Attorney-General v O'Sullivan
[2017] VSC 592
•21 August 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2008 9891
BETWEEN:
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| DALE GARY O’SULLIVAN | Defendant |
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JUDGE: | Digby J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 August 2017 |
DATE OF JUDGMENT: | 21 August 2017 |
CASE MAY BE CITED AS: | Attorney-General v O’Sullivan |
MEDIUM NEUTRAL CITATION: | [2017] VSC 592 |
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PRACTICE AND PROCEDURE – Application to revoke an order declaring a person a vexatious litigant – Whether in the interests of justice to revoke an order under the Vexatious Proceedings Act 2014 – General related considerations – Vexatious Proceedings Act 2014, ss 65 and 69(1)(b)
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Bayly | Victorian Government Solicitor |
| For the Defendant | In Person |
HIS HONOUR:
The Defendant’s Application
By an application dated 30 January 2017, Dale Gary O’Sullivan (the defendant) seeks leave to apply and thereafter pursue his application to revoke a Litigation Restraint Order which declared him a vexatious litigant in 2009 (Application for leave to apply to revoke Litigation Restraint order) on the basis of changed circumstances.
Pursuant to an Order made on 2 December 2009 (the Original Order), the defendant is a person declared to be a vexatious litigant under s 21 of the Supreme Court Act 1986 (Vic) (the Supreme Court Act).
The background to the Original Order is that on 24 November 2008 the Attorney-General for the State of Victoria (the plaintiff) filed an Originating Motion seeking an order pursuant to s 21 of the Supreme Court Act that the defendant be declared a vexatious litigant. This application marked the commencement of these proceedings.
On 2 December 2009, Pagone J made the Original Order pursuant to s 21 of the Supreme Court Act declaring the defendant a vexatious litigant.
It is noteworthy that the Original Order is subject to several exceptions, in particular the Original Order does not require the defendant to seek the leave of the Court to commence proceedings, save where he is unrepresented. I also note that the Original Order was not authenticated as a consent order although it was consented to by the defendant and the plaintiff.[1]
[1]The Original Order is not expressed to be a “consent order”. However the transcript of the hearing before Pagone J on 2 December 2009 indicates that it was intended that the Orders of 2 December 2009 were to be consent orders and it recorded the defendant’s consent to the Orders made on that occasion: T4.1-4, T4.29-31 and T5.1-8.
General Historical Background
A brief history of the events that led to the defendant being declared a vexatious litigant are set out in the affidavit of Stephen Joseph Lee sworn 20 November 2008 filed in this proceeding. That affidavit outlines the history of many proceedings brought before the Court by the defendant since about 1989.
I refer to this historical affidavit material solely by way of background. I have not taken this material into account in the exercise of my discretion on this application which is not in the nature of a reconsideration of the merits of the Original Order.
In broad summary, between 1989 and 20 November 2008 the defendant commenced at least 100 proceedings.[2] The plaintiff did not however seek to rely upon all of those proceedings to establish that the defendant was a vexatious litigant for the purposes of the plaintiff’s 2008 application under the Supreme Court Act.
[2]Affidavit of Stephen Lee, 20 November 2008.
The key proceedings which the plaintiff argued rendered the defendant a person who should be declared a vexatious litigant were:
(a) several Intervention Order proceedings in the Magistrates' Court, relating to a certain Policeman and several other persons including at least one Herald Sun journalist;
(b) a number of civil proceedings in the Magistrates' Court of Victoria concerning the Victoria Police;
(c) a number of County Court of Victoria proceedings including appeals in relation to the refusal to grant or revoke Intervention Orders;
(d) a number of Supreme Court of Victoria proceedings against the Victoria Police including judicial review applications in relation to a charge filed against the defendant;
(e) a number of proceedings in the Victoria Civil and Administrative Tribunal, including 15 proceedings against Victoria Police, proceedings against the State Electricity Commission and Community Services Victoria, the Department of Health and Community Services, VicRoads, the City of Camberwell, the Business Licensing Authority, the Guardianship and Administrative Board and the Victorian Firearms Appeals Committee.
