Attorney General v Rouvinetis
[2012] NSWSC 328
•12 June 2012
Supreme Court
New South Wales
Medium Neutral Citation: Attorney General v Rouvinetis [2012] NSWSC 328 Hearing dates: 10 June 2011 Decision date: 12 June 2012 Jurisdiction: Common Law Before: Adams J Decision: Orders made pursuant to s 8(7) of the Vexatious Proceedings Act 2008 -
1.The defendant is prohibited from instituting proceedings in any tribunal or court in New South Wales without leave of this Court.
2.All of the proceedings in New South Wales already instituted by the defendant, with the exception of an appeal, if any, from the decision in Rouvinetis v Knoll [2011] NSWSC 1352 are stayed.
Catchwords: VEXATIOUS LITIGANT - no question of principle. Legislation Cited: Vexatious Proceedings Act 2008
Crimes Act 1900
Public Sector Management Act 1988
Freedom of Information Act 1989
Residential Tenancies Act 1987
Housing Act 2001
Fair Trading Act 1987
Trade Practices Act 1974 (Cth)
Residential Tenancies Act 1987
Uniform Civil Procedure Rules 2005
Residential Tenancies Amendment (Social Housing) Act 2005
Criminal Proceeding Act 1986
Consumer, Trader and Tenancy Tribunal Act 2001
Judiciary Act 1903 (Cth)Cases Cited: Attorney General of NSW v Wilson [2010] NSWSC 1008
Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
Rouvinetis v Department of Housing Commission of NSW (Supreme Court of NSW, Dunford J, 17 July 1996, unreported)
Rouvinetis v Department of Housing Commission of New South Wales (Supreme Court of NSW, Barr J, 16 June 1997, unreported)
Rouvinetis v Department of Housing Commission of New South Wales [1998] NSWCA 197
Rouvinetis v Department of Housing Commission of New South Wales [2000] 12497
Rouvinetis v Department of Housing [2001] NSWRT 99
Evangelos Rouvinetis v Director General, Department of Housing [2001] NSWADT 155
Rouvinetis v NSW Land & Housing Corporation [2001] NSWRT 317
Evangelos Rouvinetis v Residential Tribunal & Anor [2002] NSWSC 1007
Rouvinetis v Corporation of Land and Housing [2006] NSWCTTT 710
Rouvinetis v Consumer, Trader and Tenancy Tribunal [2007] NSWSC 391
Rouvinetis v NSW Corporation of Land and Housing [2007] NSWCTTT 401
Rouvinetis v Varady [2009] NSWSC 109
Rouvinetis v Knoll [2009] NSWSC 1212
Grant v Rouvinetis [2001] NSWSC 667
Grant v Rouvinetis [2001] NSWSC 513Category: Principal judgment Parties: Attorney General (Plaintiff)
Evangelos Rouvinetis (Defendant)Representation: S Callan SC (Plaintiff)
Evangelos Rouvinetis (In Person)
File Number(s): 2011/29016
Judgment
Introduction
The Attorney General of New South Wales seeks orders pursuant to s 8 of the Vexatious Proceedings Act 2008 in relation to the defendant, Evangelos Rouvinetis. The orders sought are that all proceedings instituted by the defendant, excluding those proceedings in Evangelos v David Knoll & 22 Ors 15679 of 2008, prior to the date of the order be stayed (vide s 8(7)(a)) and that the defendant be prohibited from instituting new proceedings without the leave of the Court (vide s 8(7)(a)).
The plaintiff has standing under s 8(4)(a) of the Act to bring the application despite being a stranger to the proceedings relied upon as grounding of the issued vexatious proceedings order.
The application has been instigated by the defendant's involvement in more than fifty different proceedings, in the High Court, this Court, the District and Local Courts, the Consumer, Trader and Tenancy Tribunal (formerly the Residential Tribunal) and the Administrative Decisions Tribunal, brief details of which are discussed below. It is submitted on behalf of the plaintiff that, although of these 50 cases, 12 would not qualify themselves as vexatious proceedings within the meaning of s 6 of the Act, they are relevant for the purposes of demonstrating the nature and extent of the plaintiff's litigation history.
The evidence
The plaintiff read the affidavit of Christopher Butler of 28 January 2011. Four volumes of materials containing pleadings, submissions, unreported decisions of various courts and tribunals in New South Wales relating to proceedings in which the defendant was or is involved were exhibited to that affidavit. No objection was taken by the defendant, who was self represented. I am satisfied that all of the material tendered by the plaintiff is admissible.
The defendant called evidence from Michelle Fraser, barrister, and Andrea Howardova, a psychiatry registrar at the Prince of Wales Hospital. The evidence of both witnesses was irrelevant to the determination of the matter. Notwithstanding, it is appropriate to briefly summarise that evidence.
The evidence, which the defendant sought to adduce from Ms Fraser, related to circumstances which led to her accepting the brief in proceedings between the defendant and the Consumer, Trader and Tenancy Tribunal in the District Court. She said that she did so after her clerk inquired as to whether she would take the brief, having received an inquiry from the Registrar of the District Court. Upon receiving the court file she wrote to the defendant by letter dated 23 April 2009 making enquiries of him regarding the proceedings and requesting him to contact her. A copy of that letter was tendered. She said that she had a conference with the defendant, regarding the matter and thereafter provided advice by way of letter dated 28 April 2009. While it was not traversed during Ms Fraser's oral evidence, the letter of 28 April 2009 indicates that the defendant was proceeding in the District Court by way of appeal, claiming damages against the Tribunal in the amount of $133 after it had made an order directing him to pay an equal amount to the Department of Housing. Ms Fraser's advice was, essentially, that it was not worth prosecuting proceedings seeking such an amount, the matter was, at least to her mind, properly decided by the Tribunal and that there was no cause of action as the Tribunal had immunity in respect of its judicial function.
The defendant enquired as to whether she was "appointed" by the District Court. When I questioned him as to the relevance of the question the defendant responded -
"She is part of the conspiracy involving the plaintiff, that is what I want to prove. In this case she comes to say she was a barrister pro bono. We are having perjury that is the form with this witness. I brought her to prove that she was a part of a conspiracy she perjured."
The apparent trigger for the defendant's questioning of Ms Fraser appears to stem from a letter he received from the Assistant Registrar of the District Court dated 9 May 2011, less than a fortnight after Ms Fraser's letter, indicating that unsuccessful attempts had been made to find a barrister who would accept the defendant's brief.
The evidence which the defendant adduced from Ms Howardova centred upon the events surrounding his being taken to the Prince of Wales Hospital by police officers on the afternoon of 7 December 2010. A "request by member of NSW police force for the assessment of an alleged mentally ill or mentally disturbed person at a declared mental health facility" form contained in the Prince of Wales Psychiatry Record, which was produced by Ms Howardova and admitted into evidence with the consent of the defendant, indicates that police had been called to the defendant's Department of Housing residence on 7 December 2010 after reports of a "breach of the peace" and after threats were made "to Housing and Police". Ms Howardova confirmed that the defendant was brought to the hospital by police and that she was contacted by a nurse at approximately 3.20 pm to conduct an assessment on the defendant which she ultimately did. She gave evidence that, having undertaken the assessment, she concluded that the defendant did not have a mental illness although she said that he displayed paranoid personality traits. Although the opinion of Ms Howardova provides perhaps some explanation for the defendant's conduct and attitude, it is of doubtful relevance and I have not taken it into account as either favourable or adverse to him.
In addition to the evidence given by Ms Fraser and Ms Howardova, the defendant relied upon an affidavit sworn by him on 25 February 2011 along with five documents identified as being the defendant's submissions or further submissions dated 28 February, 29 March, 11 and 28 April and 16 May 2011. The defendant informed me that the submissions contained assertions of fact and that he wished for them to be treated as the truth. There being no objection on behalf of the plaintiff I admitted those documents into evidence.
The legislative scheme
Section 8(1)(a) of the Act provides that a vexatious proceedings order in relation to a person may be made where an "authorised court" (such as this Court - see the definition in s 3) is satisfied "the person has frequently instituted or conducted vexatious proceedings in Australia". Section 4 of the Act defines "proceedings" as including:
"(a) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and
(b) any proceedings (including any interlocutory proceedings) taken in connection with or incidental to proceedings pending before a court or tribunal, and
(c) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way."
Section 5 of the Act defines "institute", in relation to proceedings, as including:
"(a) for civil proceedings-the taking of a step or the making of an application that may be necessary before proceedings can be started against or in relation to a party, and
(b) for proceedings before a tribunal-the taking of a step or the making of an application that may be necessary before proceedings can be started before the tribunal, and
(c) for criminal proceedings-the making of a complaint or the obtaining of a warrant for the arrest of an alleged offender, and
(d) for civil or criminal proceedings or proceedings before a tribunal-the taking of a step or the making of an application that may be necessary to start an appeal in relation to the proceedings or to a decision made in the course of the proceedings."
Section 6 of the Act defines "vexatious proceedings", as including:
"(a) proceedings that are an abuse of the process of a court or tribunal, and
(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and
(c) proceedings instituted or pursued without reasonable ground, and
(d) proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose."
Section 8(7) of the Act provides that:
"The Supreme Court may make any one or more of the following vexatious proceedings orders in relation to a person:
(a) an order staying all or part of any proceedings in New South Wales already instituted by the person,
(b) an order prohibiting the person from instituting proceedings in New South Wales,
(c) any other order that the Court considers appropriate in relation to the person."
The test under s 8(1)(a) requires that, before making a vexatious proceedings order, the court must first be satisfied that the person has instituted or conducted vexatious proceedings as defined in s 6 of the Act and then that those proceedings have been instituted or conducted frequently (see: Attorney General of NSW v Wilson [2010] NSWSC 1008 per Davies J at [10]-[11]).
In Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192, Davies J helpfully (if I may respectfully say so) set out the relevant principles as follows -
"I discussed in Attorney General of NSW v Wilson [2010] NSWSC 1008 at [9]-[17] the principles associated with the making of an order under s 8(1)(a) of the Act. Those matters may be summarised as follows:
(a) the test of "frequently" is a less demanding test than was required under s 84 Supreme Court Act 1970;
(b) the term "frequently" is a relative term and must be looked at in the context of the litigation being considered;
(c) the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person;
(d) regard may be had to applications made by the person in proceedings commenced against that person;
(e) regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;
(f) regard may be had to proceedings in any Australian court or tribunal;
(g) regard may be had to the findings and result in the proceedings under consideration.
[8] In these proceedings, reference has been made to the judgment of Perram J in Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398 where his Honour eloquently expresses the principles relating to vexatious litigants at [2]-[12]. Whilst acknowledging that the test his Honour had to consider was the test under s 84 Supreme Court Act and is, as I have noted, a more demanding test than is required under the Vexatious Proceedings Act 2008, much of what his Honour sets out is relevant to the determination in the present case.
