Attorney-General of Victoria v Gargan
[2013] VSC 222
•7 May 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 6196 of 2012
IN THE MATTER of an application pursuant to s 21 of the Supreme Court Act 1986 (Vic)
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| PETER ALEXANDER GARGAN | Defendant |
---
JUDGE: | PAGONE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 24 April 2013 | |
DATE OF JUDGMENT: | 7 May 2013 | |
CASE MAY BE CITED AS: | Attorney-General of Victoria v Gargan | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 222 | |
---
PRACTICE AND PROCEDURE – Application for order that defendant be declared a vexatious litigant – Whether defendant habitually, persistently and without reasonable ground instituted vexatious legal proceedings – Relevance of proceedings instituted outside of State jurisdiction – Intervention without cause in the proceedings of third parties – Issuing of proceedings in which the defendant has no legal or equitable interest – Issuing of proceedings lacking in merit or substance – Supreme Court Act 1986 (Vic) s 21(2).
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Harris | Victorian Government Solicitor |
| For the Defendant | No appearance |
HIS HONOUR:
The Attorney-General for the State of Victoria seeks orders pursuant to s 21 of the Supreme Court Act1986 (Vic) declaring the defendant, Peter Alexander Gargan, a vexatious litigant. Interlocutory orders were made against Mr Gargan on 21 January 2013.[1]
[1]A-G (Vic) v Gargan [2013] VSC 19.
Section 21 of the Supreme Court Act1986 (Vic) empowers the Court to make an order declaring a person to be a vexatious litigant. Before making such an order, the Court must hear or give the person sought to be declared a vexatious litigant an opportunity to be heard. Mr Gargan did not appear, and was not represented, either at the interlocutory proceeding before Ferguson J on 21 January 2013 or at the final hearing of the proceeding before me on 24 April 2013.
Mr Gargan, however, has been given an opportunity to be heard. Ferguson J observed in her reasons for decision on the interlocutory application:
As I have said, Mr Gargan did not appear on this application. It seems from the affidavit material that he is presently located in Laverton, Western Australia. Although difficulties were encountered, he has now been served with the proceedings and supporting affidavits. Mr Gargan sent an email from the Victorian Government Solicitor’s Office (“VGSO”) stating, amongst other things, that he would not be entering an appearance. There has been subsequent correspondence between Mr Gargan and the VGSO by email.
I am satisfied that Mr Gargan has notice of the proceedings, the application for the interlocutory injunction and the application for service of documents in the proceeding on him by email. I am also satisfied that if documents are sent to him by email, he will receive them at the email address to which correspondence has been sent already.[2]
Counsel appearing for the Attorney-General has taken me to the material relied upon by her Honour from which I have independently been satisfied that Mr Gargan has notice of the proceedings. The material filed since her Honour’s orders also satisfies me that Mr Gargan has been notified of the final hearing of the proceeding before me on 24 April 2013. The orders made by her Honour were emailed to Mr Gargan, as were a copy of the transcript of the proceedings which took place before her Honour, and also a covering letter from Mr Stephen Lee of the Victorian Government Solicitor’s Office (“VGSO”). On 24 January 2013, her Honour’s Associate, Ms Tasic, sent by email to both the Attorney-General and to Mr Gargan a copy of the orders which her Honour had made on that day. On 29 January 2013, Mr Lee sent to Mr Gargan a letter enclosing an affidavit sworn by Mr Lee filed on 21 January 2013.
[2]Ibid [7]-[8].
On 21 February 2013, Mr Lee wrote again to Mr Gargan specifically informing him that the final hearing of the proceeding had been listed for hearing in the Supreme Court of Victoria on 24 April 2013. A copy of the Notice of Hearing was enclosed with that letter. On 26 February 2013, Mr Gargan filed an affidavit in the proceeding with the Court. It is clear from Mr Gargan’s affidavit that he was not proposing to attend the Court hearing on 24 April 2013. In paragraph 79 of the affidavit, Mr Gargan said:
Unless the AttorneyGeneral of the Commonwealth intervenes the ears of any State Judge are effectively closed to any logical argument on any Constitutional issue by any person not a member of the cartel, and the outcome is decided before the matter is listed for hearing, so it is not intended that the defendant will take the trouble to attend what is in effect a lay down Misere, where the outcome is not likely to be any different from the many times Judges and Magistrates have heard but not listened, or complied with the necessary prerequisites for a court of Judicature. Only if Chief Prosecutor Fatou Bensouda indicates a willingness to send an envoy to observe the proceedings, or the Federal AttorneyGeneral intervenes is it likely to be worth the effort.
The affidavit was also sent to VGSO and the International Criminal Court. On 15 March 2013, Mr Lee sent by email to Mr Gargan the Notice of Trial for the proceeding. On 18 April 2013, Mr Lee sent to Mr Gargan a copy of the transcript of the proceedings before Ferguson J on 21 January 2013. On 22 April 2013 Mr Gargan effectively acknowledged notice of the proceeding by email addressed to, amongst others, the Civil Listings Executive Assistant at the Supreme Court of Victoria and Mr Lee.