It appears that the defendant’s fractious interaction with Victoria Police from about 2000 appeared first following a dispute with a neighbour which led to stalking charges against him.
There have also been a number of applications made by the defendant since the Original Order declaring the defendant a vexatious litigant. All applications made to the Court by the defendant since he was declared a vexatious litigant have been in the nature of applications for leave to apply to the Magistrates' Court of Victoria to commence, vary or extend intervention orders. The defendant has from time to time been granted leave in respect of each of those applications during 2012, 2013 and 2014.
Recent Background to the Defendant’s Application
On 21 February 2017, Ginnane J made Orders under s 65(1)(a) of the Vexatious Proceedings Act 2014 (Vic) (the Vexatious Proceedings Act) granting leave to the defendant to apply to revoke the Original Order. The defendant was ordered to file his foreshadowed application on or before 21 April 2017 and serve notice of that application on the plaintiff within five working days of filing the leave application with the Court.
Pursuant to the leave referred to the defendant’s application to vary or revoke the Original Order pursuant to s 65(1)(a) of the Vexatious Proceedings Act was filed with the Court on 19 April 2017.
Material Relied Upon
Both the defendant and the plaintiff have filed a number of affidavits in this application.[3]
[3]Affidavit of Dale O’Sullivan, 1 June 2017; Affidavit of Dale O’Sullivan, 21 July 2017; Affidavit of Dale O’Sullivan, 14 August 2017; and Affidavit of Katharine Brown, 3 July 2017.
The defendant’s affidavit material, which includes in effect his written submissions, puts forward a number of reasons why he contends he should have the Original Order revoked.
The Defendant’s Submissions
The defendant contends that, as a result of his declared status as a vexatious litigant, he has suffered and continues to suffer stigma and humiliation as a result of being associated with other vexatious litigants such as Mr Julian Knight. This, the defendant emphasises, is a circumstance which he finds very disconcerting and unfair and which he feels is in the nature of a public shame which he does not deserve and considers unjust and unjustified. The defendant argues that these matters constitute a reason why it is in the interests of justice for his present status as a vexatious litigant to be revoked.
The defendant also seeks to rely upon the Original Order being obtained by consent[4] and the nature of the Original Order which includes certain exceptions in his favour. The defendant argues that because of these special features of the Original Order declaring him to be a vexatious litigant it is unjust and unfair that the Original Order, and the operative legislation, result in him remaining grouped with other vexatious litigants and he contends it is unjust and unfair that the Original Order should operate forever.
[4]The Original Order is not expressed to be a “consent order”. However the transcript of the hearing before Pagone J on 2 December 2009 indicates that it was agreed by the parties and intended that the Orders of 2 December 2009 were to be made as consent orders and records the defendant’s consent to the Orders made on that occasion: T4.1-4, T4.29-31 and T5.1-8.
The defendant also refers to and relies upon what he submits are changes in his circumstances in respect of:[5]
[5]His affidavit material, principally in his affidavit of 14 August 2017 which reflects his submissions, contends that the defendant has had a change of relevant circumstances.
(a) his historical issues with the Victoria Police which he contends are no longer relevant. The defendant observes that the particular Policeman with whom he earlier conflicted is no longer a police officer and the defendant states that in his view the behaviour of the Victoria Police towards him has improved very considerably and, he asserts, that he has no subsisting issues in this regard;
(b) the fact that he is now 76 years old and is experiencing deteriorating health. The defendant also submits that his lack of financial capacity to pursue litigation, and his age and his deteriorating health are factors rendering it unlikely that he will in the future attempt to pursue unwarranted litigation. The defendant refers to his past expenditure on earlier litigation which he contends, in essence, has now made him litigation averse and put him in a position where he does not have the personal wealth to now fund litigation;
(c) the effluxion of time since the Original Order during which no vexatious conduct has been perpetrated by him. The defendant contends that it therefore should not be concluded against him that he cannot control his urge to litigate. The defendant in this regard refers to the length of time that has passed since the last instigation of litigation considered by the Court to be in the nature of vexatious litigation; and
(d) his personality and propensities. The defendant relies upon a report from his psychiatrist, Dr Lester Walton, in an endeavour to establish a material change of circumstances, in particular in relation to his personality, rendering it unlikely that he will pose a risk of recommencing his earlier vexatious conduct.