[2] A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen's ordinary right. It is, therefore, not lightly to be made.
[3] Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.
[4] Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.
[5] Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant's institution of such proceedings may fairly be said to be both habitual and persistent.
[6] Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding's legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.
[7] Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.
[8] Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant's conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.
[9] Eighthly, each of these notions - the want of reasonable grounds, habitual institution and persistent institution - are to be gauged objectively. But this does not mean that a litigant's own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.
[10] Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals therefrom and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto - so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).
...
[12] Finally, once it is concluded that the Court's power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise."
The defendant's litigation history
In determining whether to make the orders sought by the plaintiff, it is first necessary to determine whether, if any, of the proceedings which the plaintiff points to as being vexatious are such and then to further determine whether they have been frequently instituted or conducted. In so doing, I have reviewed the proceedings pointed to by the plaintiff as demonstrative of the defendant's litigation history. It is necessary to focus on the nature of the defendant's claim in each case, the outcome of individual proceedings and the findings of or views expressed by the presiding judicial officer in determining the proceedings, the conduct of the defendant within the proceedings and the attitude or perceived attitude of the defendant towards his obligations as unsuccessful litigant.
I have set out in some instances, the defendant's pleadings and submissions. For ease of reading, I have corrected some obvious spelling errors.
Proceedings involving the Department of Housing
In May 1996 the NSW Department of Housing commenced proceedings (number 96/10673) in the Residential Tenancies Tribunal for an order terminating the Residential Tenancy Agreement entered into between the defendant and the Department on 29 May 1995 on the basis of the defendant's conduct towards employees of the Department. The matter was finally heard by Member Cochrane on 16 May 1996 and orders were made by the Member on 24 May 1996 terminating the Tenancy Agreement and ordering vacant possession. The plaintiff does not submit that these proceedings are vexatious.
On 30 May 1996 the defendant commenced proceedings (30068 of 1996) seeking judicial review of Member Cochrane's decision of 29 May 1995 on the basis that there "was an error of judgment". On 17 June 1996 by amendment of the summons, the defendant made claims against personnel of the Department alleging; "misconduct", "violation of tenancy agreement and the clause "22" of the Act", "dereliction of duty", "denial to acknowledge document", "violation of restriction orders" and "false pretences" and, "malicious prosecution". The amendments also asserted that the Tribunal's decision "has erred in judgment in facts and in law". The defendant's affidavit in support contained allegations regarding the conduct of employees of the Department who attended his residence in April 1996 and the failure of the Tribunal to inform "him about technicalities".
On 17 July 1996 this Court (Dunford J) heard the defendant's application. The amended summons was dismissed so far as it pertained to allegations against employees of the Department, his Honour concluding that "if [the allegations] are appropriate to be brought at all, [they] are not appropriate matters to be brought in this Division nor are they appropriate matters to be included in a summons seeking to appeal on a question of law from a decision of the Tribunal". Notwithstanding, his Honour upheld the appeal against the determination of the Tribunal on the basis that the defendant had been denied procedural fairness and made orders remitting the matter for rehearing: Rouvinetis v Department of Housing Commission of NSW (Supreme Court of NSW, Dunford J, 17 July 1996, unreported). The plaintiff does not submit that these proceedings are vexatious.
Supreme Court Proceedings - 13455 of 1996
On 14 August 1996, the defendant commencing proceedings (13455 of 1996) seeking an order against the "Chairperson of the Residential Tenancy Tribunal" in respect of orders made against the defendant on 8 May and 17 May 1996 on the grounds "of conducting a hearing negligently", "denying natural justice" and "violating wilfully the law". The defendant filed two affidavits dated 14 and 16 August 1996 respectively in which he alleged violations of "natural justice", "findings of the Supreme Court", and conduct constituting breaches of State and Federal legislation. A letter dated 21 August 1996 addressed to the defendant on behalf of the Principal Registrar of the Court informed the defendant that the listing of the matter on 26 August 1996 had been vacated. However, the Court's file records that the matter proceeded before James J on 26 August 1996, the defendant appearing in person, with no appearance recorded for the Tribunal. The outcome was noted as "no evidence of service from the deft [sic]. No proper affidavit evidence. No relief granted". The file further indicates that the matter was listed before McInerney J on 9 September 1996, which accords with an amended return date on the Summons filed on 14 August 1996 although no result is recorded. The ultimate outcome of the proceedings is unknown, although the plaintiff submits that that I should draw the inference that the Summons was dismissed or discontinued. In my view this is appropriate inference to be drawn.
The plaintiff submits that these proceedings were vexatious because they were "commenced without reasonable ground and constituted an abuse of process". In support of this the plaintiff contends that the proceedings constituted a further challenge to the orders of the Tribunal in proceedings 96/10673 which had been dealt with by Dunford J in the defendant's favour in proceedings 13455 of 1996 and that they were commenced before the Tribunal had reheard proceedings 96/10673 on remittal.
Supreme Court Proceedings - 13508 of 1996
On 19 August 1996 the defendant again filed a Summons (13508 of 1996) in this Court again seeking orders against the Department. The defendant claimed that the Department "is called to answer charges for its personnel R. Holden" on allegations of "false pretences", "corrupt commission", "corrupt inducement for advice", "perjury", "interfering with witness/es", "abettor in misdemeanour" and "indictment for conspiracy". An affidavit in support of the Summons of the defendant dated 19 August 1996 alleges contraventions by the Department or R. Holden of ss 185, 249, 327, 336, 351 and 393 of the Crimes Act 1900.
At a hearing on 2 September 1996, at which the Department was represented and the defendant appeared in person, Hamilton AJ made an order dismissing the proceedings. No reasons for the order were provided by the plaintiff and it was "likely" [that] the proceedings were dismissed by the Court on its own motion, as the summons disclosed no reasonable grounds". The plaintiff submitted that the proceedings are "clearly vexatious" as they were instituted without reasonable grounds with the purpose of harassing or annoying Mr Holden and other staff of the Department.
Supreme Court Proceedings - 11648/1997 Rouvinetis v Department of Housing Commission of New South Wales (Supreme Court of NSW, Barr J, 16 June 1997, unreported)
On 2 June 1997, the defendant commenced proceedings (11648 of 1997) claiming contraventions by the Department "or its personnel named in the affidavits" in respect of ss 101, 249C, 375, 393 and 545B of the Crimes Act 1900. The defendant swore an affidavit dated 2 June 1997 in support of the Summons in which he named four individuals as personnel of the Department as having committed the offences against the Crimes Act as alleged in the Summons. At the conclusion of a short hearing on 16 June 1997 at which the Department was represented and the defendant appeared in person, Barr J, sitting as the applications list judge, dismissed the summons on the basis that the orders contained therein sought the Court to "commence, or make orders facilitating the commencement of, criminal proceedings against the persons named in the affidavit". The defendant was ordered to pay the Department's costs.
The plaintiff submits that the proceedings were vexatious on the basis that they were commenced without reasonable grounds and for the purposes of harassing or annoying officers of the Department. In considering this submission, and as discussed above, I am entitled to have regard to any relevant observations of Barr J and the conduct of the defendant during the proceedings. So far as the defendant's conduct is concerned, there is nothing either in the judgment or the transcript of the proceedings which indicates that the defendant's behaviour during the course of the proceedings was inappropriate. Relevantly, and as noted by Barr J, the proceedings arose from the same circumstances which gave rise to proceedings 13455 of 1996 and which were determined by Dunford J. During the course of the hearing Barr J made the following enquiries with the defendant -
"His Honour: Do the matters raised in your present summons arise out of the circumstances which gave rise to the previous action?
[Defendant]: I mention it because simply maybe a continuation of the dispute, sir. I may be subject of a grudge.
...
His Honour: Why should I make these orders...?
[Defendant]: Is matter of justice, sir. I want conviction and compensation and I am sixth time in the Supreme Court and five times in the [Tribunal]. I am 57 years old, I have intellectual and spiritual matters and I have more to do with my time than disputing with frivolous people and taking your time in the court."
Court of Appeal Proceedings - 40361 of 1997
On 19 June 1997 the defendant filed a Notice of Appeal (proceedings number 40361 of 1997) in respect of the decision of Barr J of 16 June 1997 on the grounds: first, Barr J "erred in law in the findings of fact made therein these not being open to be found on the evidence presented"; and second, in the alternative, that Barr J "was biased and the judgment as a consequence is unsafe and unsound". The defendant sought orders setting aside the judgment and associated costs order and remitting the matter for hearing or, in the alternative, the substitution of the Court of Appeal's own "findings for those of His Honour Justice Barr."
By judgment dated 8 September 1998 (Rouvinetis v Department of Housing Commission of New South Wales [1998] NSWCA 197) the Court of Appeal, comprising Mason P, Sheller JA and Fitzgerald AJA, dismissed the appeal with costs. On the first ground of the appeal the Court found that Barr J had made no findings of fact and on the second, that there was no evidence to support the allegation of bias, the court stating "the allegation is patently without foundation." At the conclusion of the judgment, Fitzgerald AJA with whom (Mason P and Sheller JA agreed) stated:
"[t]he relief claimed by the [defendant] in his summons is legally incomprehensible. He seeks a determination against the respondent that it "or its personnels" have to answer charges against various sections of the Crimes Act. That is not a matter which is justiciable between the appellant and the respondent in a civil proceeding in the Common Law Division."
The Crown correctly submits that the appeal was a vexatious proceeding, having been commenced without reasonable grounds.
I turn to consider the defendant's conduct in the proceeding. Correspondence between the Court and the defendant indicates that the defendant acted inappropriately towards Court staff in respect of the proceedings. In a letter to the defendant dated 8 August 1997 the Registrar of the Court of Appeal wrote to the defendant in response the defendant's letter of 7 August 1997 in which he observed -
"I note that you attended the Registry prior to the appointment and demanded that a registry officer prepare your draft appeal index. Quite correctly the Registry Officer refused to do this.
...
Your attitude at the appointment (and your subsequent attendances at the Registry) make this a difficult task. I did attempt to discuss certain problems which I believed your appeal had but you were in no way receptive. I also attempted to explain what would happen next but again you continually interrupted me. I am not in my own mind sure that your appeal is competent, but in light of your attitude I have decided to allow the appeal to proceed at your own risk.
You have on the 2 occasions I have met you displayed aggressive discourtesy to me and the Court. I also note that you have also been discourteous to Registry staff who have only been trying to do their jobs according to the rules and the procedures of the Court. Please, display appropriate courtesy to the Court and the Registry staff in the future conduct of this case."
