.46 am on 8 June 2011 the defendant sent a further email to Court Services in which he stated:
"I Peter Viavattene request an immediate appeal for matters heard yesterday the 7th of June 2011 in my absence at the Murwillumbah Court as my Legal Aid solicitor Matt Maloy withdrew earlier this week as previously emailed. I am the primary carer of my two young daughters and therefore was UNable (sic) to attend court yesterday and can't attend today as my wife is still away having medical treatment. I request an immediate adjournment for all matters until we receive legal representation (aid or pro bono).
...
Could you please send this message to the Murwillumbah Court?"
On 14 July 2011 the defendant made application for annulment of the orders made by the court on 7 June 2011. That application was listed for hearing before the Murwillumbah Local Court on 3 August 2011. There is no evidence of the outcome of that application although a number of other similar applications which were before the court on that day were dismissed. I infer that this application was also dismissed.
The thirteenth Local Court proceedings
On 7 September 2011 an application made by the defendant and his wife for an AVO against Morton came before the Murwillumbah Local Court. Whilst the defendant did not appear at court on this day, his wife did. An application made by the defendant's wife that she "represent" him was refused by the Magistrate.
The matter was listed for hearing on 1 November 2011 and the parties were informed of their exposure to a costs order.
The evidence does not establish the outcome of the proceedings.
The fourteenth Local Court proceedings
On 19 January 2011 the defendant was charged with contravening a prohibition or restriction in an AVO previously made in favour of Morton and Birch, along with resisting an officer in the execution of his duty. The matters came before the Murwillumbah Local Court on 19 January 2011 at which time they were adjourned for hearing until 9 June 2011.
The defendant failed to appear at the hearing on 9 June 2011 and was convicted in his absence.
On 14 July 2011 the defendant made an application to annul the orders made by the court on 9 June 2011. That application was listed for hearing on 3 August 2011 at which time the defendant again failed to appear. His application was dismissed.
On 9 September 2011 the defendant filed a notice of appeal to the District Court in respect of the order made by the Local Court on 3 August 2011.
The evidence does not establish the outcome of the District Court appeal.
Appeals to the District Court
On 6 March 2012 the listings manager at the District Court forwarded a memorandum to the Murwillumbah Local Court which was in the following terms:
"I right (sic) to you with regards to the abovenamed appellants current applications to appeal on the District and Local Court matters to the CCA in Sydney.
Please be advised that with regards to these appeals the District Court was approached on 1/3/12 to seek an order from Judge Murrell to state the case to the CCA. This application is still being considered by her Honour in chambers.
Until such time as her Honour makes a decision with regards stating the case to the CCA the appeals of the above named appellant cannot be processed.
Therefore all matters and costs orders in the Local and District Court should be stayed until after the appeals."
On 22 June 2012 the defendant forwarded a letter to Judge Murrell of the District Court (as her Honour then was) in reference to a number of proceedings which included the first, second, third, fifth, sixth, seventh, eighth, twelfth and fourteenth Local Court proceedings to which I have previously referred. The letter stated as follows:
"Further to our request for a stated case under section 5B of the Criminal Appeal Act 1912 to the Criminal Court made on 5/3/2012, could you please make your decision regarding our stated case to the Criminal Court of Appeal so that our appeals can be listed for an urgent hearing?"
The evidence does not establish how this application was resolved.
The fifteenth Local Court proceedings
On 17 May 2013 the defendant made an application for an AVO against Birch. That application sought (inter alia) an order in the following terms:
"That Bruce Morton and no one is permitted by law to access 1520 Numinbah Road to get to Bruce Morton and Evelyn Birches (sic) property as there is no access registered on the title of 1520 Numinbah Road Chillingham."
On 23 May 2013 Registrar Lister, at the Downing Centre Local Court, refused the application. The Registrar's comprehensive reasons for declining the application included the following:
"The principal grounds on which I rely are encapsulated in s. 53(4)(a) in the act (sic) in that I am satisfied the application is frivolous, without substance and consequently has no reasonable prospects of success. This is based on the information I have referred to above. I am not willing to say at this time I can be absolutely satisfied the application is vexatious however, considering particularly the manner in which the wording of many of the narratives have been structured, I am satisfied that there is a high level of contrivance in the manner in which these documents have been drafted."
