Attorney-General v Skinner
[2013] VSC 259
•20 May 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. S CI 2012 4735
| THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| GRANT JASON SKINNER | Defendant |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 May 2013 | |
DATE OF JUDGMENT: | 20 May 2013 | |
CASE MAY BE CITED AS: | Attorney-General v Skinner | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 259 | |
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PRACTICE AND PROCEDURE – Vexatious litigant – Requirements for declaring a person to be a vexatious litigant – Whether defendant habitually and persistently instituted vexatious legal proceedings – Exercise of discretion - Supreme Court Act 1986, s 21.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms CM Harris | Victorian Government Solicitor’s Office |
| For the Defendant | No appearance |
HIS HONOUR:
Introduction
In March 2000, Grant Jason Skinner, the defendant, entered into a hire purchase agreement in respect of a Ford commercial motor vehicle (“the vehicle”). On 25 May 2001, the defendant commenced a County Court proceeding against B.S. Stillwell Motor Company Pty Ltd (“Stillwell”) for damages alleging, amongst other things, that Stillwell had engaged in misleading and deceptive conduct in relation to the plaintiff’s purchase of the vehicle. On 17 October 2003 that proceeding was settled upon terms that involved Stillwell indemnifying the defendant in respect of the defendant’s obligations under the hire purchase agreement; Stillwell paying the defendant a sum of money; and the defendant transferring the vehicle into Stillwell’s name at the expense of Stillwell.
Since that time, on various dates between 2004 and the present, the defendant has issued or sought to issue multiple proceedings in, variously, the former Legal Profession Tribunal, the Victorian Civil and Administrative Tribunal (“VCAT”), the Federal Magistrates’ Court,[1] and the County Court. All of these proceedings arise out of, in one way or another, the defendant’s purchase of the vehicle back in March 2000. In none of these proceedings has the defendant been successful.
[1]As that Court was formerly called.
Section 21 of the Supreme Court Act 1986 relevantly provides:
21 Vexatious litigants
(1)The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant.
(2)The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has—
(a)habitually; and
(b)persistently; and
(c)without any reasonable ground—
instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.
(3)An order under subsection (2) may provide that the vexatious litigant must not without leave of—
(a)the Court; or
(b)an inferior court; or
(c)a tribunal constituted or presided over by a person who is an Australian lawyer—
do the following—
(d)…
(e)…
(f)commence any specified type of legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal.
…
In this proceeding, the plaintiff, the Attorney-General, seeks an order pursuant to s 21 of the Supreme Court Act declaring the defendant to be a vexatious litigant. An order is also sought that the defendant, must not without the leave of the Court, an inferior Court, or a Tribunal constituted or presided over by a person who is a barrister and solicitor of the Court, commence any legal proceedings arising from, or referring to (directly or indirectly), the circumstances surrounding the purchase of the vehicle.
An opportunity to be heard
Section 21(2) of the Supreme Court Act permits the Court, after hearing or giving the person an opportunity to be heard, make an order declaring that person to be a vexatious litigant if the Court is satisfied of the matters set out in that section.
The defendant did not appear at the trial of this proceeding. Accordingly, the first issue to be determined is whether he was given the opportunity to be heard required by s 21(2) of the Supreme Court Act.
On 16 October 2012, Zammit AsJ fixed this proceeding for trial on 15 May 2013. By a summons filed 16 April 2013, the defendant sought, amongst other orders, an order that the hearing of the proceeding be adjourned until the defendant could obtain legal representation. This summons was made returnable on 2 May 2013.
On 2 May 2013, the defendant did not appear at the hearing of his adjournment application. The application came on for hearing before Daly AsJ on that day. On that day, her Honour dismissed the defendant’s application and reserved costs.
On 3 May 2013, the plaintiff’s solicitor wrote to the defendant informing him that his application for an adjournment had been dismissed. There was then additional correspondence between the parties in which the defendant foreshadowed the making of a further adjournment application of the trial on 15 May 2013. The plaintiff responded to this correspondence saying that any adjournment application would be opposed.
On the morning of the trial, the defendant sent a letter to the plaintiff and the Court headed:
URGENT URGENT URGENT URGENT URGENT
To: Attorney-General and Supreme Court of Victoria
From: Grant Skinner
Hearing Today 15th May 2013
The letter referred to some matters previously raised by the defendant in correspondence and affidavits, before concluding:
Again I wish to state that I can not attend Court today due to the fact that Stephen Lee is going to use his experience as a lawyer to state his case and yet I have not got a lawyer to defend on my behalf.
The defendant’s letter did not, in terms, seek an adjournment. Further, at no time since 2 May 2013 has the defendant sought to appeal the order of Daly AsJ refusing the defendant’s application heard that day to adjourn the trial. In any event, having considered all of the material filed on behalf of the defendant, I formed the view at the commencement of the trial that there was no basis for any adjournment. Daly AsJ was clearly correct to refuse the defendant’s application.[2]
[2]AON Risk Services Australia Limited v Australian National University (2009) 239 CLR 175.
In my view, the plaintiff could not have thought otherwise than that the trial of the plaintiff’s application would proceed as listed on 15 May 2013. When the matter was called on that day, there was no appearance for the defendant. There can be no doubt that the defendant was given the opportunity to be heard, in respect of the plaintiff’s application, required by s 21(2) of the Supreme Court Act.