In a letter to the Court dated 8 September 1997, the defendant wrote complaining that, when he sought a written acknowledgment that submissions made by him had been filed, the person at the counter "stamped the documents but refused to sign". I set out the defendant's letter in extenso to demonstrate the quite typical style and method of his submissions displayed in one way or another in many proceedings in which he has been engaged. His letter (in upper case) said -
"I INSISTED THAT DOCUMENTS DELIVERED TO COURT ARE NOT LOVE BILLET DOUX AND MUST BE RESPECTED, SIGNED PROPERLY AS DUTY, RULES, FORMALITY AND ETIQUETTE REQUIRE, IN PARTICULAR THOSE TO BE ADDRESSED AND USED BY THE NATIONAL AUTHORITY.
MY INSISTENCE PAID NO DIVIDENDS AND I GOT THE PICTURE.THAT MY INSTRUCTION AND ADVICES INSTEAD OF BEING APPRECIATED RAISED AN UNBEARABLE CONFRONTATIONAL LEVEL.
WISHING TO COMPLETE MY TASK SUCCESSFULLY I ASKED TO SEE THE REGISTRAR STEPHEN JUPP WHO I HAD THE HONOUR TO SEE ONLY TWO DAYS EARLIER UNDER PECULIAR CIRCUMSTANCES.
THE PERSONNEL ENGAGED TO AN ARGUMENT WITH ME INSTEAD OF SIGNING THE DOCUMENTS AND RETORTED ANGRILY THAT THE REGISTRAR WAS NOT AVAILABLE ATTENDING AN INTERVIEW.
DETERMINED I SAID THAT "I AM NOT GOING IF THE DOCUMENTS ARE NOT SIGNED AND YOU WILL HAVE TO CALL THE SHERIFF OR THE POLICE TO REMOVE ME."
THE PERSONNEL IN MENTION TOOK THE DOCUMENTS AND WENT INTO AN OFFICE WITHIN MY VISUAL RANGE AND REMAINED ABOUT TEN MIUNTES OF WHAT I CONSIDERED TO BE THE TIME OF PERUSAL OF THE DOCUMENTS BY SOMEONE IN THAT OFFICE, THEN REAPPEARED WITH ANOTHER FEMALE LOOKING LIKE INDIVIDUAL.
THE NEWLY ARRIVED INDIVIDUAL WHICH I VIEW AS SUPERIOR TO THE DESK CLERK SHOWED A CONFRONTATIONAL INITIATIVE BY ENTERING THE FRAY BY SAYING: "I WILL PUT MY INITIALS ON THE ORIGINAL DOCUMENT AND IF IT EVER GOES TO COURT, I WILL BE ABLE TO RECOGNIZE IT'".
I STARED WITH INCREDULITY AND I TOOK THE IRRATIONALITY OF THAT INDIVIDUAL AS AN AFFRONT AND NEARLY TAKE TO THE EDGE.
"YOU PEOPLE HERE. YOU DEFY LOGIC BY SPEECH AND CONTACT, THE DOCUMENTS ARE NOT INTERESTED AND NO ONE WILL CARE LESS IF YOU RECOGNIZE YOUR INITIALS OR NOT, WHAT IS OF CONCERN THAT WHOEVER DEALS WITH DOCUMENTS MUST BE SURE AND HAVE CLEAR PICTURE AS TO THOSE WHO MAY HAVE BEEN DEALING OR HANDLING THE DOCUMENTS".
THAT IS WHAT I SAID AND UPON THAT THE INDIVIDUAL TURNED AND WENT AWAY WITH THE MIEN OF A DIVA.
I NEARLY HAD APOPLEXY, I HAVE NEVER ALLOWED ANYBODY AND NEVER GIVEN THE RIGHT TO BE TREATED WITH CONTEMPT AND INSOLENCE BUT THAT WAS NOTHING IN COMPARISON OF WHAT I WAS ABOUT TO DISCOVER.
LOOKING AT THE INITIALS OF THAT INDIVIDUAL MY MEMORY PICTORIALLY RECALLED THE INITIALS APPEARING ON LETTER SENT TO ME BY THE REGISTRY OF THE ABOVEMENTIONED COURT, THE 16/7/1997 FOR WHICH I HAD MADE A LOT OF FUSS IN MY ATTEMPT TO LOCATE THE SENDER.
IN THE STEPS TO LOCATE THE SOURCE OF THAT LETTER I HAD QUESTIONED THE RECEPTION DESK CLERK WHO HAD DENIED TO KNOW TO WHOM BELONGED THAT UNREADABLE SCRIBBLE POSING ON THE LETTER AND NOW I WAS DISCOVERING THAT SHE WAS WORKING IN THE SAME OFFICE WITH THE SCRIBBLER AND AS A MATTER OF FACT WAS HER CONTROLLING OFFICER.
I FELT A HELPLESS STATE OF ANGER AND I THOUGHT THAT MAY FOOLS, UNABLE TO SEE BEYOND THEIR NOSES WERE TAKING ME FOR ONE OF THEIR LIKES.
INSTANTANEOUSLY CAME TO MY MEMORY THE INDIVIDUAL OF THE SUPREME COURT REGISTRY ON LEVEL FIVE WHICH THE AUGUST OF 1966 DARED TO CONTRADICT MY OWN SAYING IN FRONT OF MY PERSON.
THEN CAME TO MY MIND THE IMNAGE OF THE CHAIRMAN OF FAIRFAX AND FORMER CHIEF JUSTICE OF THE COURT MENTIONED WHEN UNDER COMMISSIONS QUESTIONING ANGRILY CONTRADICTED A SMILING EX-MINISTER IN THE TUNE OF A LOST OR WEAK MEMORY.
I AM NOT HERE TO LECTURE ON METAPHYSICS (THEOLOGY) OR ETHICS (POLITICS) BUT I SAY THAT MY TRUST TO THIS CROWN HAS NOT BEEN EVAPORATED BECAUSE I NEVER HAD ANY.
THE REASON OF MY PRESENT LETTER IS TO COMPLAIN FOR THE CONTACT OF THE PERSONNELS OF THE REGISTRY ON THE LEVEL SIX AND THEIR DISCIPLINARY PUNISHMENT ALSO THAT I RECEIVED THE 05/09/1997 LETTER WITH THE INSIGNIA OF THE SUPREME COURT REGISTRY BEARING NO REFERENCE WITH DATE OF ISSUE 02/09/1997 WITH NO SIGNATURE OR TITLE OR OFFICE OR NAME OF DESPATCHING PERSONNEL.
OWING PAST FRICTIONS ON SIMILAR MATTERS THE 26/08/1996 AND 29/07/1997 WHERE I TRIED TO TRACE IRRESPONSIBLE CORRESPONDENCE I CANNOT ACCEPT SUCH A LETTER AND I RETURN IT TO THE REGISTRY OF THAT COURTAS ERRONEOUSD AND UNACCEPTED, BECAUSE WHENEVER I HAVE TRIED CORRECT WRONGS I HAVE ENTERED UNJUSTIFIED ARGUMENTS AND INSTEAD OF BEING COMMENDED FOR MY LABOUR I HAVE ENDURED ANIMOSITY AND VICTIMIZATON AND I HAVE BEEN ACCUSED OLF INCIVILITY??????
THIS INFORM THE CROWN AND ALL ITS COURTS AND SERVICES THAT I WILL ACCEPT NOT DOCUMENT OR LETTER WHICH IS NOT PROPERLY UNDERSIGNED AND HAS DOUBT OF ITS SENDER OR BLURRED TRACE OF ITS ORIGIN ...
i HAVE ENTERED A BUMPY GROUND OF DISCORD WITH THE CROWN QHICH WILL GO LONG WAY AND I MAY NOT DICTATE DESTINATION OR COURSE BUT THE IMPERATIVE OF MY STEPS, I MOST CERTAINLY WILL AND IF THE CLERK RECEIVING THAT LETTER DO NOT ACKNOWLEDGE IT PROPERLY, I AM TO STAY IN THE REGISTRY OF THIS COURT UNTIL FORCEFULLY REMOVED OR ARRESTED BY THE SHERIFF OR THE POLICE.
THE ORIGINAL OF THE LETTER IS TO BE SUBMITTED TO THE COMMISSION OF HUMAN RIGHTS IN GENEVA AND HERE I TAKE LIBERTY AND OPPORTUNITY IN REMINDING THE COMMISSION THAT THIS CROWN IS NOT TO BE CONFUSED AUTHORITATIVELY WITH THE CROWNS OF EUROPE OF THE LIKES OF BELGIUM OR SWEDEN, IT WILL NOT ACCEPT BILL (LEGISLATION OR CURRENCY) WITHOUT ITS SEAL.
A SOVEREIGN IN NEAR FROM OF THEOCRACY I CAN NOW IN THIS LINES UNFOLD OBSERVATIONS OR STUDIES REQUIRING A LECTURE BUT ...
"ROME SUPRA HOMINEM ET FACTIONS ESTI" MAY SERVE AS A POOR PARALLEL, WHICH IN LANDS OF SUBJECT CAN BE EMPHASISED.
"AN AUTHORITY WHICH IS ABOVE THE LAW A SOVEREIGN WHICH CAN RULE WITH LAWLESSNESS".
THOMAS PAINE (THE RIGHTS OF MAN)
NEEDS NO MORE, THOUGH THEY MAKE THE TASK EASIER, BLACK TABLES OR ROUND KNIGHTS FOR TO DO ITS JOB AND I QUOTE WILSON HIGH OURT JUDGE AND HUMAN RIGHTS?!?!?!?! FOR THIS CROWN OF 01/08/1997
"IF THE ARROGANCE AND IRRESPONSIBILITY OF PEOPLE AND BODOES ACTING UNDER CROWN'S COVER IS NOT ARRESTED, AS THE COMMISSION INTO DEATHS IN CUSTODY REPORTED THE NATION (AUSTRALIA) WILL SUFFER A LOT OF GRIEF AND INJUSTICE".
FOR THE REGISTRY CLERKS OF THAT COURT FOR THEIR CONTACT AND TREATMENTS OF DOCUMENTS MAYBE A VIOLKATION OF THE CROWN PUBLIC SECTOR MANAGEMENT ACT WHICH I AM TO LOOK AT AND I WILL LET YOU KNOW ON A SEPARATE COMMUNIQUE.
FOR TO REINFORCE THE JUSTIFICATION FOR MY INSISTENCE OF PROPER SIGNING OF DOCUMENTS I INFORM YOU, THAT FOR DOCUMENTS NOT OBSERVED OR TREATED PROPERLY PERHAPS, IT NEVER BECAME KNOWN, (AT LEAST TO THE PUBLIC WHO IS THE MAIN CONCERNED) THE CRIMINAL ELEMENT OR SINISTER CAHDOWS INVOLVED TO THE ARRESTS AND CUSOTODY TRANSFERS OF YELDAM.