The sixteenth Local Court Proceedings
On 9 January 2013 the Registrar of the Local Court at Tweed Heads considered an application by the defendant for an AVO against Morton. The application was refused by the Registrar on the grounds that it had no reasonable prospects of success. The Registrar informed the defendant by letter of 9 January 2013 that the matter had been listed for determination by the Local Court at Tweed Heads on 20 February 2013.
When the matter came before Magistrate Dakin on 20 February 2013 the defendant appeared. In the course of determining the matter, his Honour said (inter alia):
"Every time you come here you want to rehash matters that you've ventilated in the Supreme Court and taken to the Court of Appeal".
His Honour proceeded to described the defendant as "vexatious" before refusing the application.
On the same day the defendant lodged an appeal to the District Court against the Magistrate's determination.
On 22 February 2013 the defendant wrote to the Registrar of the District Court requesting the expedition of his appeal. On 7 March 2013 the Registrar noted:
"Declined.
1. 22.4.13 is a listing in accordance with the Rules of CT.
2. No DC sittings 2-12 April.
3. Murrell SC DCJ has directed no more matters to be listed in her sittings (ending 28.3.13)
Registrar, Lismore District Court
Notified by email 11/3".
The matter came before her Honour Judge Wells SC in the District Court at Lismore on 22 April 2013 at which time it was listed on 19 June 2013 "to determine the question of right of appeal".
The evidence does not indicate what occurred before the District Court on 22 April 2013.
The seventeenth Local Court proceedings
On 24 December 2012 the defendant lodged an application for an AVO against Lachlan Nicholson. On 8 January 2013 Registrar Gavenloch at the Tweed Heads Local Court refused the application on the basis that it had no reasonable prospects of success. The matter was listed for determination by the Tweed Heads Local Court on 20 February 2013.
On 15 January 2013 the defendant wrote to the "Magistrates of the Murwillumbah Court" in response to the Registrar's decision. The correspondence alleged that the Registrar had "breached the Crimes Act 1900" and suggested that the Registrar "should check with the Judicial Commission on her scope of practice as a Registrar". The correspondence incorporated a request that the matter be "expedited and heard in chambers immediately as the court has a duty of care to protect my family and property".
The correspondence also contained the following:
"Our property I repeat again is a Torrens title that has no access registered on title therefore no one should be permitted by law to enter my property and certainly not allowed to commit criminal acts..."
The matter came before Magistrate Dakin on 20 February 2013 at which time the defendant appeared in person. During the course of determining the matter, his Honour said (inter alia):
"You are vexatious and I refuse each of these applications."
On 20 February 2013 the defendant filed a notice of appeal to the District Court against the Magistrate's determination. The matter came before her Honour Judge Wells SC on 22 April 2013 at which time it was adjourned until 19 June 2013 to "determine the question of right of appeal."
The evidence does not indicate what occurred on that occasion.
The eighteenth Local Court proceedings
On 25 February 2013, the defendant made application for an AVO against Kevin Cheetham ("Cheetham"). The orders sought included the following:
"That no one is permitted by law (that the police will enforce) to access 1520 Numinbah Road Chillingham as there is no access or easement registered on title or Court Order to allow such illegal, criminal behaviour to continue."
The matter came before the Murwillumbah Local Court on 6 March 2013 at which time the defendant appeared in person. The matter was adjourned on that day until 27 March 2013. The notation on the court record includes "SNS" which I infer indicates that the summons was not served. The court record also notes "Summons extended".
On 27 March 2013 there was no appearance of the defendant and the application was dismissed.
The nineteenth Local Court proceedings
On 6 March 2013 the defendant made an application to vary an AVO which had been made against him on the application of Jamie Nicholson on 21 July 2011. The application was listed for hearing before the Murwillumbah Local Court on 27 March 2013.
On 27 March 2013 there was no appearance by the defendant and the application was dismissed.
The twentieth Local Court proceedings
On 30 April 2013 the defendant made application for an AVO against Cheetham. The application was listed at the Murwillumbah Local Court on 8 May 2013.
On 8 May 2013 the defendant appeared in person and the matter was adjourned to 22 May 2013.
On 22 May 2013 the defendant appeared in person. On that day, the Magistrate dismissed the application on the basis that it had no prospects of success.
The twenty first Local Court proceedings
On 17 May 2013 the defendant made application for an AVO against Morton. The application included the following statement:
"Bruce Morton needs to provide evidence to the court that he can lawfully trespass through our Torrens Title that has no access registered on title and commit crimes against the Viavattene children."