The email from Mr Gargan (addressed to the “Presiding Justice”) of 22 April 2013 refers to the proceeding which had been set to be heard on 24 April 2013 when Mr Gargan wrote:
If you wish to enter the Australian History Books, as the Justice who re-established the court of Judicature we should be entitled to under Ch III Constitution you will adjourn on the 24th April 2013, and give me an opportunity to prove as fact, before a panel of lay “judges” as required by S 5 Commonwealth of Australia Constitution Act 1900, and S 79 Constitution that no court of Judicature has been made available to me since 1992, and because that is a fact, I am entitled to be vexed.
The email concluded by saying:
Let us sit down with a fair, impartial and independent tribunal of fact, and get the justice system in Australia back on track. This email is written forty eight hours before the so called trial is to start. Give me a fair go and I will brave a Melbourne winter, to serve my country. If you are minded to grant my wishes, I can appear by telephone from WA for directions, but not trial.
In these circumstances I am satisfied that Mr Gargan has had an opportunity to be heard and has been heard to the extent that his affidavit was before me, together with the material which formed part of the exhibits relied upon by the Attorney-General.
To make an order that Mr Gargan is a vexatious litigant, the Court must be satisfied that he 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.[3] An order declaring a person to be a vexatious litigant is not to be made lightly because its effect is to deprive a person of access to the courts without first seeking leave.
[3]Supreme Court Act1986 (Vic) s 21(2).
In Kay v Attorney-General (Vic)[4] the trial judge in an application to have a person declared a vexatious litigant was said to have conducted the hearing of the application with “exemplary care and meticulous fairness” extending “considerable generosity and latitude to the applicant”.[5] Ormiston JA went on to say, however, that it should not be thought that in every application it “was necessary to re-examine the circumstances of each proceeding upon which the Attorney-General might seek to rely to support the making of an order”.[6] In Attorney-General (Vic) v Horvath,[7] Ashley J (as his Honour then was) said, in relation to the task required by s 21(2) of the Supreme Court Act 1986 (Vic):
It is one thing to know what the word “vexatious” means. It is another thing to apply s 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files – documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s 21, in determining whether the Attorney-General has made out a case, the court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.[8]
It is, therefore, to Mr Gargan’s proceedings that the Court must look in any application under s 21 to determine whether the proceedings brought by him are, rather than whether he is, vexatious.
[4](2000) 2 VR 436.
[5]Ibid 437 [1] (Ormiston JA).
[6]Ibid; see also A-G (Vic) v Weston [2004] VSC 314, [16] (Whelan J) and A-G (Vic) v Knight [2004] VSC 407, [5] (Smith J).
[7][2001] VSC 269.
[8]Ibid [28] (citations omitted); see also A-G (Vic) v Shaw [2007] VSC 148, [5] (Hansen J) and A-G (Vic) v Moran [2008] VSC 159, [27] (Curtain J).
The Attorney-General relies upon 12 Victorian court proceedings instituted by Mr Gargan as vexatious. Mr Gargan has also instituted proceedings interstate or in Commonwealth court tribunals, but these are not of the specified character to fall within the ambit of s 21.[9] It may be possible, however, to have recourse to proceedings issued in a non-state jurisdiction “upon the question whether proceedings instituted within the jurisdiction should be characterised as vexatious; to aid a conclusion that proceedings instituted within the State jurisdiction had been instituted habitually and/or persistently; and upon an exercise of discretion under s 21(2)”.[10]
[9]A-G (Vic) v Weston [2004] VSC 314, [9] (Whelan J).
[10]A-G (Vic) v Horvath [2001] VSC 269, [14]-[16] (Ashley J).
It is not sufficient to make an order under s 21(2) that a person has instituted vexatious legal proceedings: the person must have done so habitually, persistently, and without any reasonable ground. In Attorney-General (NSW) v Wentworth,[11] Roden J said, in the context of the relevant New South Wales legislation:
[11](1988) 14 NSWLR 481.
“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.[12]
The conditions necessary to make an order under s 21(2), namely that vexatious proceedings have been instituted habitually and persistently, does not necessarily require that the number of proceedings be large. In Attorney-General (Vic) v Weston,[13] Whelan J adopted the observation from the decision in Brogden v Attorney-General (New Zealand)[14] where the New Zealand Court of Appeal said, in relation to the term “persistently”:
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.[15]
In this proceeding, the Attorney-General contends that the Victorian proceedings, although limited in number, demonstrate a pattern of behaviour of intervention without cause in the litigation of third parties, and the making of wide ranging, extravagant and sometimes scandalous allegations.
[12]Ibid 492; see also A-G (Vic) v Lindsey (Unreported, Supreme Court of Victoria, Kellam J, 16 July 1998); A-G (Vic) v Kay [1999] VSC 30, [160] (Eames J); A-G (Vic) v Weston [2004] VSC 314, [20] (Whelan J); A-G (Vic) v Shaw [2007] VSC 148, [4] (Hansen J).