YOU MAY ASK WERE ROSTERS AND DUTY LISTS OR WERE MOVEMENT OF CROWN PERSONNELS MONITORED OR CHECKED, HOW IT COMES THAT A DETAINEE IS DRAGGED FROM CELL TO CELL AND THE GUIDE OF HIS TOURS CANNOT BE IDENTIFIED.
THIS INEXCUSABLE NEGLIGENCE I TAKE TO MY VIEW TO BE A CONTEMPT OF THE MAGNITUDE OF CONSPIRACY AT THE COST OF THE PUBLIC WHICH WAS POLSSIBLE TO HATCH AND ORCHESTRATE UNDER AUSPICES OF IRRESPONSIBILITY OF AUTHORITY MENTIONED BY WILSON AND OWING THE RANK OF OFFICE OF THE FELLOW INVOLVED TANTAMOUNT TO NATIONAL TREASON."
High Court Proceedings - S49 of 1999
On 20 April 1999 the defendant filed an application in the Sydney Registry of the High Court seeking special leave to appeal against the judgment of the Court of Appeal of 8 September 1998. The order sought related only to the "order of paying costs". The grounds of appeal were as follows -
"THE SUBMISSIONS TO THE COURT OF APPEAL WERE INAPPROPRIATE AND THE SUBSEQUENT DISMISSAL STANDS AS AN ERROR IN LAW AND FACTS.
(1) JUSTICE ACT 1902 CLAUSE 60(2) ... THE JUDGE TO WHOM BEFORE COMES INFORMATION OR COMPLAIN WOULD CONSIDER TO REFER IT TO MEDIATION UNDER COMMUNITY JUSTICE CENTRE ACT OF 1983
(2) CLAUSE 80(a) CONSIDERATION TO THE MEANS OF PAYMENT
(3) CLAUSE 81(B) THE PROCEEDINGS INITIATED BY MY WERE WITH GOOD REASON IN FAITH TO JUDICIARY AND WITH GOOD MANNER, ACTION WHICH WAS COMPELLED BY SELF PROTECTION AS I WAS ENDURING A PROLONGED AND ACRIMONIOUS DISPUTE WITH POWERFUL AND MALPRACTICING DEPARTMENTAL PERSONNELS.
IN FACTS THE ERRORS STAND THAT MATERIAL EVIDENCE WHICH PAINFULLY COMPILED AND PRESENTED WAS NEVER VIEWED
ALSO THAT MY SUBMISSIONS TO THE APPEAL W3ERE INEFFICIENT OWING TO MY IGNORANCE OF LEGAL TECHNICALITIES AND THOUGH IT CAME TO THE JUDGE NOTICE IT WAS NOT TAKEN TO CONSIDFERATON OR TO ATTENTION."
The defendant also filed an application for an extension of time for bringing his application for special leave and an "Applicant's Summary" in which he articulated the reasons for his application -
"I can not think of any questions raised by my appeal against the Supreme Court Costs Order, though it seems to be incomprehensible to be asked costs when the responded despite the panoply of unaccountability possess a full legal representation by the state, besides I want to stress as a good subject I would have never entered in dispute with the representatives no matter what injustice if it was not for my own safety."
The defendant also made the following remarks in the summary in respect of the costs order made by the Court of Appeal:
"Here I am compelled to repeat that I am unable to pay as I am penniless but I assure you with no malice, under sense of principals even I had monies I would have never paid costs to well defendant departmental personnel who under the Constitution I was brought up and educated would have never escaped the criminal charges."
The High Court file records that a submitting appearance was filed on 18 October 1999, although a copy of this document was not contained with the plaintiff's bundle, and a "draft index" was filed on 3 November 1999. The file records that the matter was "deemed abandoned" on 15 December 1999. An affidavit of Michael Callen sworn 18 October 2000 filed in the matter of Rouvinetis v Department of Housing Commission of New South Wales proceedings number 12497 of 2000, which was included in the plaintiff's bundle, indicates on 18 November 1999 the defendant requested that the proceedings be discontinued. The Crown submits that the proceeding was vexatious as it was commenced without reasonable grounds.
Supreme Court Proceedings - 13522 of 1997 and 13523 of 1997
On 22 December 1997 the defendant commenced proceedings (1352 of 1997) in this Court against the "Minister of Officer of Ministry of Urban Affairs and Planning" and the "Minister for Ministry for Housing". The defendant claimed that the "Minister or the Ministry has to answer charges in accordance" with offences against ss 14, 15, 347 and 351 of the Crimes Act and s 43 of the Public Sector Management Act 1988 (now repealed) (PSM Act). The defendant filed an affidavit in support of the summons in which the he alleged that the "Minister or Ministry" had committed acts "tantamount to treason" and against the "Government of the Sovereign" as well as breaches of duties said to be owed under the PSM Act.
On the same day the defendant filed a Summons (13523 of 1997) alleging that the "Department of Housing Commission of N.S.W or its personnels have to answer" charges against ss 14, 154, 160, 347 and 351 of the Crimes Act. In an affidavit filed in support the defendant repeated the allegations in the Summons, which he identified as including "fraudulent abstraction of electricity", "embezzlement by persons in the public service" and, "abettors and misdemeanour". The Department filed a Notice of Appearance in these proceedings.
Both matters were listed before Bruce J on 16 February 1998, his Honour directing the defendant to file pleadings in accordance with the Rules within 28 days and directing the defendants to the proceedings to write to the defendant and inform him of the orders made. The transcript records that the matter was determined in the absence of the defendant, the defendants to the proceedings being represented, and that he approached the Court at approximately 1 pm and was informed by Bruce J that he was not in Court at the time the matter was reached. The defendant said that he was present and was informed by Bruce J of the orders which had been made. In so far as the conduct of the defendant is concerned on that occasion, the transcript indicates that the defendant was, for the most part, polite and courteous to his Honour. The Court record indicates that the matters were not listed again until 17 March 2000 before Kirby J although the file, so far as it has been provided by the plaintiff, is devoid of any record of those proceedings. A letter from the defendant dated 9 December 1999 and addressed to the Court indicates that the defendant was advised by the Court by way of letter dated 30 November 1999 that both sets of proceedings were to be dismissed for want of prosecution.
The plaintiff submits that the proceedings were vexatious as they were commenced without reasonable grounds and commenced and conducted in a way so as to harass and annoy the Department.
Residential Tenancies proceedings - 98/25379
On 11 August 1998 the Department filed an application (98/25379) in the Tribunal seeking an order against the defendant that he "stop breaking a Tenancy agreement". The application states the reasons for the order as being that the defendant "has been in a (sic) a beach of the Tenancy Agreement" and that there "has been a long history of this tenant behaving irresponsibly." The matter was listed for hearing on 27 August 1998 and subsequently adjourned on two separate occasions. The plaintiff did not adduce any evidence as to the reasons for the adjournments. The matter was heard on 16 October 1998, the Tribunal dismissing the application on the basis that the material placed before it did not support a finding necessary to make the order sought.
The plaintiff does not submit that the proceeding itself was vexatious but rather that the conduct of the defendant during the proceeding constituted vexatious conduct, namely that the issuing of summonses to appear to five officers of the Department by the Tribunal at the request of the defendant was for the purpose of harassing or annoying those departmental officers. The officers summonsed were J. Pratter, M. Modder, H. Domaradzka, G. Stringer and A. Esteban. In a letter to the Department dated 2 October 1998 addressed to the Department which enclosed the summonses, the defendant noted:
"Also my additional request for those personnnels up on appearance of the hearing the 16/10/1998 in the premises of the address 20/26 O,Connell str Sydney to produce duty lists and Job specifications."
In notices signed by the defendant and addressed to individual officers and accompanying the summonses he requested each officer to produce the "duty list and job specifications" to "facilitate questioning", "to enable to establish (sic) breaches or malpractice which may initiate further action against your person" and to "polarize accountability".
Supreme Court proceedings 20212 of 1999
On 19 April 1999 the defendant filed a statement of claim (20212 of 1999) in this Court naming the department as the defendant, claiming "compensation of $25,000 for the covering of costs and injury" and damages. The statement of claim alleged that the defendant had been "subjected by personnels of the [Department] to malicious prosecution", "intent to injury", "conspiracy with interfering with selecting witnesses and ignoring ones supporting the plaintiff", "actions taken against the [defendant] in a bad manner and faith..." and "malicious slander". In a document entitled "Extension of Pleading" the defendant disclosed the facts and circumstances which were relied upon in respect of each allegation. In so far as the allegation of malicious prosecution is concerned, it appears that it relates to the Department's application to terminate the defendant's tenancy in Tribunal (proceedings 98/25379). In support of the allegations "intent to injury" and "malicious slander", the defendant alleges that included in the Department's file in respect of him is a document which "states that I have been charged for stabbing staff at Waterloo" despite him never having been charged with such an offence. The plaintiff tendered a copy of that document before me. It provides (inter alia) "[h]e [the defendant] has been charged with stabbing staff at Waterloo office has unsuccessfully attempted to instigate Supreme Court action." He relies upon a document contained within the same file in which, so he contends, it is admitted that "tenants stood to my support and witnesses were selected and incited though they were not living in proximity to my unit" in respect of an allegation that he has been the subject to discrimination. A copy of that document was tendered by the plaintiff before me. It provides: "[I]t seems however that we do not have evidence because the two people who complained do not want to fill in witness reports. The others, supported [the defendant]. It seems to be [a] personal thing." He contends that the Department "acted for three years unjustly against my person", a reference to the actions brought by the Department to terminate his tenancy agreement in the Tribunal, in support of his allegation of "action of bad manner and faith".
The defendant filed lengthy submissions. Whilst they provide an account of his contact with persons, whom he contends were representatives of the Department, and the proceedings between him and the Department in the Tribunal and this Court they are confused and to a degree incomprehensible, and include allegations of improper conduct and self-aggrandising statements. An example of the latter is the following -
"I am sick and tired I can argue and alienate people they do not come back but I am coming to meet and those people of the likes of me trying to establish rationality in this world humanity has seen plenty and has got a gut full of them to the extent that whenever they reappear they will be crucified."
Between October 1999 and March 2000 the Registry of this Court and solicitors representing the Department wrote to the defendant advising him of deficiencies of his pleadings. On 3 December 1999 the plaintiff filed a notice of motion in this Court seeking (inter alia) the defendant's statement of claim be dismissed or, in the alternative that the proceedings stayed until the plaintiff satisfied the "outstanding" costs orders made in proceedings 90268 of 1999 and 90269 of 1999. The motion was heard by Master Malpass on 29 February 2000 and on 9 March 2000 the Master gave judgment in favour of the plaintiff dismissing the (present) defendant's proceedings and directing him to pay the costs of the proceedings and the motion. In his judgment Master Malpass observed -
"[5] The proceedings have been the subject of Differential Case Management. The need for amendment has been brought to the attention of the plaintiff. The plaintiff has been given leave to amend the process. He has not taken advantage of that opportunity. Indeed, he takes the approach that he does not intend to amend it.