On 4 June 2013 the matter came before Magistrate O'Brien at the Downing Centre Local Court and the transcript of those proceedings is in evidence before me. Whilst I do not propose to set out the entirety of what was said on that occasion, the transcript records the defendant repeatedly seeking to raise matters which were irrelevant to the issue before the court. In particular, and in the course of various exchanges with the Magistrate, the defendant asserted that:
(i) police in and around northern NSW were "paid off", necessitating the application being brought in Sydney;
(ii) he had reported Magistrate Dakin to the Judicial Commission of NSW for misconduct;
(iii) he had been forced to report police misconduct to "Professional Standards"; and
(iv) police had refused to investigate his complaints.
His Honour reached the following conclusion:
"I could not say that this application were (sic) vexatious. However, I am satisfied that the matters relied upon are frivolous and that the application has no reasonable prospect of success. That being the case, and that being the conclusion that I have drawn from the material, the orders that I propose to make are that I decline to allow the filing of the application and confirm the decision of the Registrar."
Following the Magistrate's determination, the transcript records the defendant stating:
"Are you serious?"
On 12 June 2013 the defendant filed a summons in this court commencing an appeal against the decision of Magistrate O'Brien. The defendant's affidavit in support of the summons enumerated no less than 26 orders which were sought, at least some of which had no relationship whatsoever to the determination which was the subject of the proposed appeal.
The matter came before Rothman J on 25 June 2013 at which time his Honour made orders (inter alia) referring the matter to the Registrar.
The defendant then filed a notice of motion seeking a total of 18 further orders along with an order for damages. The notice of motion asserted (inter alia) that Morton, Birch and Cheetham were in contempt of court.
There is no evidence as to the outcome of these proceedings.
Proceedings in the High Court of Australia
The defendant made a series of applications in which he sought to remove proceedings brought in the Local Court to the High Court of Australia. Those applications were dismissed by Kiefel and Keane JJ (see Viavattene v New South Wales Police [2013] HCA SL 88) where their Honours said (at [2]):
"The six applications for removal before this Court seek orders that the whole of the causes said to be pending in the Local Court be removed to the High Court. The causes to which the applications refer were finalised on 23 November 2012. The applications are incompetent because there are no pending proceedings to which s 40 of the Judiciary Act 1903 (Cth) could apply".
Tweed Shire Council Proceedings
On 15 November 2010 the Tweed Shire Council ("the Council") served a penalty notice on the defendant alleging an infringement of clause 11(1)(b) of the Roads Regulation 2008. On 22 November 2010 the council served a further seven penalty notices alleging infringements of the same regulation. A ninth penalty notice alleging a similar infringement was served on the defendant on 3 December 2010.
On 19 December 2010 the penalty notices came before the Murwillumbah Local Court. The defendant did not appear and was convicted and fined in his absence.
On 10 May 2010, the defendant applied for an annulment of the orders made by the court on 19 December 2010. That application was granted and the matters were listed for hearing before the court on 9 November 2011.
On 7 November 2011 the defendant applied for an adjournment of the hearing. That application was refused. However, when the matter came before the court on 9 November 2011 it was further adjourned until 19 December 2011.
On 8 December 2011 the defendant made a further application for an adjournment. He was informed on 12 December 2011 that such application was refused. He then made yet a further adjournment application on the same day. On 18 December 2011 he forwarded written submissions to the court asserting that the access road was on his land and that his neighbours were trespassing.
On 19 December 2011 the matters again came before the Murwillumbah Local Court at which time the defendant did not appear. He was convicted and fined in his absence.
On 21 December 2011 the defendant made an application for an annulment of the orders made by the court on 19 December 2011. He was informed by letter of 9 January 2012 that such application was listed for hearing before the court on 8 February 2012. He failed to appear on that day and the application for annulment was dismissed.
A further application for annulment was made on 7 March 2013. That application was dismissed on 3 April 2013.
On 3 April 2013 the defendant attempted to file a notice of appeal to the District Court. That application was returned to the defendant on 5 April 2013 because it had not been accompanied by the prescribed fee nor any application to waive the fee. On 8 April 2013 the defendant sent an application for waiver of the fee to the District Court. The notice of appeal was returned to the defendant on that day on the basis that the statutory period for the bringing of an appeal had expired.