[13][2004] VSC 314.
[14][2001] NZCA 208.
[15]Ibid [21]; adopted in A-G (Vic) v Weston [2004] VSC 314, [21]; see also A-G (Vic) v Moran [2008] VSC 159.
It is also important to keep in mind that the focus of inquiry under s 21 is whether the proceedings are themselves vexatious and not whether they were instituted vexatiously.[16] Proceedings may be vexatious if:
[16]Re Vernazza [1960] 1 QB 197, 208 (Ormrod J); A-G (Vic) v Weston [2004] VSC 314, [14] (Whelan J).
(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.[17]
In addition, a proceeding may be considered vexatious though not plainly devoid of any merit whatsoever.[18] In Attorney-General (WA) v Michael,[19] Anderson J 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.[20]
The third requirement in s 21 that must be found, namely, that the proceedings are “without any reasonable ground”, has been said to have an element of tautology[21] but would have an independent operation if the relevant proceedings were vexatious on a basis other than hopelessness, such as bad faith.[22]
[17]A-G (Vic) v Weston [2004] VSC 314, [14] (Whelan J); A-G (NSW) v Wentworth (1988) 14 NSWLR 481.
[18]A-G (Vic) v Weston [2004] VSC 314, [15] (Whelan J) adopting Anderson J in A-G (WA) v Michael [1999] WASCA 181, [126].
[19][1999] WASCA 181.
[20]Ibid [126]; adopted with approval in A-G (Vic) v Weston [2004] VSC 314, [15] (Whelan J).
[21]Jones v Skyring (1992) 109 ALR 303, 309 (Toohey J).
[22]A-G (Vic) v Weston [2004] VSC 314, [22] (Whelan J); A-G (Vic) v Knight [2004] VSC 407, [6] (Smith J).
There are, as I have said, 12 Victorian court proceedings which the Attorney-General contends are vexatious legal proceedings instituted by Mr Gargan. Eight were issued in the Magistrates’ Court, one in the County Court, two in the Trial Division of the Supreme Court, and one in the Court of Appeal. The facts relevant to the proceedings are set out in affidavits by Mr Stephen Lee, particularly the affidavit sworn by him on 1 November 2012, and the material in the exhibits to his affidavits. I will consider the proceedings in the order in which they were referred to in the written submissions filed on behalf of the Attorney-General.
The first of the 12 proceedings referred to in the Attorney-General’s written submissions was that issued in the County Court of Victoria numbered CI-06-03878. It was issued at Bendigo, naming “Darryl Mark O’Bryan and Ors (Community Law Resource Group)” as the first plaintiff and Peter Alexander Gargan as the second plaintiff. The document, described as a statement of claim, contains a series of what may perhaps be described as propositions of law to maintain the contention against the Commonwealth of Australia that on 4 October 2006 the Deputy Registrar of the High Court of Australia and Justice Michael Kirby were “in contempt of the Constitution, and [of] the Judicial Power of the Commonwealth[,] with intent on behalf of the Commonwealth to prevent proceedings issuing” by refusing to issue a proceeding which one of the unidentified plaintiffs had attempted to file on 4 October 2006. The statement of claim issued in the County Court maintained that the refusal to issue the proceeding in the High Court was in breach of s 43 of the Crimes Act 1914 (Cth), which provides:
(1) A person commits an offence if:
(a) the person attempts to obstruct, to prevent, to pervert or to defeat the course of justice in relation to a judicial power; and
(b) the judicial power is the judicial power of the Commonwealth.
It was said in Mr Gargan’s pleading in the County Court that an amount of $165,000 was payable by way of penalty and, amongst other things, that the Commonwealth would be obliged to make restitution.
On 24 April 2007, the plaintiffs to the County Court proceeding sought, and apparently obtained, default judgment against the Commonwealth. On 22 May 2007, the Commonwealth issued a summons for the default judgment to be set aside and for the proceeding to be dismissed under r 23.01 of the County Court Civil Procedure Rules 2008 (Vic) as not disclosing a cause of action, as being scandalous, frivolous or vexatious, or as being an abuse of process of the court. On 1 June 2007, Judge Holt of the County Court set aside the orders which had been made by default on 24 April 2007 and dismissed the proceeding as it did not disclose a cause of action. The plaintiffs, including Mr Gargan, were ordered to pay the defendant’s costs. The basis of the orders dismissing Mr Gargan’s proceeding show that it was vexatious as lacking in merit or substance and founded upon outlandish claims.