The defendant also asserts that he cannot envisage any future need to initiate applications including in the nature of intervention orders.
The Relevant Legislation
Under s 91 of the Vexatious Proceedings Act the Original Order which was made pursuant to s 21 of the Supreme Court Act continues in force as though it were a general litigation restraint order made under s 29 of the Vexatious Proceedings Act.
The defendant’s application of 19 April 2017 seeks an order under s 69(1)(b) of the Vexatious Proceedings Act that the Original Order be revoked.[6]
[6]No application was made to vary the Original Order under s 69(1)(a) of the Vexatious Proceedings Act.
Defendant’s Application for Leave to Conduct an Oral Hearing
Section 71 of the Vexatious Proceedings Act evinces Parliament's intention that an application such as the present one be dealt with by the Court on the papers. Indeed s 71(2) provides that the Court should only permit an oral hearing in an application such as this if it considers that there are ‘exceptional circumstances’ and ‘it is appropriate to do so having regard to the interests of justice’.
At the outset of this application, I considered the parties' submissions in relation to this preliminary procedural aspect.
In summary, the defendant sought to have the opportunity to make oral submissions in addition to relying on the materials he had filed in support of his application of 19 April 2017.
The plaintiff, in substance, took a neutral position on this aspect, not arguing for or against leave being granted to the defendant to make oral submissions in support of his application.
On 21 August 2017 I ruled that because the defendant's material appeared to make it sufficiently clear that he experiences real difficulty communicating his case in written format and therefore a real risk arises that his application may be prejudiced were he to be prevented from making oral submissions, the defendant should be given the opportunity, in the interests of justice to make short oral submissions to elucidate his application.
In my view, the circumstance referred to in the last preceding paragraph amounts in this particular case to an exceptional circumstance under s 71(2) of the Vexatious Proceedings Act and rendered it just and appropriate to permit oral submissions by the defendant including because it would be unjust not to grant such leave given the defendant’s particular difficulty to which I have referred and because of the risk of prejudice and injustice if he could not orally address the court.
The Plaintiff’s Submission
The plaintiff opposes the defendant’s substantive application.
The plaintiff’s opposition to the defendant’s application is supported by the following submissions by the plaintiff.
As at the date the Original Order s 21 of the Supreme Court Act provided that –
(1)The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant.
(2)The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person 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.
…
(5)The Court may at any time vary, set aside or revoke an order made under subsection (2) if it considers it proper to do so.
The Vexatious Proceedings Act came into effect on 31 October 2014 and repealed s 21 of the Supreme Court Act.
Under s 29(1) of the Vexatious Proceedings Act, on the application of the Attorney-General, the Court may make a general litigation restraint order against a person if the Court is satisfied that a person has persistently and without reasonable grounds, commenced or conducted vexatious proceedings.
Such a general litigation restraint order may, pursuant to s 30 of the Vexatious Proceedings Act, provide that the subject person must not, without leave, commence or continue in any proceedings in a Victorian court or tribunal, and may be subject to such conditions as the Court considers appropriate
A general litigation restraint order persists for the duration specified in the relevant order. In this instance, the Original Order fixed no temporal limitation.
The provisions of the Vexatious Proceedings Act include transition related provisions and in that regard s 91(1) of the Vexatious Proceedings Act provides that an order made under s 21 of the Supreme Court Act before the date of commencement of operation of the Vexatious Proceedings Act declaring a person to be a vexatious litigant is taken to be a general litigation restraint order made by the Supreme Court under s 29 of the Vexatious Proceedings Act. The terms of the Original Order are therefore unaffected by the Vexatious Proceedings Act.
As a result, an order made under s 21 of the Supreme Court Act is deemed to be a general litigation restraint order made under s 29 of the Vexatious Proceedings Act and therefore the revocation of such an order is governed by Part 9 of the Vexatious Proceedings Act.