On 26 April 2013 the defendant filed a summons in this court seeking leave to appeal against the convictions and penalties imposed by the Local Court. The matter was heard by Barr AJ on 12 June 2013 and in a judgment delivered on 28 June 2013 his Honour set aside the convictions entered by the Local Court in respect of the first, second, fourth and ninth infringement notices but dismissed the appeal against convictions in respect of the remaining notices (see Viavattene v Tweed Shire Council [2013] NSWSC 838).
The CTTT proceedings
On 8 February 2010 the defendant and his wife brought an application in the Consumer, Trader and Tenancy Tribunal ("CTTT") seeking orders for rent reduction, compensation and return of a bond. In the same proceedings the landlord brought an action for recovery of rent and compensation for damage to the premises.
A summons had been issued in those proceedings by the defendant and his wife for production of documents by the landlord. Evidence was given before the tribunal that all documents relevant to the proceedings had already been disclosed pursuant to directions made by the tribunal. The tribunal member who determined the matter noted:
"Ms Viavattene was unable to provide any satisfactory reason for any of the documents that she had sought and had not been produced."
The proceedings in the Supreme Court of Queensland
On 1 June 2011 the defendant filed a statement of claim in the Supreme Court of Queensland naming the state of Queensland as the defendant and seeking (inter alia) damages in the sum of $900 million.
On 8 August 2011 the matter came before Dalton J who made orders striking out the statement of claim and granting leave to file an amended statement of claim.
On 5 October 2011 the defendant filed an amended statement of claim. The pleadings encompassed a total of 185 paragraphs and culminated in the plaintiff seeking (inter alia) declaratory relief as well as damages in the sum of $5 million.
On 12 December 2011 the defendant filed an application "disputing" a conditional notice of intention to defend the proceedings which had been filed by the defendant. The hearing of that application came before Applegarth J on 19 December 2011. His Honour ordered (inter alia) that the amended statement of claim be dismissed.
The proceedings in Fair Work Australia
The defendant brought proceedings for unfair dismissal against Healthcare Australia Pty Limited pursuant to the Fair Work Act 2009. The proceedings were brought in the Fair Work Commission. In the course of those proceedings the defendant indicated that he objected to the respondent being legally represented. He failed to provide written submissions in respect of that issue accordance with directions which had been made by the commission (see Viavattene v Health Care Australia Pty Limited [2012] FWA 7407 at [2]).
The commission subsequently directed the defendant to attend the hearing in person, and further directed the respondent to the proceedings to pay an amount of $240.00 to the defendant in respect of travel expenses (see Viavattene v Health Care Australia Pty Limited [2013] FWC 628 at [14]-[16]).
The defendant was required to appear before the commission on 30 January 2013 but failed to do so. When contacted, he advised that he had been adversely affected by flooding in the area in which he lived, an assertion which the presiding Commissioner appeared to accept (see Viavattene v Health Care Australia Pty Limited [2013] FWC 677 at [5]-[8]).
The Commissioner then noted (at [9]) that when contacted, the defendant had:
"... requested that the matter be heard on the papers without a hearing. He then hung up."
In light of the defendant's difficulties, the Commissioner vacated the previous order requiring the defendant to attend the hearing personally, and granted him leave to attend by telephone. The proceedings were adjourned until 31 January 2013.
When the hearing resumed on that day, the defendant failed to appear (see Viavattene v Health Care Australia Pty Limited [2013] FWC 756 at [20]-[21]). Attempts made to contact him by telephone were unsuccessful and he did not contact the Commission in response to messages which were left for him. The proceedings were then dismissed (at [37]).
The defendant appealed against the dismissal of the proceedings. With the consent of both parties, that appeal was determined on the papers (see Viavattene v Health Care Australia Pty Limited [2013] FWC FB 2532 at [1].) The Full Bench of the Commission noted that in bringing the proceedings the defendant had alleged:
(i) a denial of procedural fairness;
(ii) bias;
(iii) that statements of witnesses filed by the respondent were vexatious and malicious.
The Commission refused permission to appeal (at [44]).
THE RELEVANT LEGISLATION
Section 8 of the Act is in the following terms:
8 Making of vexatious proceedings order
When orders may be made
(1) An authorised court may make an order under this section (a "vexatious proceedings order") in relation to a person if the court is satisfied that:
(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or
(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.