[6] The proceedings follow on other proceedings involving the parties. The plaintiff manifests very strong feelings towards the defendant and see these proceedings as inter alia a vehicle to rectify what he sees a past injustice...
[9] In his submissions, the application was vigorously opposed by the plaintiff. His presentation was both volatile and offensive.
[10] I carefully listened to those submissions. Perhaps because he may have regarded his task as hopeless, he did not address the real issues thrown up by this application. Rather, he used the occasion as a forum to vent his views of the defendant."
The Master concluded -
"[15] As things presently stand, the plaintiff has brought a clearly defective process which he does not intend to amend. Accordingly, the proceedings are doomed to failure. In my view, there is an abuse of process, which would itself justify a dismissal of proceedings. Be that as it may, there are even more serious problems.
[16] The process fails to disclose any reasonable cause of action. The process identifies five areas as "Facts Pleaded"...At best this material can be regarded as no more than either allegations pertaining to causes of action not known to the law or allegations pertaining to causes of action which have no relevant to the circumstances of this case."
The plaintiff submits that the proceedings were vexatious as they were commenced without reasonable grounds and commenced and conducted so as to harass and annoy the Department. I accept this submission.
Local Court proceedings - 15350/99/198
On 24 June 1999 the defendant commenced a private criminal prosecution in the Local Court at Waverly naming Mr Michael Modder as the defendant. The summons and information issued alleged that in November 1997 Mr Modder, being an employee of the Department, issued contrary to s 337 of the Crimes Act, a false instrument, namely a briefing note, which contained a statement that the defendant had been charged by police with stabbing an officer of the Department of Housing. It appears that the briefing note was the same document upon which the defendant relied in his claim against the Department in proceeding 20212 of 1999 in this Court. By letter dated 3 September 1999 to the Clerk of the Local Court at Waverly the Director of Public Prosecutions declined to take over the prosecution.
The matter was heard by Garbett LCM in the Local Court at Waverly on 1 November 1999. The defendant appeared in person and Mr Fordham appeared for Mr Mooder. After some discussion between the defendant and the Magistrate, the defendant gave evidence that he located the briefing note in the Department's file in respect of him. He sought to tender the document, however Mr Fordham objected on the basis that its provenance had not been proved. While the objection was not formally upheld the defendant was excused after an exchange between him and Garbett LCM, part of which I have extracted as it is relevant to the question of the conduct of the defendant during the course of the proceeding -
"[Magistrate]. Sir have you got any further evidence of proof relating to
[Defendant]. You go to be joking.
Q. Have you got anything? If you haven't well --
A. Well we going to another court, we go higher up.
Q. I'm not going to spend all day on it?
A. Yes we go higher up then, we go to District Court.
Q. Okay. Do you have anything further you want to say?
A. No I have said what I have to say."
The defendant having concluded his evidence, Mr Fordham made a no prima facie case submission, which was upheld, and the matter was dismissed with costs awarded against the defendant.
The plaintiff submits that this proceeding was vexatious, having been commenced without reasonable grounds and commenced and conducted so as to annoy or harass Mr Modders and the Department.
District Court proceeding - DC 99/12/1420
On 15 November 1999 the defendant filed a Notice of Appeal to District Court commencing proceeding 99/12/1420 (appeal no. 67/99) against the costs order made against him in the Waverly Local Court on 1 November 1999. The appeal was heard and upheld by Payne DCJ on 22 February 2000, the costs order being quashed.
The plaintiff does not contend that these proceedings were vexatious.
Residential Tribunal proceeding - RT 00/23881
The plaintiff tendered a decision of the Residential Tribunal in Rouvinetis v Department of Housing [2001] NSWRT 99 (8 May 2001). It did not contend that the proceeding was vexatious. While the decision itself is relevant, the reasons do not criticise the defendant's conduct of the case in a relevant sense.
NSW Administrative Decisions Tribunal - ADT 13010/2000
On 16 August 2000 the defendant lodged a Freedom of Information Application with the Department pursuant to the Freedom of Information Act 1989 seeking production of materials contained in his "tenancy file" maintained by the Department. By determinations on 18 November 2000 and 27 June 2001 the Department released documents, either in whole or in part, pursuant to the defendant's request, and claimed exemptions in relation to certain other documents. The details of the application and exemptions are not presently relevant, suffice to say that the defendant was not satisfied with the production and, on 22 January 2001, after an exchange of correspondence between him and the Department, he filed an application for review of decision with the Administrative Decisions Tribunal (ADT).
The defendant's application progressed through the ADT and was heard by his Honour Judge O'Connor, the President of the ADT, on 2 July 2001. After the release on 27 June 2001 the number of documents disputed was reduced to 105. The applicant appeared in person and Mr Fordham appeared for the Department. On 3 October 2001 his Honour published his reasons (Evangelos Rouvinetis v Director General, Department of Housing [2001] NSWADT 155), which "varied" the decision of the Department and granted access to part or whole of some 11 documents over which the Department had claimed an exemption.
Whilst the plaintiff does not contend that the proceeding in the ADT was vexatious, it does point to the observations made by Judge O'Connor in respect of the conduct of the defendant during the course of the proceedings -
"[25] I note that in the lengthy written submissions filed by the applicant, and in his oral submissions at planning meetings and the hearing, much of which were irrelevant and expressed with great anger and aggression, he frequently made the following points:
(i) that as the file to which he sought access was about him he was entitled to see everything on it, and
(ii) that the 'personal affairs' exemption was not relevant as he had not had any personal affairs with anyone.
[26] These are misunderstandings of the relevant law."
Supreme Court proceeding - 12497 of 2000
On 22 September 2000 the defendant commenced proceeding (12497 of 2000) in this Court claiming that the Department and or "its personnnels M. Moodder and J. Pratter" have to "answer global charges". The summons alleged: M. Modder had committed perjury contrary to the "Criminal Proceedings Act 1986...section 78"; "conspiracy committed by personal J. Pratter, M.Modder and a third party...name Beverly Grant..."; and "malicious prosecution with injury to repute by [J. Pratter and M. Modder] implicating B Grant." He filed an undated affidavit by him with the summons. The affidavit indicates that the allegation of perjury arises from statements made by Mr Pratter during examination by the defendant before the Tribunal (proceedings RT 00/23881). In particular, it is alleged that his response to the question put to him by the defendant as to why the card giving him, the defendant, access to the car park of the residential building he resided at had been cancelled, "because you did not have a car" was "a lie...provide by the file note of the Department...found in [the defendants] tenancy records". The allegation concerning malicious prosecution appears for, the most part, to relate to the issue of the access card. The balance of the affidavit is incomprehensible.
A copy of a "complaint and summons" tendered by the plaintiff indicates that an application for, what was then an apprehended violence order was made by Ms Beverly Grant, who is named in the summons and the affidavit filed by the defendant, in respect of the defendant. The grounds for complaint disclose that the defendant had been "harassing and intimidating" Ms Grant and that (inter alia) her car had been vandalised "whilst locked in a secure car park to which only tenants have access." The damage to Ms Grant's car led the Department to conduct an audit of access cards to the building car park and the defendant being informed that his access card would be cancelled if he did not provide the Department with the details of his cards. A letter from the defendant to department dated 4 May 1998 indicates that his access cards were indeed cancelled. It appears that the complaints contained in the summons stem from these events.
It appears that the matter came before Hidden J on 23 and 24 October 2000. On 24 October 2000 the Department was granted leave to file in court a notice of motion seeking the proceeding to be dismissed along with an affidavit in support. The matter was dismissed and the defendant order to pay the Departments costs. In dismissing the proceeding his Honour made the following observations:
"Put shortly, the summons asks me to launch criminal proceedings against two officers of the Department and a lady who apparently lives in the same block of units as the plaintiff.
...
This is by no means the first time the plaintiff has initiated proceedings of one kind or another against the Department and/or its officers...It is sufficient to say that on several prior occasions the plaintiff has filed summonses in the court seeking relief of fairly much the same kind as that which he now seeks.
...
As I have already said, the relief the plaintiff seeks is not relief which this Court can grant. The initiating of criminal proceedings is not a matter for this Court. If he wishes to pursue criminal proceedings then he must take the appropriate course to do so. The summons seeks relief which this Court has no power to grant. For that reason it is dismissed."
The plaintiff submits that this proceeding was vexatious as it was commenced without reasonable ground and to annoy or harass the Department and continued an abuse of process.
Residential Tribunal proceeding - RT 21672/2001
The plaintiff tendered the reasons for decision of Member Balding in Rouvinetis v NSW Land & Housing Corporation [2001] NSWRT 317 (3 December 2001). No other material was tendered by the plaintiff in respect of the proceeding. It submitted that the "having regard to the nature of the allegations, and the evidentiary findings and ultimate conclusions of Member Balding, this was a vexatious proceeding commenced without reasonable grounds and to annoy or harass the Department." They do not point to any particular part of the judgment in so submitting.
The summary of this proceeding is drawn from the reasons of Member Balding.
On 22 May 2001 the defendant filed an application in the Tribunal seeking orders that "agents personnel abide by the Tribunal's decision of 16-10-200 - 00/23881", "personnel do not persistently violate the tenancy agreement (Clause 8.5), that such persons contact the defendant by "registered mail" and not "again trespass and come banging on the door of my unit." Shortly put, the grounds upon which the application were made related to attempts by persons, alleged to be "personnel of the agent", to contact the defendant by attending upon his unit.
The reasons of Member Balding explain, to my mind, that the proceedings were indeed unreasonably brought by the defendant without a proper basis. The evidence he relied on, so far from supporting his case, demonstrated that the Department had not been in breach of its obligations under the lease; quite the contrary.
Residential Tribunal proceeding RT 01/61752
On 11 December 2001 the Department lodged an application (RT01/61752) seeking orders, in substance, for the payment of arrears of rent of $716. On 30 January 2002 the Tribunal made orders (inter alia) requiring the defendant to pay the Department the amount of $117.60 "for subsidised rent owed under the terms of the residential tenancy agreement" and to pay rent for the future in accordance with the terms of the tenancy agreement.
The plaintiff submits that during the course of the proceeding the defendant applied to have summonses to attend issued by the Tribunal to two Departmental officers. The defendant stated that the reasons for seeking to have the summonses issued were -
"Both witnesses must appear for questioning hearing duty lists and job specifications of the office they were holding for actions committed to exhibits of the respondents submission and for which they will be questions.