The event complained of by Mr Gargan in the County Court proceeding was a refusal to accept for filing a proceeding in the High Court on 4 October 2006. Mr Gargan also sought orders in this Court in relation to the writ which had been presented to the High Court and not filed on 4 October 2006. In this Court, Mr Gargan, as the only plaintiff, sought leave to issue proceedings seeking orders that the writ which had been presented on 4 October 2006 be amended and issued in the name of the Queen. Mr Gargan’s application was made by document dated 19 October 2006 in which he also sought that the writ which had been presented to the High Court Registry on 4 October 2006 be remitted to this Court under s 44 of the Judiciary Act 1903 (Cth) for directions to prepare the matter to be tried with a jury. Leave was not granted to issue the proceeding by the Prothonotary and upon reference to Whelan J (as his Honour then was), his Honour did not order the Prothonotary to issue Mr Gargan’s proposed pleading. On 10 October 2006, Mr Gargan applied to the High Court for leave to issue the proceeding he had attempted to institute on 4 October 2006, and that application was refused by Hayne J on 9 November 2006. In refusing leave, his Honour said of the dispute:
That dispute, its substance, and the legal rights and duties which are said to arise from it are nowhere identified in the proposed Statement of Claim. Indeed, for the most part the proposed Statement of Claim is unintelligible. The document which Mr Gargan seeks to issue and file discloses no arguable cause of action against any of the proposed defendants. To issue the proceeding would be an abuse of process of the Court.[23]
I accept the submission of the Attorney-General that it is clear from the nature of the relief in the County Court proceedings that the proceeding was vexatious. That conclusion is confirmed by the observations of Hayne J.
[23]In the Matter of an application by Peter Alexander Gargan for leave to issue a proceeding (Unpublished, High Court of Australia, Hayne J, 9 November 2006).
The next proceeding relied upon by the Attorney-General was Magistrates’ Court proceeding W01428861 in which Mr Gargan issued a charge and summons in the Magistrates’ Court against the Federal Court of Australia. Mr Gargan’s charge against the Federal Court of Australia was described as follows:
At Melbourne on the 24th April 2007, at level 7 305 William Street Melbourne 3000, the Federal Court of Australia, a body corporate did refuse to issue a lawfully presented process seeking to put in motion the […] course of justice in respect of the Judicial power of the Commonwealth and bu [sic] so doing has attempted, in a way not specifically defined in the Crimes Act1914 (Cth) to obstruct, prevent, pervert or defeat the course of justice in respect of the Judicial power of the Commonwealth.
On 26 June 2007, Mr Stephen Linden, Senior Lawyer with the Australian Government Solicitor, wrote to the Criminal Coordinator at the Melbourne Magistrates’ Court in connection with Mr Gargan’s proceeding against the Federal Court of Australia. In that letter he confirmed that he acted for the Federal Court of Australia and requested an adjournment of the first mention of the proceeding to give an opportunity to the Commonwealth Director of Public Prosecutions to consider taking over the prosecution of the proceeding instead of Mr Gargan. The proceeding was adjourned to 22 August 2007 and, on 9 August 2007, the Commonwealth Director of Public Prosecutions wrote to the Registrar of the Melbourne Magistrates’ Court in connection with the proceeding to advise that the Director had taken over the proceeding pursuant to s 9(5) of the Director of Public Prosecutions Act1983 (Cth) and had declined to carry on the proceeding. A copy of the Director’s decision made 7 August 2007 was enclosed with the letter to the Registrar of the Melbourne Magistrates’ Court. On 22 August 2007, Magistrate Bryant struck out the proceeding. The proceeding commenced by Mr Gargan in the Magistrates’ Court against the Federal Court of Australia based upon its refusal to issue a proceeding was plainly untenable and groundless such as to be utterly hopeless.[24]
[24]A-G (Vic) v Weston [2004] VSC 314, [14] (Whelan J).
The next proceeding relied upon by the Attorney-General was that commenced in the Magistrates’ Court numbered A10333898 and issued by Mr Gargan on 8 February 2010 against a Mr Bamber and the Sheriff of New South Wales. The proceeding was in the name of Mr Gargan alone, but sought to restrain the defendants from gaining possession of a property owned by a Mr Peter James Spencer in respect of which Mr Gargan made no claim and had no interest.
Mr Spencer’s property was subject to a warrant for possession issued by the Supreme Court of New South Wales on 10 December 2009. The Magistrates’ Court’s summons to Mr Bamber and the Sheriff was in the following terms:
You are summoned to attend before the Court on the hearing of an application by Peter Alexander Gargan for an Interlocutory Injunction, under Section 12GD of the Australian Securities and Investments Commission Act2001 restraining you from continuing to attempt to gain possession of a Property known as “Saarahnlee” Shannons Flat Cooma owned by Peter James Spencer on an alleged claim of breach of Mortgage, prosecuted in the Supreme Court in New South Wales, and subject of a fraudulent Court Order obtained without due process of law in the Supreme Court of that State. Further you are obliged when dealing with Freehold Land to only use a court capable of exercising the judicial power of the Commonwealth. Failure to do so is an offence against S 43 Crimes Act1914 (Cth) and must be restrained.