(2) For the purposes of subsection (1), an authorised court may have regard to:
(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and
(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section).
(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.
(4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons:
(a) the Attorney General,
(b) the Solicitor General,
(c) the appropriate registrar for the court,
(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings,
(e) a person who, in the opinion of the court, has a sufficient interest in the matter.
(5) An application for a vexatious proceedings order may be made by a person referred to in subsection (4) (e) only with the leave of the authorised court.
(6) A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person.
Orders that may be made by Supreme Court
(7) The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in New South Wales,
(c) any other order that the Court considers appropriate in relation to the person.
Orders that may be made by Land and Environment Court
(8) The Land and Environment Court may make any one or more of the following vexatious proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in the Court already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in the Court,
(c) any other order that the Court considers appropriate in relation to proceedings by the person in the Court.
Orders that may be made by Industrial Court
(9) The Industrial Court may make any one or more of the following vexatious proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in the Industrial Relations Commission (whether in Court Session or otherwise),
(b) an order prohibiting the person from instituting proceedings in the Industrial Relations Commission (whether in Court Session or otherwise),
(c) any other order that the Court considers appropriate in relation to proceedings by the person in the Industrial Relations Commission (whether in Court Session or otherwise).
The term "vexatious proceedings" is defined in s. 6 of the Act as follows:
6 Meaning of "vexatious proceedings"
In this Act, "vexatious proceedings" includes:
(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
SUBMISSIONS OF THE PLAINTFF
Comprehensive written submissions were provided to the court by counsel for the plaintiff.
In an overall sense, the plaintiff relied on what might be described as a pattern of behaviour on the part of the defendant arising out of the various proceedings which I have summarised above. Counsel submitted that taken together, the evidence established that the defendant had engaged in the frequent institution, or conduct, of vexatious proceedings. He submitted that once the court was satisfied that was the case, its discretionary power was enlivened and that in all of the circumstances I should exercise my discretion in favour of the making of the orders which were sought.
In these respects counsel relied upon a number of matters.
Firstly, counsel submitted that the evidence established that the defendant had brought or conducted a number of vexatious proceedings against individuals, upon whom such proceedings may be expected to weigh more heavily than would be the case if the proceedings were brought against a government or private entity. Counsel also pointed to the fact that in a number of instances, the defendant had brought or conducted proceedings jointly with his wife, who herself was made the subject of an order under the Act (see Attorney General (NSW) v Viavattene [2013] NSWSC 453).
Secondly, counsel pointed to the fact that in some of the proceedings which had been instituted, the defendant had made unfounded allegations of bias and impropriety against judicial officers.
Thirdly, counsel relied upon what he submitted was a demonstrated inability on the part of the defendant to accept finality in litigation. In this respect he relied, in particular, the defendant's repeated attempts, in the face of the determination made by Davies J, to put in issue matters relating to access over his property.
Fourthly, counsel pointed to the applications which the defendant either brought or attempted to be brought, which were found to have no prospects of success.
Finally, counsel pointed out that if an order were made, it would not have the effect of shutting out the defendant from bringing proceedings to enforce any legitimate claim that he might have at any time in the future. Counsel submitted that the effect of this was that in the event that he had such a legitimate claim or claims, the defendant would be able to obtain the leave of the court to commence the proceedings.