Duty lists and job specifications are imperative to be produced not only for to indicate responsibility or to polarize questioning but to establish liability and grounds of it which may lay basis of compensation claims for which the questioning shall focus."
In a discursive follow-up letter the defendant claimed that the witnesses were required -
"to establish liability on grounds which may support future actions to other hearings for compensation of injury and damages inflicted as already has charged criminally other agents of the defendant."
Amongst his complaints was that one of the witnesses had "without ringing the bell, comes three floors up to place a card visit in my room without using my letter box". Other allegations of trespass are made because a letter as to back rent was stuck on his door instead of being placed in his letter box. He claimed that these actions were -
"[a] serious violation of my safety, security and privacy as the agent never made me aware of that invasion by coming unannounced and unexpected forced me to issue by a letter of the same day a complaint against the agent in the department".
In my view it is clear that the purpose of the summonses was to attempt to press baseless claims as part of the defendant's campaign against the Department and its employees.
Residential Tribunal proceeding - RT02/02987
On 1 February 2002 the plaintiff lodged an application for a rehearing with the Tribunal in respect of the orders made by it in proceeding RT01/61752. It appears the defendant sought the rehearing on the basis that not all the documents submitted by him in the proceeding were considered by the member and that the member erred in hearing the matter outside of the "30 days as prescribed by the Act." The defendant also complained that the Department did not provide him with copies of evidence at the hearing of the matter.
On 4 February 2002 the application was refused "as the delegate of the Chairperson was not satisfied that the applicant may have suffered substantial injustice." The written reasons of the delegate state "[b]oth parties were present at the hearing and had an opportunity to put their evidence to the Tribunal. It appears the member considered the evidence and made a determination based on findings relying on that evidence."
This proceeding was made without reasonable grounds or was otherwise vexatious.
Residential Tribunal proceeding - RT 02/03538
On 7 February 2002 the defendant lodged another application (RT01/61752) for rehearing in respect of the orders made by it in the proceeding. Consistently with the complaints raised in the application lodged on 1 February 2002, the defendant contended that the presiding member failed to have regard to the evidence that the defendant relied upon, he "went to accounts beyond 30 days specified by the Rules(3)", and he failed to provide the defendant with access to the documents upon which the Department relied upon.
On 8 February 2002 the defendant's application for rehearing was dismissed. The written reasons of the Tribunal state -
"I cannot reach any conclusion different from the previous determination of 4/2/02 of the Section 63 application.
The applicant had his submissions and evidence considered by the Tribunal. It appears that all matters raised by him at the hearing were considered.
The Member's decision was made in the light of the evidence before him."
The plaintiff submits that the application was vexatious as an abuse of process, given the dismissal of the previous rehearing application only days before, and was commenced without reasonable grounds. I agree.
Supreme Court proceeding - 30011/02
On 14 February 2002 the defendant flied a summons (30011 of 2002) in this Court seeking that the proceeding in RT01/61752 to be reheard and "if possible by a member of this Court as the plaintiffs [presumably a reference to the defendant] suspicious that the defendants are engaged to corruption and collusion." The summons pleaded that the orders of the Tribunal were "unsound" and a "violating of the rules under section 63 of the Residential Tribunal Act." The defendant also filed an affidavit sworn by him and in support of the summons on the same date. The affidavit is, for the most part, incomprehensible. Suffice to say that it contains a "chronology" relating to the payment of the defendant's rent and repeats the allegations contained in the summons together with the following -
"Most disturbing and upsetting is that the hearing of the case 01/61725 of 30/01/2002 tells me that my rent credit of over $91.00 has disappeared without reason without explanation and without recorded action and that is why I raise that case in the court and I add by saying "no one can afford thin skin under the defunct constitution and if my suspicion are correct the agents of the applicant apart of their shoddy actions and contracts, for which I have submitted with dignity and courage two "2" different deposition to the I.C.A.C those agents under the unaccountability of the Crown they may not only have got away with murder rape and theft, against the needy and vulnerable members of the constituency are to serve but their accounts section may have got to misappropriation of funds amounting to an embezzlement of millions, perhaps, against the trusty and needy members of the constituency.
And I say to the Court if I found my suspicions founded as I am a man of calibre and intellect there will be no peace on earth for these people."
The Department filed a notice of appearance on 14 March 2002 and the Tribunal filed a submitting appearance on 27 May 2002. An affidavit of Michael Callen was filed by the Department on 14 May 2002 as to the history of the proceedings in the Tribunal and the procedure of the Department in relation to rental increases and claims for rental subsidies. On 21 May 2002 the defendant filed an affidavit in response to Mr Callen's affidavit. That affidavit contains a number of relevant dates and references to documents together with statements such as -
"As for the falsification of dates and utter disregard to communication and punctuality is chicken feed for this people who they have highjacked the public machinery and hold the colonial state at ransom by the unaccountability of a sovereign who is nowhere to be found and are liable to lead it, instead of nationhood to doomhood and the courts and the tribunals have to understand that we are bound to common garment of destiny and no decent state can exist without accountability and equality in front of the law and we can not frustrate processes or victimize rouvinetises for to protect domarazakases [Departmental employee] State is and means more than that"
[There follows a reference to the finding of the Tribunal that he was in arrears of rent of $117.64, though he claimed never to have stopped paying his rent and, despite different claims made by the Department - ]
"[let] me unravel the wizardry of the residential tribunal which I do have charged criminally in this court which has overturned past rulings and has convinced me that the residential tribunal and its members have been successfully transposed without Alice in the Wonderland by stupidity or corruption and see what they eat but want to eat what they see."
The matter came before Foster AJ for hearing on 24 October 2002. The defendant appeared in person while Mr Jungwirth of counsel represented the Department. At the hearing before Foster AJ, the Department was granted leave to file a further affidavit of Mr Callen. On 28 October 2002 his Honour gave judgment dismissing the defendant's summons with no order as to costs (Evangelos Rouvinetis v Residential Tribunal & Anor [2002] NSWSC 1007). His Honour made a number of observations regarding the nature of the defendant's application -
"[3] A lot of that material was couched in emotional and somewhat colourful language. It was clear that [the defendant] was indeed aggrieved by the decision of the Residential Tribunal against which he was seeking to appeal and also by what he conceived to be sinister and conspiratorial conduct on the part of officers of the [Department], who had the responsibility of administering his subsidised rental payments in respect of the residence occupied by him as tenant from the second defendant. It is a matter for regret that he has these suspicions. I trust that when he reflects upon the matter further, he will come to realise that they are misconceived.
[4] I felt that Mr Rouvinetis was not entirely clear as to the nature of the proceedings he had brought. From some of the material in his affidavits and from statements he made in Court, I gained the impression that he thought he was bringing some sort of criminal proceedings, related to the making of the Tribunal of the order in respect of which he was complaining."
In dismissing the defendant's application his Honour stated -
"[14] ...the only concern of this Court is whether a relevant error of law has been demonstrated. There has been no such demonstration. I should add, in this regard, that [the defendant] claimed breached of what he described as r63. I have been unable to determine what was meant by this assertion, nor was [the defendant] able to explain it to me.
[15] As to the assertion of denial of natural justice. I am not able to detect any substance in this claim. It is clear that specific orders were made by the Tribunal for the furnishing of the material to which I have made reference. This was furnished to the Tribunal. [The defendant] also handed to the Tribunal documents upon which he relied...I can see nothing which would indicate that he did not receive a fair and impartial hearing."
I accept the plaintiff's submission that the proceeding was commenced without reasonable grounds. Moreover, as the transcript demonstrated, the defendant was unable or unwilling to focus on the nature of the jurisdiction he had invoked, despite the assistance attempted by the judge.
Consumer, Trader and Tenancy Tribunal proceeding - CTTT 02/48230
On 19 November 2002 the defendant lodged an application (02/48230) with the Tribunal for the Department to "stop breaching the tenancy agreement" and that it "fix the gas stove." The application came on for hearing on 6 December 2002 before Member Moore and was dismissed. In dismissing the application, Mr Moore found that the contractors engaged by the Department had attended the defendant's premises in response to his complaints regarding the stove but had been prevented undertaking repairs "because of the unreasonable conditions that the [defendant] seeks to impose upon the Department['s]...contractors in entering the premises." He also noted that "[d]uring the hearing the applicant consistently refused to agree to reasonable arrangements for access to the premises" and that he was "not willing to modify his demands in order to permit a contractor to carry out any repairs...", concluding that by his conduct the defendant was "not entitled to claim the Department...has breached its obligations..."
The plaintiff tendered letters from the defendant to the Tribunal dated 3 and 13 December 2002. The letter of 3 December had the effect of inviting the Tribunal to transfer the matter for determination to a court under s 23 of the CTTT Act "if you think that you may not be able to [give] a proper hearing for the case." The apparent reasons for the transfer were that the defendant did not trust the "personnel registrars or members" as he was in "possession of evidence that [the Tribunal] have engaged to conspiracies with the [Department]..." In addition the defendant foreshadowed further litigation, stating " [a]s more actions appear to be in store and I act unrepresented against the might of government agents and my health severely tried and battered I can afford no carelessness as a result of that endless dispute I live in my tenement under siege and that has to end." It does not appear, at least from the documents tendered by the plaintiff, that the Tribunal responded to the letter. The letter of 13 December, which is addressed to Mr Moore and is of some length, made complaint of Mr Moore's decision and catalogued matters which the defendant sought to reagitate.
It is plain from the Member's reasons that the proceeding was vexatious as it was commenced without reasonable grounds.
Consumer, Trader and Tenancy Tribunal proceeding - CTTT 03/48426
On 14 November 2003 the defendant lodged an application with the Tribunal for orders that the Department "stop breaching the clause (6) (6.1) (6.2) of the tenancy Agreement." The basis for the application was that the defendant's "privacy" was being disturbed by other residents, whom he described as "persons mentally disturbed", of the unit block in which he resided. The defendant subsequently applied to withdraw the application on the same day as lodgement and it was withdrawn by the Tribunal on 20 November 2003.
Having regard to the withdrawal, I do not intend to take this matter into account.
Consumer, Trader and Tenancy Tribunal proceeding - CTTT 04/05747
On 5 February 2004 the defendant filed an application (04/05747) for orders that the Department (referred to as the agent) and its personnel not "breach clauses 17.2-17.3 of the tenancy agreement" and "the return of a sensor card." On 20 February 2004 the Tribunal made orders, with the consent of the Department, that the Department provide the defendant a "second security card" and otherwise dismissing the application which, in substance, claimed that the Departmental officers on the premises without giving notice to the tenants were trespassers. In dismissing the application the Tribunal noted that it "is not satisfied (at the civil standard of proof) that the grounds required to make the orders sought have been [established]."