It is significant, and may be sufficient in itself, that Mr Gargan has issued proceedings in respect of property over which he has no personal interest and which had been the subject of proceedings in which he had not been a party. No legal or equitable interest of Mr Gargan is shown or claimed in respect of the property. In addition, however, I note that what the summons purports to do is to seek an injunction to restrain an official to execute the order of a court.
Mr Gargan’s application was dismissed by Magistrate Braun on 2 March 2010 on the basis that the claim was not within the jurisdiction of the Magistrates’ Court and because Mr Gargan had no interest in the relevant property. Mr Rodney McInnes, a solicitor employed at the VGSO, appeared for the Sheriff of New South Wales in the Magistrates’ Court proceeding on 2 March 2010 before Magistrate Braun. His Honour gave oral reasons for dismissing Mr Gargan’s application and Mr McInnes took notes of the reasons as they were delivered by his Honour. Amongst the reasons expressed by his Honour was the impossibility of a conspiracy as claimed by Mr Gargan, because the Sheriff would have had no contact with the matter until the writ for possession had been issued and delivered to him for execution.
His Honour also observed that the Magistrates’ Court had no power to grant relief unless Mr Gargan could demonstrate that he had a cause of action which was known to the law and which fell within the Court’s jurisdiction. Mr McInnes noted that in dismissing the application his Honour concluded that “first the matter [was] not urgent, secondly because the matter [was] not within the Court’s jurisdiction, and the fact that Mr Gargan does not claim to have any interest, either legal or equitable in the property the subject of the writ, the application must be refused”. The proceeding was plainly untenable and, given the lack of jurisdiction and the lack of interest in the relevant subject matter, was without reasonable grounds. It is perhaps appropriate to note at this point that the affidavit filed by Mr Gargan in the proceeding before me does not challenge any of the facts deposed to in the affidavits which had been filed by Mr Lee or Mr McInnes.
The next proceeding relied upon by the Attorney-General was another in respect of which Mr Gargan intervened in proceedings of third parties in respect of which Mr Gargan had no other interest. It was brought in the Magistrates’ Court, was numbered A10518813 and was commenced on 25 February 2010. It sought relief by Mr Gargan, as co-plaintiff with a Mr Llewellyn Buultjens, of “an Interlocutory Injunction, under Section 80 of the Trade Practices Act 1974 restraining [the defendant; namely, the Registrar of the Federal Court and the Commonwealth] from continuing to attempt to deny access to an Appeal to a Full Court constituted by three Judges, on an alleged claim that a single Judge can be a Full Court when the Statute, the Federal Court of Australia Act1976 clearly in S 14 defines a Full Court as three or more Judges, and one Judge, Gray J, cannot be a Full Court so as to deny an appeal to such a court”.
The Magistrates’ Court proceeding (in which Mr Gargan is described as the first plaintiff) related to an indication which Mr Buultjens had received from the Department of Immigration in 2009 that he could no longer remain in Australia. Mr Buultjens had sought and was refused relief by the Federal Court. On 18 December 2009, Marshall J had heard and dismissed with reasons the application made by Mr Buultjens. On 16 February 2010, Gray J heard and refused an application for leave to appeal from the orders made by Marshall J. On 25 February 2010, Mr Buultjens attempted to file an appeal from the decision of Gray J, but the Registrar of the Federal Court refused to accept the documents for filing on the grounds that Mr Buultjens had no right of appeal.[25]
[25]See Gargan v Commonwealth of Australia [2010] VSC 392.
On 25 June 2010, the interlocutory application made by Mr Gargan and Mr Buultjens in the Magistrates’ Court was refused and costs were awarded in favour of the Registrar of the Federal Court. The proceeding, having been brought in relation to other legal proceedings in respect of which Mr Gargan had no interest, had no reasonable grounds and, given the jurisdiction and the nature of the relief sought in the Magistrates’ Court, was obviously untenable.
Further relief was sought by Mr Gargan in relation to Mr Buultjens in the Supreme Court proceeding number S CL 2010 03710. On 19 July 2010, Mr Gargan, as sole plaintiff, issued a summons on originating motion seeking to transfer to the Magistrates’ Court the proceedings involving Mr Buultjens and seeking also an injunction restraining the Commonwealth from deporting Mr Buultjens. Mr Gargan also sought an order under s 15A of the Crimes Act1914 (Cth) and a penalty in the amount of $165,000 as prescribed by s 43 of the Crimes Act1914 (Cth). The proceeding in this Court was dismissed by Robson J on 23 July 2010 with reasons published that day.[26] His Honour considered the standing of Mr Gargan to bring the proceeding before him, as well as the application to the Magistrates’ Court on which the proceeding was, in part, based, and concluded:
In my opinion, therefore, Mr Gargan has no standing to bring the summons and the originating motion. The summons on originating motion merely repeats the originating motion, and in view of the circumstances I accept the submissions of Mr Knowles that it is appropriate not only to dismiss the summons but also to dismiss the originating motion, which I now do with an order for costs.[27]
That proceeding, like the others involving Mr Buultjens, was untenable.