CONSIDERATION
Applicable principles
The provisions of the Act have been considered in a number of authorities, from which the following principles can be extracted:
(i) the categories of vexatious proceedings which are contemplated by s. 6 are linked. Proceedings may constitute an abuse of process regardless of the personal intention, motive or state of mind of the litigant (see Attorney-General v Altaranesi [2013] NSWSC 63 at [17];
(ii) the question whether proceedings are "without reasonable grounds" is one gauged objectively, and not from the perspective of the litigant who is said to be vexatious. This approach protects the courts from litigants who genuinely, but misguidedly, are persuaded as to the correctness of their own conduct (see Altaranesi at [19]);
(iii) sub paragraph (b) of s. 6 connotes a subjective intention on the part of the defendant. However sub paragraph (d) does not, and is concerned with effect and consequence, rather than motive or design. This relieves the court of the obligation of determining whether or not the defendant intends the consequences of his or her actions (see Altaranesi at [20]); see also Pascoe v Liprini [2011] NSWSC 1484 at [10]; Attorney-General v Chan [2011] NSWSC 1315 at [33];
(iv) to "institute" proceedings has a broad meaning under the Act, and is sufficiently wide to cover both civil and criminal proceedings, as well as proceedings before courts and tribunals (see Altaranesi at [8]);
(v) the concept of "conducting" proceedings covers every step a party may take in order to further existing litigation (see Altaranesi at [9]);
(vi) the definition of "proceedings" includes interlocutory proceedings as well as appeals, such that the court can have regard to baseless applications or appeals (see Altaranesi at [13]); see also Attorney-General v Wilson [2010] NSWSC 1008 at [15];
(vii) the term "frequently" is relative and must be looked at in the context of the litigation which is being considered (see Wilson (supra) at [12]); Attorney-General v Croker [2010] NSWSC 942 at [22]; Attorney-General in and for the State of New South Wales v Gargan [2010] NSWSC 1192 at [7]; Siteberg Pty Limited v Maples [2010] NSWSC 1344 at [31]-[32];
(viii) it is not necessary for a person to commence a large number of proceedings in order for it to be said that the person has done so frequently. The individual number of proceedings can be quite small if, for example, they are an attempt to re-litigate an issue already determined against the person (see Siteberg at [31]; Wilson at [14]; Gargan at [7]);
(ix) the manner in which a person speaks or acts in the courtroom when conducting proceedings is a relevant consideration (see Wilson at 16]; Gargan at [7]; Altaranesi at [13].
The term "frequently" was considered by Blanchard J in Brogden v Attorney-General [2001] NZCA 208 where his Honour said (at [20]):
"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 appeals 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. The fact that one or more proceedings have been struck out does not inevitably lead to the conclusion that the litigation has been vexatious. But this may be a strong indication."
Further, in determining whether the orders sought should be made I am entitled to have regard not only to the result of proceedings but, where appropriate, the findings of, and views expressed by, the various judicial officers who dealt with them (see Wilson (supra) at [22], citing Attorney-General v Bar Mordecai [2005] NSWSC 142 at [5] and Croker (supra) at [125]).
A finding that the defendant has frequently instituted or conducted vexatious proceedings in Australia enlivens the discretion to make the orders which are sought in the present case. In Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 Perram J, having cited a number of the principles to which I have already referred, made the following observations as to the nature of that discretion (at [12]):
"Finally, once it is concluded that the court's power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings in likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise."
The circumstances of the present case
The evidence tendered by the plaintiff establishes the institution, or conduct, of multiple proceedings by the defendant, sometimes jointly with his wife, in various courts and tribunals between 2011 and 2013. Given the number of them I am satisfied that such proceedings have been brought or conducted frequently within the meaning of s. 8(1)(a).
Further, I am satisfied that the majority of those proceedings to which I have referred are properly described as vexatious on one or more of the bases contemplated by the definition of the term "vexatious proceedings" contained in s. 6 of the Act. In all of those circumstances, I am satisfied that my discretion should be exercised in favour of making the orders sought.
I have reached these views for the following reasons.
Firstly, the evidence establishes a clear unwillingness on the part of the defendant to accept the determination made by Davies J in the proceedings brought against Morton and Birch. As Perram J pointed out in Gargan (No2) (supra) a litigant's acceptance of his previous litigious history may be suggestive of a diminution in the risk posed to the public. In the present case, a number of the proceedings brought by the defendant have sought to re-agitate the issue which was determined by Davies J (see for example [55], [89], [92], [100], [104] and [112] above). The fact that the defendant has repeatedly attempted to re-agitate that issue is at odds with an acceptance of his previous litigious history.
Secondly, bearing in mind the provisions of s. 6(d) of the Act, the defendant has displayed a particular pattern of behaviour in the conduct of various proceedings, aspects of which have consistently included:
(i) repeatedly seeking adjournments (see for example [30], [68], [72], [73], [74] and [86] above;
(ii) making allegations of bias and other impropriety (see for example [30], [68], [99] and [143] above);
(iii) failing to appear at the hearing of the proceedings (see for example [28], [32], [36], [38], [41], [45], [51], [58], [63], [82], [106] and [108] above);
(iv) making application for annulment of orders made in his absence and thereafter failing to appear on the hearing of that application [33], [39], [42], [46], [52], [59], [64], [77] and [83] above).