The statement of the matter dismissed is enough to establish that it was vexatious. I note also that, when the defendant was asked to pay for a transcript of the proceedings in accordance with the prescribed fees, he responded with an insulting and abusive letter. His conduct in this respect was deliberately designed to harass and annoy.
Consumer, Trader and Tenancy Tribunal proceeding - CTTT 04/12552
On 9 March 2004 the defendant lodged an application to enforce the order made by the Tribunal on 20 February 2004 requiring the Department to provide the defendant with a sensor card. The Department filed evidence indicating that it had attempted to arrange for the defendant to collect the sensor card from its office, as it required him to sign an acknowledgment of receipt. The matter was heard on 26 March 2004 and the application dismissed as the card was provided to the defendant at the hearing. The Tribunal found that the card had not been received by the defendant "pursuant to orders on file No RT 04/05747 on 20/2/04" because the "Department...wanted [the defendant] to sign personally for receipt of security card and [the defendant] wanted it posted to him."
The plaintiff submits that the proceeding was vexatious as it was commenced without reasonable grounds "in that [the defendant] refused reasonable attempts to provide the sensor card and so no breach of the tenancy agreement could have been found."
The plaintiff further submitted that in the course of his dealings with the Tribunal, the defendant acted in a manner which harassed or annoyed Tribunal staff. In support of the latter submission, the plaintiff points to two letters from the defendant addressed to the Tribunal dated 15 February and 23 March 2004. The former was a letter in respect of proceeding CTTT 04/05747 and is therefore not relevant to the proceeding under consideration. The latter however relevantly provided -
"In accordance with my letter of 25/02/2004 you are given in due process another fourteen (14) days for to provide me with a complete copy of the file of the case and hard copy transcripts.
I want what I request and nothing less or more whether you have a valid and legal grounds not to comply as such prepare to state so in the respective tribunal where I shall force to haul your rear ends or that of your representative.
The present is an ultimatum to your response of 18/03/2004."
In my view the proceedings were vexatious as commenced without a reasonable basis and the defendant also conducted himself in a manner deliberately calculated to annoy.
Consumer, Trader and Tenancy Tribunal proceeding - CTTT 06/41710
On 17 August 2006 the defendant lodged an application for orders that the Department stop overcharging the defendant in respect of his rent and that it stop "harassing me with unsolicited correspondence and phone calls." The matter was heard by the Tribunal on 7 September 2006. In dismissing the application the Tribunal concluded that it did not have jurisdiction to entertain a claim relating to the "amount of a rental subsidy provided" and it was satisfied that the "balance of the claim is misconceived."
Given the lack of information about what transpired at the hearing, I am not satisfied that the proceedings were vexatious.
Consumer, Trader and Tenancy Tribunal proceeding - CTTT 06/45367
On 8 September 2006 the defendant filed an application seeking orders against the Department "money of $1,840 paid under fraudulent claim for water by the agent of the landlord to be immediately reimbursed", "money of $207.10 paid in overcharged rent rate to be returned" and "inane and harassing correspondence by the agent to be...stopped." The defendant filed a number of documents with the registry of the Tribunal including letters addressed to him by the Department relating to payment of his water rates, copies of receipts for payment of those rates and other documents prepared by the Department. The application was heard on 28 September 2006 by Member Farey of the Tribunal who dismissed the application on the basis that the defendant's oral evidence "left the Tribunal in no doubt that [he] was seeking the same relief as dealt with on 7 September 2006" and that the Tribunal was not permitted to "revisit" an application which had been finally dealt with by another member and because the defendant did not seek a review of that decision "the matter became res judicata."
On 26 August 2008 the defendant filed a general case management document in which he set out in detail the events of 9 April 2008. On 17 October 2008 the defendant filed a statement of claim by which the Department of Education as a defendant and in which he repeated the grounds pleaded in the summons.
The defendants filed a notice of motion on 23 October 2008 seeking summary dismissal of the statement of claim or that it be struck out pursuant to parts 13 and 14 of the UCPR respectively. On 13 February 2009 they filed written submissions in support of the application. The matter was heard by Schmidt J on 24 February 2009, the defendant appearing in person and Mr Fordham of counsel appearing for the defendants. Her Honour delivered judgment on 5 March 2009 dismissing the proceedings with no order as to costs (Rouvinetis v Varady [2009] NSWSC 109). In dismissing the summons her Honour concluded that there was no basis upon which a duty of care could be said to be owed by either the Department of Education or Dr Varady to the defendant and that no amendment to the pleadings could remedy the deficiencies in the defendant case.
In my view, the proceeding was vexatious, having been commenced without reasonable grounds.
Administrative Decisions Tribunal proceeding - ADT 093059
By way of letter dated 30 September 2008 the defendant made an application under the FOI Act to the Department of Education seeking access to documents relating to the practice of permitting parking of vehicles on the grounds of the Sydney Girls' and Sydney Boys' high schools by persons attending sporting matches at the "Sydney stadium" in return for a fee. A number of letters were exchanged between the defendant and the Department of Education regarding his application and on 3 December 2008 the Department of Education wrote to the defendant advising him of the inquires undertaken by it in respect of his application and providing him with document entitled "Parking Procedures & Notes" produced to it by the Sydney Boys' High School. The defendant was invited to make inquiries of the Parents and Citizens Association as the department did not hold any additional documents.
In response to the letter of 3 December 2008 the defendant wrote to the Department of Education on 11 December 2008 expressing his dissatisfaction with the response to his application stating, "[d]eal with the application properly, take your time, the author knows how hard it is and shall appreciate any good information you will be able to come with" and repeating his request for access to documents in abrupt and abusive language. On 15 December 2008 the Department of Education wrote to the defendant advising him of his rights to apply for internal review and on 18 December 2008 the defendant applied for internal review. An internal review was conducted by Trevor Fletcher, Deputy Director-General of Schools, and the original determination of 3 December 2008.
On 3 March 2009 the defendant lodged an application for review of the decision with the ADT seeking review of the decision of Mr Fletcher. The reasons stated for the application were "[f]or obtaining the information initially applied". The defendant filed written submission on 2 March 2009 in which he provided a detailed, although rambling and sometimes incoherent, chronology of correspondence with the Department of Education regarding his FOI application in which he made an allegation of criminal activity on the part of Dr Varady. The defendant subsequently filed further submissions on 22 June and 31 July 2009 which, for the most part, either rearticulated matters contained in the defendant's original submissions or dealt with irrelevant matters. Submissions were filed on behalf of the Department of Education. The application was heard by Judicial Member Montgomery on 15 June 2009. The defendant appeared in person and Mr Bilbe-Taylor appeared for the Department of Education. On 11 August 2009 Member Montgomery dismissed the application. In his decision he noted that the defendant sought an order requiring the Department of Education to locate additional documents to that provided which the defendant asserted the former "must hold". After considering the relevant statutory provisions of the FOI Act, Member Montgomery concluded that the ADT was without jurisdiction to order the Department of Education to conduct a search for additional documents and the application must therefore be dismissed.
It would be naïve to suppose that this application was not being pursued, regardless of the merits, in the course of the defendant's attempt to vindicate the anti-Semitic prejudice to which I have already referred. The proceeding was vexatious, having been commenced without reasonable grounds.
Supreme Court proceeding - SC 15679 of 2008
On 28 October 2008 the defendant filed a statement of claim in this Court against David Knoll of the Jewish Board of Deputies ('Board') alleging "negligence", "failing duty of care" and "failing reasonable precautions" arising from the events on 9 April 2008 while the defendant was at the Sydney Girls' High School. Shortly put he pleaded that the duty of care arose from the alleged hiring by the Board of private security guards who assaulted the defendant. He also pleaded that Mr Knoll breached the "Policy Statement and Implementation Procedures N.S.W. Department of Education 1994". He claimed compensation in the amount of $1,000,000. The defendant also filed a document entitled "general case management" in which he made allegations regarding the Jewish community and expressed his opinion on matters relating to that community in Australia and internationally.
On 22 November 2008 an amended statement of claim was filed in which the Board was named as the defendant in place of Mr Knoll. On 22 December 2008 the defendant filed a notice of motion seeking an order that the compensation claimed by him be paid. On 24 December 2008 the Board filed a notice of motion seeking to have the notice of motion and amended statement of claim dismissed. On 5 January 2009 the defendant filed a notice of motion seeking a pro bono referral. On 8 May 2009 Buddin J made an order that the defendant be referred to the Pro Bono Panel for legal assistance, resulting in Mr Gormly SC being briefed to appear.
On 14 July an amended statement of claim was filed pursuant to a grant of leave on 9 July 2009, which named Mr Knoll and Paliguard Pty Limited as the defendants. On 22 July 2009 a further amended statement of claim was filed naming all of the members of the Board as defendants. The statement of claim alleged negligence, wrongful imprisonment, assault and battery arising from the events of 9 April 2008 and seeks damages, general damages, exemplary damages, aggravated damages, interest and costs.
On 2 October 2009 the defendant filed a notice of motion seeking an order that the proceedings be heard by a jury on the basis that Rotham J was listed as a defendant, the impartiality of this Court was therefore affected. On 20 October a notice of motion was filed by the defendants seeking (inter alia) that the further amended statement of claim be dismissed or struck out. R A Hulme J heard the motions on 29 October 2009 and his Honour gave judgment on 19 November 2009 (Rouvinetis v Knoll [2009] NSWSC 1212) dismissing both motions. All parties were represented by counsel at the hearing. Hulme J dismissed the motion seeking summary dismissal of the further amended summons, finding that the material before him was inadequate to permit a conclusion that no reasonable action was disclosed. In dismissing the motion seeking the matter to be determined by a jury his Honour concluded that the interests of justice did not require a trial by jury. His Honour reserved the question of costs and after receiving submissions from both parties ordered the defendant to pay costs. The defendant was granted leave to amend his statement of claim.
On 10 November 2011 the Court gave verdicts for the defendants plus costs. However, the plaintiff does not submit that the proceeding was vexatious.
Proceedings against a tenant
Supreme Court proceeding - SC 12504 of 2000
On 22 September 2000 the defendant filed a summons in this court commencing proceedings against Ms Beverly Grant seeking "orders for compensation" and orders that Ms Grant answer "global charges" for offences against ss 78 and 83 of the Criminal Proceeding Act 1986 and "malicious prosecution with injury to reputation". The defendant filed an affidavit in which he deposed that Ms Grant had been misappropriating electricity by using power points in the car park of the unit block in which both her and the defendant resided and that false allegations had been made against him by Ms Grant who had (inter alia) applied for an apprehended violence order, as it was then termed, against the defendant. Reference was also made to Tribunal proceeding CTTT 25379/98 the history of which is set out above. Ms Grant filed a notice of appearance in October 2000. A transcript of a hearing before Levine J on 24 November 2000, at which Ms Grant was not present, the defendant clarified his position by informing his Honour that he was seeking compensation in the amount of $1,000 to be paid to the Children's Hospital at Randwick by Ms Grant as a result of what he said were unsuccessful steps taken against him over a period of four years.