[26]Ibid.
[27]Ibid [19] (Robson J).
The next proceeding relied upon by the Attorney-General was the appeal to the Court of Appeal from the decision of Robson J. On 5 August 2010, Mr Gargan issued a notice of appeal, by document dated 4 August 2010, from the judgment of Robson J delivered on 23 July 2010. On 16 August 2010, the respondent to the appeal, the Commonwealth of Australia, filed a summons seeking that the notice of appeal be summarily dismissed on the basis that (a) it was not competent because it did not comply with the requirements of r 64.05(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), and (b) that the notice of appeal did not disclose a cause of action, that it was scandalous, frivolous or vexatious, or that it was an abuse of process of the court. On 24 September 2010, the Court of Appeal, constituted by Warren CJ and Mandie JA, ordered the dismissal of the appeal. The Court’s reasons were delivered by Mandie JA,[28] in the course of which his Honour described the appeal as hopeless and the notice of appeal as incompetent.
[28]Gargan v The Commonwealthof Australia (Unreported, Supreme Court of Victoria Court of Appeal, Warren CJ and Mandie JA, 24 September 2010).
The next proceeding relied upon by the Attorney-General was that issued in the Magistrates’ Court numbered A10622176 commenced by Mr Gargan on 5 March 2010 against the Victorian Government Solicitor, Mr Bamber, and the New South Wales Sheriff alleging, amongst other things, that the defendants:
[a]t Melbourne on the Second of March 2010, by their agent Rodney McInnes a Crown Law Officer, they procured a Magistrate, One Magistrate Braun, to deny the power and authority of Her Majesty Elizabeth the Second and dismiss the above cited case without a trial, depriving the plaintiff and the Crown in right of Victoria of their just reward, as a Commonwealth public official and Sovereign by the definitions contained in the Crimes Act1914 (Cth) and Criminal Code Act1995 (Cth) Dictionary.
This proceeding related to the interlocutory application which Mr Gargan had filed in the Magistrates’ Court of Victoria on 8 February 2010 in proceeding A10333898 considered above. His complaint was, in effect, that the order made by the learned Magistrate was actionable.
In that proceeding the VGSO, the first defendant, filed a notice of defence on 8 April 2010 in the Melbourne Magistrates’ Court. On 15 April 2010, the VGSO filed an interlocutory application for an order under either r 9A.01(1) or r 9A.02 of the Magistrates’ Court Civil Procedure Rules2009 (Vic). On 29 April 2010, the complaint was struck out as against the first defendant. The Court’s decision sheet of that day incorrectly recorded the order as having been made under “r 9A.01(2)(b)”, but it is plain that it could only have been made under r 9A.01(1)(B), which provides that:
If a proceeding generally or any claim in a proceeding is scandalous, frivolous or vexatious the court may upon the application of a defendant who has filed a defence stay the proceeding generally or in relation to any claim or make an order for the defendant in the proceeding generally or in relation to any claim.
The order could not have been made under the rule erroneously recorded in the decision sheet because that rule only applies to orders made in favour of a plaintiff and the order which was made was one in favour of the defendant. The basis of the order against Mr Gargan was plainly that the proceeding was vexatious and without reasonable ground. In any event, it plain to me that the proceeding was vexatious and without reasonable ground in light of its nature and the relief which it sought.
The next two proceedings relied upon by the Attorney-General were considered in the submissions together, but dealt with under separate headings in the affidavit of Mr Lee made 1 November 2012. Both are Magistrates’ Court proceedings. One was numbered A10612543 and was brought by Mr Gargan with Ms Cathryn Young and sought an interlocutory injunction against the Commonwealth Bank of Australia to prevent it from executing a warrant of restoration which had been issued by the County Court in proceedings between the Commonwealth Bank of Australia and Ms Young. The second proceeding was numbered A10749261 and was also issued with Ms Young. The second proceeding was issued on 24 March 2010 against the Commonwealth Bank of Australia and the Commissioner Australian Federal Police, as second respondent, alleging breach of s 43 of the Crimes Act1914 (Cth).
Proceeding A10612543 was a summons issued on 10 March 2010 and related to a decision made by her Honour Judge Kennedy of the County Court on 5 March 2010 to order the Registrar to issue a warrant of restoration in favour of the Commonwealth Bank of Australia. The summons, dated 10 March 2010, disclosed no interest of Mr Gargan in the property which was the subject of the warrant. The summons issued on 10 March 2010 was dismissed with costs on 18 March 2010. Her Honour Judge Kennedy subsequently gave reasons for judgment in the proceeding between the Commonwealth Bank of Australia and Ms Cathryn Young on 14 December 2010 and no interest of Mr Gargan was indicated or in any way maintained or agitated by any of the parties. The proceeding which Mr Gargan had brought with Ms Young was untenable by him and vexatious.