Thirdly, bearing in mind the provisions of s. 6(a) of the Act, some of the proceedings to which I have referred constitute an abuse of process of the court, as evidenced by the defendant:
(i) instituting, or seeking to institute, proceedings which had no reasonable prospects of success (see for example [90]-[93], [98], [101], [114] and [120] above;
(ii) seeking damages in extravagant and exorbitant sums, unsupported by any evidence (see for example [10] and [133] above;
(iii) the filing of "joint affidavits" containing largely irrelevant material (see for example [15] and [19] above);
(iv) seeking to join other parties to proceedings in the absence of any reasonable grounds on which to do so (see [15] above; and
(v) discontinuing proceedings once instituted (see [20] above).
Fourthly, when challenging such determinations which were adverse to him, the defendant has made unfounded allegations of impropriety on the part of judicial officers, who have had no right of redress (see for example [30] and [99] above).
Fifthly, one member of the Local Court Bench, namely Magistrate Dakin, has described the defendant as "vexatious" (see [93] and [101] above) whilst another, Magistrate O'Brien, described one of the applications brought by the defendant as "frivolous" (see [114] above). The defendant's conduct in the latter proceedings is best described as quarrelsome, and culminated in the Magistrate's decision being challenged in terms which were both offensive and unwarranted (see [115] above).
In Attorney-General v Chan [2011] NSWSC 1315 Adamson J (at [177]) made the following observations:
"The right to bring proceedings in a court or tribunal is a right that ought not be abused. The Defendant has repeatedly, as referred to above, used the processes of courts and tribunals to assert rights and grievances for which he has no reasonable ground. He has abused the processes of the Court by re-litigating issues which he has lost, and selected new defendants against whom to vent his complaints. He has also made several damaging allegations of reprehensible conduct against individuals, including judicial officers, who have no practical right of redress. He has taken up the time of judges, court staff, litigants and solicitors in a wholly unproductive way. He has sought adjournments on unsubstantiated grounds ...."
Her Honour's observations, which I gratefully adopt, are apt to describe the conduct of the defendant in the present case.
ORDERS
For the reasons set out above, I am satisfied that the defendant has frequently instituted or conducted vexatious proceedings and that an order pursuant to s. 8(7)(b) of the Act is warranted.
In terms of the order sought pursuant to s. 8(7)(a), counsel for the plaintiff provided to the court a search indicating all pending proceedings to which the defendant is currently a party. That document forms part of Exhibit A. Counsel submitted that it had been open to the defendant to appear before the court at the hearing of these proceedings and identify any of those pending proceedings which were not vexatious. He submitted that in these circumstances I should consider the pending proceedings by reference to the evidence which had been tendered which, it was submitted, supported the making of the order under s. 8(7)(a).
Counsel drew my attention to a decision of Le Miere J in the Supreme Court of Western Australia in Attorney-General v Michael [2005] WASC 203 where his Honour said (at [148]):
"It is not appropriate for the court to make a blanket order staying any proceedings that have been instituted by a person. The court should consider each existing proceeding and whether or not that proceeding should be stayed".
If his Honour was intending to convey the view that the making of a blanket order could never be appropriate regardless of the circumstances, then I would, with respect, tend to disagree. However, the correctness of his Honour's observations were not the subject of any argument before me and in any event, it is not necessary for me to determine that issue in order to reach a decision in the present case. In circumstances where the defendant could have appeared before the court and made submissions as to any of the pending proceedings but has not done so, I am satisfied that an order under s. 8(7)(a) should be made. In this regard the observations of Adamson J in Chan (supra at [179]), a case in which her Honour dealt with this same issue, are again instructive:
"I consider that the plaintiff has been sufficiently rigorous in its examination of what proceedings are currently on foot. The defendant has not responded to the request that he identify such proceedings. Nor has the defendant made any submissions as to why particular proceedings which he has instituted ought not be stayed. He would, effectively, be profiting from his own breach, were this consideration to narrow the ambit of the order made against him to particular proceedings."
For all of these reasons I make the following orders:
(1) Pursuant to s. 8(7)(b) of the Vexatious Proceedings Act 2008 NSW the defendant is prohibited from instituting proceedings in New South Wales without the leave of the court.
(2) Pursuant to s. 8(7)(a) of the Vexatious Proceedings Act 2008 NSW all proceedings in New South Wales which are already instituted by the defendant are stayed.
(3) The defendant is to pay the plaintiff's costs.
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Decision last updated: 27 March 2014
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