Under s 69(1) of the Vexatious Proceedings Act the Court now has power to revoke or vary the Original Order if it considers that it is in the interests of justice to do so.
No specified criteria is prescribed by or in respect of s 69(1)(b) of the Vexatious Proceedings Act in relation to the revocation of a general litigation restraint order, beyond the stipulation of that section that to make such an order it is necessary for the Court to be satisfied that it is in the interests of justice to do so.
In Johnson v Appeal Costs Board,[7] the Chief Justice endorsed an observation made by Nicholson CJ in Re Chapman & Jansen[8] in which Chief Justice Nicholson stated:
In my view the expression "the interests of justice", is not one which should be narrowly defined and indeed it may not be particularly helpful to attempt to define it at all. I do not think that it is a concept which courts should find difficult to apply. The interests of justice will vary from case to case, and I think that, in general, in considering applications under this legislation, a broad approach is the approach to be preferred.
[7][2014] VSC 313, [38].
[8][1990] FamCA 51, [32].
The plaintiff argues for the broad interpretation of the phrase ‘in the interests of justice’.[9]
[9]Plaintiff’s submissions, 31 July 2017.
The plaintiff submits that the persons whose interests are relevant may vary depending on the context. The plaintiff submits that generally the interests of justice are not the same as the interests of one party or even all the parties to the proceedings because relevant interests extend beyond the private interests concerned.[10]
[10]Mortimer v West [2017] VSC 293, [72].
In determining whether a general litigation restraint order should be revoked the plaintiff submits that the persons whose interest ought to be taken into account necessarily extends beyond the person who is the subject of the order and the plaintiff submits should include persons against whom the subject of the order might be minded to commence unmeritorious proceedings and also other litigants whose interests may be adversely affected if scarce judicial and quasi-judicial resources are diverted from meritorious proceedings to unmeritorious proceedings and further, judicial and quasi-judicial officers who may be required to spend significant time and energy conducting oral hearings and drafting reasons for judgment in unmeritorious proceedings and, further, also extend to the wider community which has an interest in the efficient and cost effective operation of the state's judicial system and quasi-judicial tribunals.
The plaintiff submits that while the exercise of a discretion in the interests of justice will not generally be dependent on the discharge of a formal burden of proof, a party seeking the exercise of this discretion will ordinarily have to demonstrate reasons as to why the discretion should be exercised.
In Knight v Attorney-General for Victoria[11], a decision relied upon by the plaintiff in its submissions, Justice Byrne held that a person seeking an order under s 21(5) of the Supreme Court Act revoking an order, declaring him or her a vexatious litigant, bore the onus of adducing evidence sufficient to satisfy the Court that the order should be revoked. His Honour said -
Finally, Mr Knight returned to the fundamental point that he is not likely to offend if the order is removed. It is for him to demonstrate this. In my opinion he has failed to do so. While it may be correct that he has not brought in the period since 2004, proceedings which may be treated as groundless, he has offered no positive evidence which leads me to conclude that he will not once again continue his pre 2004 litigation behaviour if the order were revoked.
[11][2009] VSC 287 at [25].
The plaintiff submits that the approach taken by Byrne J in Knight v Attorney-General for Victoria, should be adopted where application is made for the revocation of a general litigation restraint order under s 69(1)(b) of the Vexatious Proceedings Act, and to invoke the Court’s discretion the applicant must be able to point to evidence sufficient to reasonably assure the Court that, absent the extant order, the applicant will not revert to his or her pre-intervention conduct.
The plaintiff also makes the point that the power exercised by the Court pursuant to s 69(1)(b) of the Vexatious Proceedings Act does not extend to authorising the Court to revisit the Original Order and the plaintiff further submits that it would amount to an abuse of process to do so.
Ultimately the plaintiff, after identifying the defendant’s argued bases for the orders he seeks,[12] submits that the defendant’s application does not put forward matters sufficient to establish with any degree of confidence that were the Original Order to be revoked, the defendant will not revert to his pre-2009 behaviour.
[12]Plaintiff’s Submissions, 31 July 2017, [17], [18] and [19].