The summons in proceeding A10749261 was issued on 24 March 2010 by Mr Gargan, again as co-applicant with Ms Young. That was the summons against the Commonwealth Bank of Australia and the Commissioner Australian Federal Police alleging breach of s 43 of the Crimes Act 1914 (Cth). It sought relief in the following terms:
You are summoned to attend and assist before the Court on the hearing of an application by Cathryn Maree Young and Peter Alexander Gargan for an Interlocutory Injunction, under Section 12GD of the Australian Securities and Investments Commission Act 2001 and S 43 of the Crimes Act1914 restraining you the first respondent from continuing to attempt to execute a Warrant of Restoration obtained in the County Court of Victoria on Friday the 5th March 2010 on the grounds contained in the affidavit of Peter Alexander Gargan filed herewith, and you the second respondent or a deputy as representing the Commonwealth of Australia Governor General to ensure the laws of the Commonwealth as enacted by the Parliament of the Commonwealth and High Court are not treated as nugatory and ineffective and that the Constitution of Australia is held in all points.
This proceeding was dismissed with costs on 7 April 2010. It was another proceeding in which Mr Gargan lacked any legal or equitable interest in the subject matter of the proceeding which he had initiated. It made extravagant claims and was brought in a jurisdiction in which the application had no prospect of success on claims which were untenable.
The next proceeding relied upon by the Attorney-General was Magistrates’ Court proceeding A11868903, commenced by Mr Gargan against the Commonwealth and the Child Support Registrar. On 13 July 2010, Mr Gargan filed in the Magistrates’ Court an interlocutory application in respect of an order made on 6 April 2010 by the Federal Court Magistrates’ Court under the Child Support (Assessment) Act1989 (Cth) against a Mr William Robert Anderson. Mr Gargan sought to restrain the Commonwealth and the Child Support Registrar from enforcing the order made by the Federal Magistrates’ Court. The summons directed to the respondents required them:
… to attend and assist before the Court on the hearing of an application by Peter Alexander Gargan for an Interlocutory Injunction, under Section 12GD of the Australian Securities and Investments Commission Act 2001 and S 43 of the Crimes Act1914 and Rule 35.04 Magistrates’ Court Civil Procedure Rules 2009 restraining you the first respondent from continuing to allow the second respondent to contumeliously and without regard to the laws of the Commonwealth, to fail to fairly and properly execute its duty, under the Child Support (Assessment) Act 1989, and to pray the Court that [the respondents] pay the appropriate penalty for [the respondents’] transgressions.
Mr Gargan’s summons went on to state that in Plenty v Dillon,[29] the High Court had determined that a summons calls upon a person to answer a charge civilly for criminal conduct.
[29](1991) 171 CLR 635.
The interlocutory application was refused on 27 July 2010. It is significant that Mr Gargan’s summons made no reference at all to any specific conduct or action he was seeking to restrain. The affidavit of Mr Lee dated 1 November 2012, however, identified the application as directed against an order which had been made by the Federal Magistrates’ Court against Mr Anderson, but that fact was not particularised or identified in any way in the summons by Mr Gargan. The complete absence of particularity in Mr Gargan’s summons is a fact in all the circumstances pointing to the proceeding as vexatious. Furthermore, however, the proceeding revealed no legal or equitable interest on the part of Mr Gargan which was sought to be protected. The claims were expressed in extravagant terms and were untenable.
The next proceeding relied upon by the Attorney-General was Magistrates’ Court proceeding B10304608, commenced by Mr Gargan against the Commonwealth, the Sheriff of Victoria and Crucis Pty Ltd. On 4 February 2011, Mr Gargan filed an application for an injunction to prevent the Sheriff of Victoria from enforcing an order for possession in favour of Crucis Pty Ltd. The summons required the respondents:
… to attend before the Court on the hearing of an application by the applicant for an injunction to prevent the second and Third respondent threatening and harassing Anathasios and Petra Helene Tanidis with eviction to gain possession of the family home in breach of S 268:10 Criminal Code Act 1995 and S 43 Crimes Act 1914, (Cth) a law of the Commonwealth, which the first respondent is obliged to enforce, execute and maintain.
The applications were refused on 10 February 2011.
The background to this proceeding was explained in Mr Lee’s affidavit of 1 November 2012. Crucis Pty Ltd had issued a writ in the Supreme Court of Victoria against a Mr Athanasios and Ms Petra Helene Tanidis for possession of land. On 23 September 2010, Mukhtar AsJ made orders of the Supreme Court granting Crucis Pty Ltd possession of the land. On 7 October 2010, his Honour dismissed an application by Ms Tanidis that the order be discharged but granted a stay of execution of the judgment until 15 November 2010. It was that order, which had no impact upon Mr Gargan, which he sought to restrain in the Magistrates’ Court.