The Court record indicates that the matter came before Master Harrison on 3 April 2001 and, while the plaintiff did not tender a written judgment of her Honour, it pointed to the judgments of Kirby J in Grant v Rouvinetis [2001] NSWSC 667 at [5] and O'Keefe J in Grant v Rouvinetis [2001] NSWSC 513 at [5] in which both judges refer to the summons, although referred to as a statement of claim, being struck out by Master Harrison. It appears from the judgment of O'Keefe J at [5] and [6] that the defendant filed a further statement of claim in similar, but not identical form, on 5 April 2001 and that it was struck out by Master Malpass on 24 April 2001.
The plaintiff submits that even in the absence of the relevant originating process (which were not tendered by it) I should be satisfied, having regard to the procedural history of the proceeding which is briefly referred to in the judgments of Kirby and O'Keefe JJ above, that the proceeding was vexatious, having been commenced without reasonable grounds and to harass or annoy Ms Grant. I am so satisfied.
Supreme Court proceeding: Grant v Rouvinetis [2001] NSWSC 513
On 21 June 2001 O'Keefe J delivered judgment. At the commencement of the judgment his Honour stated that the defendant had filed a "Notice of Motion (Notice of Appeal)" on 5 June 2001 commencing the matter. Further on in the judgment at [8] his Honour makes reference to the affidavit filed in support of the motion by the defendant. Whilst a copy of the motion was not tendered by the plaintiff, a copy of the affidavit in support filed on 5 June 2001 was. The affidavit (inter alia) listed the grounds upon which the defendant sought review of the decision of Master Malpass striking out his application on 24 April 2001. It complains of an error of law 'by not following the court rules and violating "68" and "81" for not directing the statement of claim to D.C.M', a denial of procedural justice arising from that failure, an abuse of process by dismissing the statement of claim on the basis that no cause of action was disclosed and not affording the defendant an opportunity to "complete any omission (sic), as its fair and as required". The defendant also alleged that Master Malpass "acted with insolence and malice" towards him and that he suffered inequality arising from being self represented. Included in the affidavit was an outline of the proceedings before Master Malpass and of his correspondence with the Kingsford Community Legal Centre, the New South Wales Bar Association and the Chief Justice of New South Wales regarding pro bono legal assistance. All of which is stated in hyperbolic terms. The affidavit concludes with the defendant stating "[I] demand my statement of claim restored as it aims to unravel conspiracy against my person by a sinister [Ms Grant]... and persons and bodies who could put me easily behind bars..."
Annexed to the affidavit was a letter addressed to the United Nations in Geneva accusing the High Court of "national treason, dictatorship, and gross and massive abuse of human rights."
At the hearing before O'Keefe J on 16 June 2001 the defendant appeared in person and Mr Lee appeared for Ms Grant. In his judgment of 21 June 2001 dismissing the application and ordering the defendant to pay costs, O'Keefe J stated that the affidavit "graphically indicates the emotional and immoderate approach adopted by the [defendant]" and found that allegations that Master Malpass was "stern" and made a statement "in an outrage" could not be maintained by the defendant when cross-examined on the matter and, in fact, it was the defendant who exhibited outrage to the Master. His Honour noted that in the hearing before him the defendant conceded that the material relating to pro bono assistance and the letter to the United Nations was irrelevant. His Honour stated:
"[13] It would appear from the foregoing that the plaintiff regards his proposed action as part of a crusade to expose what he sees as the shortcomings of the judicial system in Australia."
His Honour went on to consider and dismiss each of the grounds raised by the defendant in his application concluding:
"[20] An examination of the statement of claim filed by the [defendant] in my opinion reveals that it infringes the provisions of [Part 15 rule 26 of the Supreme Court Rules]. At the very least its form is such as to have the tendency to cause prejudice embarrassment and delay (sic). Accordingly it is a pleading which was appropriately struck out.
[21] When regard is had to the defective form of the pleading, the delay on the part of the plaintiff in commencing the present application and the failure of each of the grounds of appeal I am of the opinion that the application must be dismissed."
The plaintiff rightly submits that the proceeding was vexatious as it was commenced without reasonable grounds.
Supreme Court proceeding: Grant v Rouvinetis [2001] NSWSC 667
On 14 June 2001 Ms Grant filed a summons seeking an order that the defendant be prohibited from commencing proceedings against her without leave of the Court. A number of affidavits were filed in the proceedings. It appears that no documents were filed by the defendant in the proceeding. The matter was heard by Kirby J on 8 August 2001, orders having previously been made for the service of originating process and notice of the hearing on the defendant and adjournments granted for allowing those things to be done. Notwithstanding, the defendant did not appear at the hearing on 8 August 2001 and his Honour, having received affidavits of service evidencing that the defendant was aware of the hearing, determined that the matter should proceed in his absence (Grant v Rouvinetis [2001] NSWSC 667). In granting the application his Honour concluded -
"Here the [defendant] is a litigant in person. Whilst he cannot be expected to know the intricacies of pleading and may be forgiven difficulties in formulating a claim, the documents which have been issued by him and ultimately struck out by each of the Masters betray not simply ignorance of the rules, but rather an ulterior motive towards Ms Grant. I believe that the appropriate inference from the nature of the allegations and the nature of the pleadings, and from the general history is that the proceedings were commenced to annoy and embarrass Miss Grant and were manifestly groundless."
It is evident that such a proceeding must be vexatious and an abuse of the process of the court.
Discussion
The defendant has filed four sets of written submissions and, in addition, made oral submissions in the course of the hearing. I do not intend to set out his submissions in detail. In short, he contended that in all the cases relied on he had acted appropriately to vindicate his rights and that this was difficult because he did not have legal assistance and had only a lay person's understanding of the law. He submitted, in substance, that the adverse decisions that resulted from his actions were mistaken. He repeated his allegations of the crimes and conspiracies to which he claimed to have been subjected. He sought to litigate the matter (at the time still on foot in this Court) concerning the injuries he suffered at the hands of security guards at the dinner at Sydney Girls' High School. The hearing before me commenced with the following submission -
"DEFENDANT: Before we go further, what is your full name?
HIS HONOUR: All these matters are available on the List, why do you need my full name?
DEFENDANT: Because I have a matter trust and confidence in the Court. There are serious allegations against the Jewish community of Sydney.
One of the judges ... runs paramilitary organisation. Several barristers of his own community are defendants. I am facing the heavy guns of the law, practicing in New South Wales, and I have grave expectation the present proceedings are outcome of conspiracy, further action, so I want to address to you that I am, if a problem of confidence, if you tell me you can be fully trusted I accept it. Are you to be fully trusted?
HIS HONOUR: Mr Rouvenitis, I am a Judge of the Supreme Court of New South Wales. I hold that office by virtue of appointment by the Governor. I will do my duty. You may sit down.
DEFENDANT: That pacifies me. I have here some documents of submissions."
The defendant's submissions were rambling and replete with gross exaggerations and wild accusations of one kind or another against members of the judiciary and the Tribunal, police and employees of the Department, as well as simple insult and vulgar abuse. He sought to demonstrate that many, if not all, of the matters relied on by the plaintiff were commenced by him for good reasons and wrongly decided against him.
In substance, the defendant contended that he is the victim of a massive criminal conspiracy at the instance of the various servants of the State and was provoked by their actions into taking the proceedings which are the subject of evidence. Those proceedings were fully justified and failed because of the conspiracy and/or the fact that he was legally unrepresented.
Conclusion
I take into account that the defendant has come to this country, as I understand it, when he was an adult and might therefore have some difficulty in understanding the legal system. Although it is obvious that English is not his first language, he is quite fluent, has a substantial vocabulary and well capable of expressing himself clearly. There is no doubt in my mind that he understands fully what he says and what is said to him. I have given careful consideration to whether his possible ignorance of the legal system and difficulty with language provides any explanation or possible excuse for his frequent unsubstantiated allegations, insults and abuse. Making every possible allowance, however, I have concluded that neither of these factors have played any significant role in his conduct or the substance of his contentions.
In my view it is plain, when the course and character of the defendant's litigation is looked at as a whole, that he has persistently acted without a proper basis in law and fact. His submissions present the picture of a man for whom any slight or grievance is the result of criminal conduct or overweening State power, which must be combated and denounced. They are often couched in or use insulting and abusive language. It is clear from that picture, case after case, decision after decision, the correctness of which he rejects even to the present time, that he has harboured for many years a deep resentment against the Department, which has not simply accepted the truth of his allegations about its staff and his characterisation of the mode in which it carries out its functions, a matter which he finds offensive and, I think, humiliating.
The frequent rejection of his claims by the Tribunal have led him to allege that the Department and the Tribunal have been engaged in a conspiracy against him, as indeed, have all the parties with whom he has been in litigation. For all I can tell, perhaps he believes these allegations. However, I am certainly satisfied that he makes use of almost any grievance or slight as an opportunity to have his day in court, when he can in a public arena declare both his own propriety and the dishonest and criminal enmity of those who decline to accept it. The actual substance of the dispute is of little importance except to the extent that it provides grist to the mill of his indignation.
It is not, however, necessary to explain the defendant's motives. The objective picture is clear. The unnecessary burden to which the Department has been put time after time for over a decade has resulted in a significant waste of resources, not to speak of the time taken up in the Tribunal and this Court on appeal.
I take into account, of course, that granting the orders sought will present a significant obstacle for the defendant in obtaining access to the courts and tribunals of this State. However, this follows from the appropriate application of the Act in the defendant's case. All these cases present issues of degree. There is no bright line that marks the boundary indicating that a litigant has acted vexatiously. In this case I have reached the conclusion, which I think is inevitable, that the defendant has frequently instituted and conducted proceedings that are an abuse of the process of the Tribunal and this Court, for which there was no reasonable ground and have been conducted in a way so as to harass or annoy. Furthermore, it is evident from his submissions in this case that he has no intention of changing his approach to the institution of proceedings. His calling of Ms Fraser to make unfounded allegations of conspiracy against both her and the plaintiff is evidence of this attitude.
Accordingly, I make the following orders under s 8(7) of the Act -
1.The defendant is prohibited from instituting proceedings in any tribunal or court in New South Wales without leave of this Court.
2.All of the proceedings in New South Wales already instituted by the defendant, with the exception of an appeal, if any, from the decision in Rouvinetis v Knoll [2011] NSWSC 1352 are stayed.
Decision last updated: 12 June 2012
2
9
14