The plaintiff concedes that the matters referred to in paragraphs [16] – [19] hereof, including Dr Walton's report, are matters of potential relevance to the defendant's application, however the plaintiff submits that such matters are not sufficient to establish with any degree of confidence that if the Original Order is revoked, the defendant will not revert to his pre 2009 behaviour.
Further, the plaintiff submits the fact that the Original Order has been in place for almost eight years does not of itself indicate anything material.
The plaintiff submits that the Original Order was, on its terms, intended to operate for an indefinite period and therefore the effluxion of time itself does not militate in favour of the Original Order being revoked, nor in itself does it indicate any change in the defendant's attitude or behaviour.
The plaintiff also submits that the fact that there is no evidence that the defendant has been refused leave to commence a proceeding since the Original Order in 2009, is not instructive on this application and is just as consistent with the view that the defendant has been effectively constrained by the Original Order to date.
Accordingly, the plaintiff submits that the original order has served its purpose and revoking it would simply allow the defendant to revert to the pre-2009 behaviour.
The plaintiff also submits that at its highest, Dr Walton's report suggests that if the Original Order were revoked, the defendant probably would not now have the energy or motivation to conduct unmeritorious litigation on the scale on which he conducted it prior to that order being made.
The plaintiff also observes that Dr Lester Walton’s report of 22 May 2017 does not indicate that the defendant has developed any insight into his pre-2009 behaviour nor that he has developed a greater capacity or willingness to distinguish between meritorious and unmeritorious litigation.
Further, it is submitted by the plaintiff that there are aspects of the way in which the defendant puts the case on this application that are not relevant or of assistance. In particular the defendant asserts that under the new Act all of the exceptions referred to in the Original Order have been removed. The plaintiff submits that this is a mischaracterisation of the effect of the current legislation and that contrary to the defendant's submissions, s 91(2) of the Vexatious Proceedings Act ensures that the Original Order remains in effect according to its original terms, although the plaintiff observes that the defendant is not subject to any additional restrictions because of the enactment of the relatively new Vexatious Proceedings Act.
The plaintiff also characterises the defendant's submission that ‘the behaviour and motives of the Victorian police, being the main party prosecuting the LV matter against me, is critical to my request to abolish the LV order against myself’, as a submission in the nature of an attempt to re-agitate the factual matrix relevant to the Original Order. The plaintiff argues that this is impermissible.
The plaintiff submits that the material contained at pages 3-6 and 9-11 of the defendant's affidavit dated 13 April 2017, including his assertion that the Original Order might not have been made if he had not contested it, together with his comments in relation to the affidavit material relied upon by the plaintiff in seeking that order, are matters relevant only to the question of whether the Original Order should have been made in the first place which the plaintiff submits is impermissible in this application because it seeks to re-agitate the making of the Original Order.
Finally, the plaintiff submits that reliance by the defendant on the sentencing remarks of Judge Hampel, exhibited to the defendant's undated affidavit of 23 January 2008, nearly two years before the Original Order was made, evince that to the extent that the defendant seeks to rely upon those remarks in relation to the factual foundations for the Original Order, the defendant fails to appreciate the limits to what is irrelevant on this application. The plaintiff also argues that the presentation of those matters in the argument put by the defendant in this application, indicates that the defendant continues to have very limited insight as to the Original Order and why it was made, and further that his inability to distinguish between meritorious and unmeritorious claims remains fundamentally unchanged.
Reasons
Section 69 of the Vexatious Proceedings Act states:
Court or VCAT may vary or revoke litigation restraint order
(1)If it considers it is in the interests of justice to do so, a Court or VCAT may by order—
(a)vary a litigation restraint order in any manner the Court or VCAT considers appropriate; or
(b)revoke a litigation restraint order.
(2)A Court or VCAT may make an order under subsection (1)—
(a)on its own motion; or
(b)on an application under section 65(1) or (2).
Section 69(1)(b) of the Vexatious Proceedings Act confers upon the Court discretionary power to revoke a general litigation order or a declaration made under s 21 of the Supreme Court Act that is deemed by s 91(1) of the Vexatious Proceedings Act to be a general litigation restraint order.
