Attorney General v Kay

[2005] VSC 349

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6562 of 1998

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Plaintiff (Respondent)
v
IAN KAY	Defendant (Applicant)

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JUDGE:	BYRNE J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2005
DATE OF JUDGMENT:	1 September 2005
CASE MAY BE CITED AS:	Attorney General v Kay
MEDIUM NEUTRAL CITATION:	[2005] VSC 349

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PRACTICE and PROCEDURE – vexatious litigant order – application to set aside order – whether there is now no real risk that applicant will bring vexatious proceedings.
Supreme Court Act 1986 s. 21(5)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms E Gardner	Victorian Government Solicitor
The Defendant appeared in person

HIS HONOUR:

1. Before the Court is an application brought by summons filed on 4 May 2005 whereby Ian Kay seeks to set aside an order made on 23 February 1999 declaring him to be a vexatious litigant.  This order was unsuccessfully appealed by Mr Kay in September 2000.[1]

   [1](2000) 2 VR 436.

1. The application is brought pursuant to s 21(5) of the Supreme Court Act 1986 which confers on the Court the power to set aside or revoke the order if it considers it proper to do so. It has been established by authority that the power under this section is not a substitute for an appeal; the applicant cannot challenge the propriety of the original order. The power:

“… is confined in its operation to cases where there has been a change in the relevant circumstances since the making of the original order such as to make it appropriate that the order be varied, set aside or revoked.”[2]

[2]Kay v Attorney-General (2000) 2 VR 436 at 444 [23] per Chernov JA, Ormiston and Batt JJA concurring.

1. I should note by way of background that the order of February 1999 was made following a great many applications and proceedings brought by Mr Kay in the courts of this State in his efforts to set aside an intervention order made against him in 1994 which was in 1995 extended until further order.  These intervention orders were made on the application of Heather McIntosh, the then wife of Mr Kay.  He has maintained that these intervention orders ought not to have been made and that they were based on perjurious evidence.  He maintains that these orders have for some 11 years denied him the right to see his children who are now grown up.[3]  These are matters of great concern to Mr Kay but they are of no relevance for present purposes.

   [3]They are now about 24 years, 22 years and 19 years old respectively.

1. I repeat, the applicant must demonstrate that, since the making of the order in February 1999, circumstances have changed so that there is no real risk of his engaging further in conduct of the kind which attracted the initial making of the vexatious litigant order.[4]

   [4]Bienvenu v Attorney-General [1982] VR 563 at 565 per Crockett J.

1. When the matter was called on for hearing, Mr Kay said three things of a preliminary nature.  First, that I should recuse myself because I have heard and rejected applications made by him on earlier occasions.  My researches disclose that I did in fact hear two applications involving Mr Kay, on 24 October 1997 and on 1 October 2003 respectively.  I do not consider that these matters were such that I should decline the responsibility of hearing this application which has been allocated to me.

1. Second, he wanted an adjournment so that he could retain senior counsel.  On my enquiry it became apparent that he has not the resources nor the expectation of obtaining any such representation.  He said that this was a consequence of the February 1999 order which he wanted to have revoked.  He then asked that I make an order that he have publicly funded representation.  I am not at all sure that I have the power to do this and, in any event, no such order was made, so that the reason for the adjournment fell away.

1. Third, he said that this was merely a preliminary hearing at which he wanted to subpoena witnesses whom he would cross-examine.  I pass over the evident difficulty that he would not ordinarily be permitted to cross-examine a witness whom he called to give evidence.  Mr Kay had on 8 August 2005 filed a document in the nature of an application for an order permitting him to subpoena certain unidentified witnesses.  When I enquired whom he wanted to subpoena, he gave me a list of some six names, all of whom, he said, would be able to give evidence as to the invalidity of the intervention orders of 1994 and 1995 and the subsequent proceedings to enforce suggested breaches of those orders.  In short, it is apparent that these people were not to be called to give any evidence which would be relevant to the present application.  I therefore rejected his request that the matter be adjourned for this reason.

1. I turn now to the matters which are relevant to the present application.  This is Mr Kay’s fourth application brought to set aside the vexatious litigant order of February 1999.  He has also, on numerous occasions, sought leave to commence proceedings for the purpose of setting aside the intervention order and for other purposes.  On three occasions[5]  leave has been granted.  On the last he was permitted to apply for the revocation of the intervention order of 1995 and he was on 22 June 2005 successful in having it modified.

   [5]19 July 1999, 18 August 2003 and 20 October 2003.

1. He produced to me also a draft writ which he has tried to issue out of the High Court against the Attorney-General for the Commonwealth and the seven Premiers or Chief Ministers of the States and the Northern Territory, seeking orders that they be compelled to give to him the statistics with respect to children who have been sexually abused while their father was the subject of a restraining order.

1. The fact that a litigant feels strongly that he has suffered injustice is not necessarily the sign that he is vexatious.  Nor is the fact that such a person has sought on a number of occasions to approach the Court.  Likewise, I should not be distracted by the fact, as here, that the litigant expresses himself in an intemperate, angry or even abusive and offensive manner or that the litigant labours under a lack of familiarity with substantive or procedural law.  On the other hand, Mr Kay’s steadfast refusal to accept that this application is not about the correctness of the order of February 1999 nor of the orders which preceded this order, is an indication that he will, if not restrained, bring proceedings which are not based on any legal principle and which can achieve nothing other than the harassment of the parties named as defendants and the needless waste of legal costs and Court resources.  My apprehension as to this is further supported by the material handed to me by Mr Kay in the course of the hearing.  These show that he has become obsessed by what he sees as a conspiracy of politicians, police, courts and his ex-wife, and women generally, against him, and the fathers of children generally.  If he wishes to bring proceedings to achieve the objectives which he professes in this material, it is better that he do so under the supervision of the Court.

1. I return to the legal principles which govern an application of this kind.  It is for the applicant, Mr Kay, to satisfy me that things have changed since 1999 so that there is no risk that he will in the future commence vexatious legal proceedings in this Court or in any inferior court.  I am not so satisfied.  The application will be dismissed.

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