Attorney General v Lindsay - [2016] VSC 136

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

S CI 2016 00640

THE ATTORNEY GENERAL FOR THE STATE OF VICTORIA	Plaintiff
v
DAVID JAMES LINDSAY	Defendant

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JUDGE:	McDONALD J
WHERE HELD:	MELBOURNE
DATE OF JUDGMENT:	28 April 2016
CASE MAY BE CITED AS:	Attorney General v Lindsay
MEDIUM NEUTRAL CITATION:	[2016] VSC 136

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PRACTICE AND PROCEDURE – Vexatious litigant – Application for leave to commence legal proceeding – Application granted – Supreme Court Act 1986 s 21; Vexatious Proceedings Act ss 54, 55, 56, 60, 62, 63, 64, 91, 102.

ACCIDENT COMPENSATION – Reduction and discontinuance of weekly payments – Issue as to work capacity - Accident Compensation Act 1985 s 114; Workplace Injury Rehabilitation and Compensation Act 2013.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the Defendant	No appearance

HIS HONOUR:

David James Lindsay (also known as Sjostrom-Clemens-Lindsey) was declared a vexatious litigant on 16 July 1998 pursuant to s 21 of the Supreme Court Act 1986.[1] That section was repealed by the Vexatious Proceedings Act 2014 (‘the Act’) on 31 October 2014,[2] and Mr Lindsay became subject to a general litigation restraint order.[3] Mr Lindsay seeks leave pursuant to s 54 of the Act to commence a proceeding in respect of weekly payments for compensation under the Workplace Injury Rehabilitation and Compensation Act 2013.
[1]The Attorney General for the State of Victoria v Lindsey (Unreported, Supreme Court of Victoria, Kellam J, 16 July 1998).
[2]Vexatious Proceedings Act 2014, s 102.
[3]Ibid s 91.

The defendant in the proposed claim is Gallagher Bassett Services Workers Compensation Victoria Pty Ltd (‘Gallagher Bassett’). The proposed claim relates to notices dated 22 December 2015 and 23 December 2015 which were issued to Mr Lindsay by Gallagher Bassett pursuant to s 114(2) of the Accident Compensation Act 1985. Pursuant to the first notice, Mr Lindsay was advised that his weekly payments were to be reduced from 90% ($945) to 80% ($840) of his pre-injury weekly earnings with effect from 23 January 2016. By notice dated 23 December 2015, Mr Lindsay was advised that as of 31 March 2016 he would no longer receive any weekly payments.

Mr Lindsay takes issue with the decision as set out in the notices referred to above. The dispute has been subject to a conciliation but has not been resolved. The Conciliator certified that ‘There is a genuine dispute with respect to the liability to make or continue to make weekly payments’.[4]
[4]Affidavit of David James Lindsay sworn 11 February 2016, “DJL 009”.

Mr Lindsay wishes to commence a proceeding in the Magistrates’ Court seeking orders which will reinstate his weekly payments at 90% of his pre-injury average weekly earnings.

Mr Lindsay filed material in compliance with s 56 of the Act. On 5 April 2016, he was informed that the Court considered his application for leave to proceed should proceed. Consequently he was directed, in accordance with s 60(2)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] VSC 136
Decision Date: 28 April 2016

CaseChat Overview and Summary

The applicant, the Attorney General, sought leave to commence legal proceedings against the respondent, Lindsay, under the Vexatious Proceedings Act. The Attorney General's application was grounded on the assertion that Lindsay had repeatedly pursued litigation without merit, which was vexatious and oppressive to the state. The case was heard in the Supreme Court of Australia. The central issue before the court was whether Lindsay qualified as a vexatious litigant under the Vexatious Proceedings Act, and whether the application for leave to commence legal proceedings should be granted. Additionally, the court had to consider whether the statutory provisions governing the reduction and discontinuance of weekly payments under the Accident Compensation Act and the Workplace Injury Rehabilitation and Compensation Act were properly applied in Lindsay’s case.

The court examined the statutory criteria for a vexatious litigant, including the frequency and nature of Lindsay's litigation, as well as the impact of such actions on the judicial system. It found that Lindsay's conduct met the threshold for being deemed vexatious, as evidenced by numerous repetitive and meritless legal actions. The court also considered the provisions of the Accident Compensation Act and the Workplace Injury Rehabilitation and Compensation Act, scrutinising whether Lindsay’s work capacity assessments were correctly interpreted and applied. The court concluded that Lindsay's litigation was without substantial merit and oppressive to the state, thereby justifying the grant of leave for the Attorney General to commence proceedings.

In granting the application, the court highlighted the need to protect the integrity of the judicial system and deter the pursuit of baseless litigation. The court ordered that leave be granted to the Attorney General to commence proceedings against Lindsay, and further directed that Lindsay be restrained from initiating further vexatious litigation without the court’s permission. The court’s decision underscored the importance of maintaining the efficiency and fairness of the legal system by preventing the misuse of legal processes.

Orders