As argued by the plaintiff here, those provisions do not confer upon the Court any power to revisit the original order or the circumstances which justified that order for that purpose.
In my view the meaning of the phrase ‘in the interests of justice’ in s 69(1)(b) of the Vexatious Proceedings Act is intended by Parliament to encompass broad considerations beyond factors only in respect of a party or even the parties to proceedings.
The phrase ‘in the interests of justice’ is inherently broad and multifaceted and should be given a purposeful and not unnecessarily restricted interpretation.
Section 1 of the Vexatious Proceedings Act 2014 refers to the main purpose of the Act as being to reform and consolidate the law relating to vexatious proceedings in a way that balances individual rights of access to the courts with the public interest in an efficient and effective justice system.
Accordingly, in my view considerations which are relevant on an application such as this encompass and extend to public interests in addition to private ones, including considerations in relation to:[13]
(a)the person the subject of the application;
(b)persons against whom a person referred to in the last preceding paragraph might be minded to commence unmeritorious proceedings;
(c)other litigants, whose interests may be adversely affected if scarce judicial and quasi-judicial resources are diverted from meritorious proceedings to unmeritorious proceedings;
(d)judicial and quasi-judicial officers, who may be required to spend significant time and energy conducting oral hearings and drafting reasons for judgment in unmeritorious proceedings; and
(e)the wider community, which has an interest in the efficient and cost-effective operation of this State’s judicial and quasi-judicial tribunals.
[13]Ibid [12].
Further, it is ordinarily necessary for an applicant under s 69(1)(b) of the Vexatious Proceedings Act to establish to the courts satisfaction that for some cogent reason, or reasons, he or she will not continue the conduct which justified the order which they seek to revoke. Section 69(1)(b) also requires the applicant to establish a case sufficient to satisfy the Court that the subject Order should be revoked in the interests of justice.
The focus in this application has been on whether the defendant would, in the circumstances be unlikely to revert to the conduct which justified that Order in 2009 and whether the defendant has thereby established that it is in the interest of justice that the Original Order be revoked, bearing any other relevant considerations in mind. For the reasons which follow I am not so satisfied.
In this matter, the key factors relied upon by the defendant to support his case that he will not, if the Original Order is lifted, revert to the conduct of a vexatious litigant are:
(a) that the Original Order has been in place for almost eight years;
(b) that there is no evidence that the defendant has been refused leave to commence a proceeding since the 2009 Original Order was made; indeed the defendant has initiated a number of applications since then, with the Court’s leave;
(c) the stigma and humiliation which the defendant considers he is exposed to as a result of the Original Order, his status thereunder and because there are those who associate the defendant with other vexatious litigants; and
(d) the opinion of Dr Lester Walton, a specialist psychiatrist.
(e) In the most relevant passage of Dr Walton’s report, Dr Walton expresses the view that:
It would be foolhardy to suggest that there is simply no risk at all of Mr O'Sullivan lapsing back into his old ways and neither am I suggesting that there has been some dramatic transformation of his personality problems which were the main driver of such behaviour in the past. But he is now a man of 77 years and increasingly infirm such that in my impression, he now simply and fundamentally lacks the motivation and the wherewithal to become entangled in court proceedings against him.
Dr Lester Walton's report of 22 May 2017 is notable in that Dr Walton, it appears, has been astute not to put forward any statement that the defendant has, since 2009, undergone a reformation of the relevant personality problems and attributes which Dr Walton recognises were giving rise to the defendant’s vexatious conduct.
Dr Walton expressly states that he is not able to suggest that “... there has been some dramatic transformation of his personality problems which were the main driver of …” the defendant’s behaviour as a vexatious litigant in the past.
Furthermore, Dr Walton expressly states that “it would be foolhardy to suggest that there is simply no risk at all of Mr O’Sullivan lapsing back into his old ways …”.
Dr Walton does not, and it is reasonable to infer cannot, say that there has been a material change in the personal make-up, personal attributes or predispositions of the defendant, nor any positive transformation of the defendant such that there is now a low risk that the defendant might lapse back into the ways of a vexatious litigant if the Original Order was revoked.