Mr McInnes attended the hearing of the application at the Magistrates’ Court on 10 February 2011 on behalf of the Sheriff of Victoria. His Honour Mr Lauritsen heard the application and, as I have said, dismissed it. Mr McInnes made notes at the hearing of his Honour’s reasons for refusing the application. His Honour noted, in my respectful view correctly, that Mr Gargan lacked standing as he had no personal right being interfered with or which was capable of protection, and that the claim could not have been dealt with by the Magistrates’ Court in any event as it lacked jurisdiction to restrain an order of the Supreme Court.
The final proceeding relied upon by the Attorney-General was Supreme Court proceeding S CI 2012 01984. On 5 April 2012, Mr Gargan instituted proceedings by way of summons and supporting affidavit in this Court addressed to the Watchhouse Keeper at Moorabbin. The summons required the Watchhouse Keeper “to attend before the Court on the hearing of an application by [Mr Gargan] for a Writ of Habeas Corpus or a similar order” to have a judge examine the situation of a Mr James Peter Rech. The summons issued by Mr Gargan identified himself as the plaintiff but “on behalf of James Peter Rech”. It is, therefore, clear that Mr Gargan had no personal interest in the proceeding nor had any personal right which was sought to be protected.
The summons was heard by Emerton J on 13 April 2012 and dismissed by her Honour. Mr Gargan appeared at the hearing. Her Honour’s reasons refer to Mr Gargan’s argument that s 268.12 of the Criminal Code Act1995 (Cth), relating to crimes against humanity, prohibits single-sitting magistrates and judges from imposing terms of imprisonment. According to Mr Gargan, all persons in Victoria currently serving terms of imprisonment imposed by a single judge or magistrate are unlawfully detained, including Mr Rech. Her Honour was satisfied that Mr Rech’s detention was lawful and that the proceeding had no merit. It was, in addition, another proceeding brought by Mr Gargan as a party (albeit in this case expressly said to be brought on behalf of another) in respect of other proceedings in which he had no personal interest or right to protect.
I am satisfied that each of the proceedings are vexatious within the meaning of s 21 of the Supreme Court Act 1986 (Vic) and that I should make an order declaring Mr Gargan to be a vexatious litigant. I am satisfied from the 12 proceedings relied upon by the Attorney-General that Mr Gargan has habitually, persistently and without any reasonable ground instituted vexatious legal proceedings in this Court, the County Court and the Magistrates’ Court against the same and different people. In reaching that conclusion, it is not necessary to have regard to his proceedings in other States or the fact that he has been declared a vexatious litigant in other Australian jurisdictions. If, however, it had been relevant for me to consider these matters in the exercise of discretion,[30] I would have relied upon them in exercising my discretion in favour of the orders for the declarations sought by the Attorney-General. Mr Gargan has commenced seven proceedings in the Federal Court of Australia, two proceedings in the High Court of Australia, one proceeding in the Family Court of Australia, eight proceedings in the District Court of New South Wales, eight proceedings in the Supreme Court of New South Wales, three proceedings in the Magistrates’ Court of Queensland, one proceeding in the District Court of Queensland, six proceedings in the Supreme Court of Queensland, one proceeding in the Magistrates’ Court of the Australian Capital Territory, two proceedings in the Supreme Court of the Australian Capital Territory and one proceeding in the Supreme Court of Tasmania. He has been declared a vexatious litigant by order of Holmes J in the Supreme Court of Queensland on 22 May 2000, by order of Perram J in the Federal Court of Australia on 23 April 2009 and by order of Davies J in the Supreme Court of New South Wales on 1 November 2010.
[30]A-G (Vic) v Horvath [2001] VSC 269, [14]-[16] (Ashley J).
Mr Gargan has made and filed an affidavit dated 26 February 2013 in opposition to the orders sought by the Attorney-General. The affidavit contains 83 paragraphs over 15 pages. In it he makes no attempt to contradict any of the facts in the affidavits filed on behalf of the Attorney-General. Much of Mr Gargan’s affidavit recounts his personal history and complaints of a general nature against the legal system. In some respects the affidavit makes generalised and scandalous allegations against judicial officers and the legal system as a whole. In the affidavit, for example, Mr Gargan refers to the adoption of the International Covenant on Civil and Political Rights in Australian law and to the creation of a commission to enforce it as infringing the “Kable Principle”[31] and as “a vehicle for fraudulent dealing and Mafia Style Government”. There is nothing in the affidavit which persuades me against the orders sought by the Attorney-General.
[31]Kable v DPP (NSW) (1996) 189 CLR 51.
Accordingly, there will be orders made under s 21 of the Supreme Court Act 1986 (Vic):
(a)declaring the defendant, Peter Alexander Gargan, to be a vexatious litigant, and
(b)declaring that the defendant, Peter Alexander Gargan, must not, without leave of the Court, do the following:
(i)continue any legal proceedings (whether civil or criminal) in the Court, any inferior court or any tribunal constituted or presided over by a person who is an Australian lawyer, and
(ii)commence any legal proceedings (whether civil or criminal) in the Court, any inferior court or any tribunal constituted or presided over by a person who is an Australian lawyer.
6
6
0