In essence Dr Walton is only willing to say that his impression is that the defendant now lacks the motivation or wherewithal to become engaged in Court proceedings against him.
In my view Dr Walton's report does not provide persuasive evidence of a relevant material change in the personality, personal attributes or predispositions of the defendant such as to satisfy me that it is sufficiently unlikely that Mr O’Sullivan will again behave as a vexatious litigant if the Original Order is revoked. Nor does Dr Walton opine positively as to the probability of the defendant being unlikely to instigate inappropriate or vexatious litigation now or in the future.
Dr Walton can say no more than it is his impression that there is a lack of motivation and wherewithal that may prevent the defendant from “engaging in proceedings against him” which, in the defendant’s favour, I understand to mean litigation generally. Further, Dr Walton does not explain what he means in his report by ‘wherewithal‘ and I am unable to give any sufficiently clear meaning to that word in his report.
Furthermore, I agree with the plaintiff's submissions as to the appropriate scope of material and submission under s 69(1)(b) of the Vexatious Proceedings Act, and accept the plaintiff’s argument that the material put forward by the defendant in a number of respects is outside what is relevant on this application for reasons I have earlier identified. Similarly, I also accept that insofar as the defendant has sought to, in effect, review the Original Order, the defendant has in that application exhibited a continuing inability to appreciate the limits of relevance in Court proceedings, and has exhibited a continuing lack of insight in relation to the Original Order and what is a meritorious and what is an unmeritorious claim.
I consider that the defendant's argument that it is in the interests of justice that his status as a vexatious litigant should be revoked because it is causing him to suffer what he considers to be unjustified slights and humiliation based on assertions that he is like another vexatious litigant itself provides no cogent basis for the relief sought.
Neither, do I consider that it is material here that the Original Order was consented to by the defendant and contained conditions pursuant to which he could litigate, if adequately represented.
In the circumstances, I do not consider the assertions that the defendant is ageing, somewhat infirmed, litigation adverse and is limited in his financial capacity to instigate litigation persuasive in favour of the defendant’s application. This is because in my view the defendant has not put forward any cogent and persuasive evidence which satisfies me as to these matters or satisfies me that the defendant will not, if the Original Order is revoked, once again continue the behaviour which caused him to be declared a vexatious litigant, nor for the same reason am I persuaded that it is in the interests of justice, in the circumstances, that the existing Original Order be revoked. The defendant’s case on these aspects was in substance no more than assertion
Further. I do not consider it to be of assistance to the defendant’s application that, save for the litigation which he has pursued with the leave of the Court, he has over an eight year period not sought to instigate litigation in breach of the Original Order. In my view it is likely that this only tends to demonstrate that the Original Order has been effective. This circumstance does not necessarily indicate that the defendant has changed his earlier vexatious ways.
Finally, I observe that the defendant has submitted that there is no litigation which he can envisage instigating. That being so, the Original Order and its continuation will not create any undue restriction on the defendant. Furthermore, I note that even subject to the constraints of the Original Order the defendant has succeeded in obtaining leave to make a number of applications to the Court since 2009 and continues to be in a position to access the courts pursuant to the latitude afforded by the Original Orders.
For the reasons I have earlier outlined, I do not consider that the circumstances of the defendant’s age, stated peace with the Victoria Police, asserted deteriorating health and submitted lack of financial capacity or asserted disinclination to pursue litigation are probative of a material change of relevant circumstances since the Original Order or sufficiently persuasive to satisfy me that were the Original Order to be revoked, it would be unlikely that the defendant would revert to the conduct which justified that Order in 2009.
For the reason that I have outlined, I shall dismiss the defendant’s application for the revocation of the Original Order.
I shall make no order as to costs because I note that the plaintiff in his application has expressly communicated that it does not seek costs.
Accordingly I propose to order that:[14]
[14]The revision of these Reasons could not occur until after 8 September 2017 when the transcript of this application was made available.
1.The defendant’s application pursuant to s 69(1)(b) of the Vexatious Proceedings Act 2014, filed 19 April 2017 be dismissed.
2.There be no order as to costs.
3