Applications made, and proceedings issued, by the defendant between 2004 and the present
In 2004, the defendant commenced a proceeding against Slater & Gordon in the Legal Profession Tribunal (“the first Slater & Gordon proceeding”). Slater & Gordon had been the defendant’s solicitors in the original proceeding against Stillwell in relation to the purchase of the vehicle.
In the first Slater & Gordon proceeding, the defendant alleged breaches of duty against Slater & Gordon as follows:
(a) Failing to property listen to the client.
(b) Failing to understand the client’s claim.
(c) Advising the client to settle the matter for an amount which did not adequately compensate the client.
(d) Failing to ensure that Mr Ahern of counsel was retained for the second mediation.
On 30 August 2004, the Legal Profession Tribunal dismissed the defendant’s claim against Slater & Gordon. The tribunal described the defendant’s allegations as “general” and “devoid of particulars”. Particular allegations made by the defendant were described by the tribunal as having “no substance” or being “without substance”. The tribunal’s reasons concluded:
All of the allegations made by Mr Skinner fall a long way short of establishing negligence on the part of Slater & Gordon, or a breach of its terms of engagement, or of any fiduciary obligation owed to Mr Skinner.
On 9 June 2005, the defendant commenced a second proceeding against Slater & Gordon (“the second Slater & Gordon proceeding”). This proceeding was commenced in VCAT, naming the respondent as Slater & Gordon Pty Ltd.
On 1 September 2005, Senior Member Vassie ordered the defendant to file and serve a document setting out “in intelligible form” the respects in which the defendant alleged that Slater & Gordon did not act on his behalf with all due care or otherwise as it should have done in the original Stillwell proceeding. Senior Member Vassie noted that one of the claims articulated by the defendant on that day was that Slater & Gordon had “failed to inform him effectively or at all of the existence of engineers’ reports which, had he been aware of them, would have led him to not settling [the earlier proceeding]”.
On 24 May 2007, VCAT dismissed the second Slater & Gordon proceeding pursuant to s 75 of the Victorian Civil & Administrative Tribunal Act 1998 (“the VCAT Act”).[3]
[3]Section 75(1)(a) of the VCAT Act provided for the dismissal of a proceeding which was “frivolous, vexatious, misconceived or lacking in substance”.
In his reasons for dismissing the second Slater & Gordon proceeding, Judge Bowman said:
The claim is misconceived or lacking in substance. It is also an abuse of process. Most of [the matters raised] were raised by Mr Skinner in a hearing before the Legal Profession Tribunal. He was alleging negligence and breach of duty on the part of Slater & Gordon. The finding of that tribunal was that all the allegations made by Mr Skinner fell a long way short of establishing negligence on the part of Slater & Gordon or of establishing a breach of their terms of engagement or of their fiduciary duty.
Judge Bowman went on to characterise the second Slater & Gordon proceeding as “totally misconceived”, “completely lacking in substance”, and “an abuse of process and bound to fail”.
On 5 June 2007, twelve days after the dismissal of the second Slater & Gordon proceeding, the defendant commenced another VCAT proceeding in relation to the vehicle. This proceeding was commenced against the Ford Motor Company of Australia Pty Ltd and Ford Credit Australia Limited (“the first Ford proceeding”).
On 11 June 2008, Judge Ross[4] dismissed the first Ford proceeding as against the Ford Motor Company of Australia Pty Ltd pursuant to s 75 of the VCAT Act. In the course of his Honour’s reasons, his Honour set out the history of the matter including the original proceeding against Stillwell and the dismissal of the first Slater & Gordon proceeding and the dismissal of the second Slater & Gordon proceeding. Having analysed the claim against the Ford Motor Company, Judge Ross concluded that he was satisfied that the defendant’s claim against it was “bound to fail”.
[4]As his Honour then was.
On 21 August 2008 the first Ford proceeding was the subject of a hearing before Senior Member Megay. On that day Senior Member Megay, again in reliance upon s 75 of the VCAT Act, dismissed the defendant’s claim against Ford Credit. In the course of dismissing the first Ford proceeding against Ford Credit, Senior Member Megay said:
Whilst Mr Skinner remains aggrieved about the outcome of his litigation to date, I am not persuaded that the present action has even a scintilla of a chance of success in this Tribunal.
On the material before me it does seem that the matter is statute barred, but in any event, there is nothing before the Tribunal to persuade me that Mr Skinner has a valid cause of action against Ford Credit … .
On 14 December 2007, while the first Ford proceeding was still on foot against the Ford Motor Company and Ford Credit, the defendant attempted to file an application in VCAT relating to the original purchase of the vehicle, but this time naming VCAT as the respondent. In this application, the defendant said:
This is a cost dispute which has been brought about due to the inability of VCAT being able to perform their function as outlined in the VCAT Act.
However, Senior Registrar Nelms refused to permit the defendant to file this claim against VCAT. But the defendant was not deterred. Pursuant to s 71(2) of the VCAT Act, the defendant requested a referral of his application to the Tribunal for review of this rejection.
On 5 February 2008, the defendant’s application for review of Senior Registrar Nelms’ refusal to permit the defendant to file his application against VCAT was heard by Senior Member Vassie. Senior Member Vassie ordered that the registrar’s rejection for filing of the defendant’s application be confirmed.
On 15 December 2008, the defendant turned his attention from VCAT to the Federal Magistrates’ Court of Australia. On that day, the defendant lodged an application in the Federal Magistrates’ Court against the Ford Motor Company of Australia Limited (“the second Ford proceeding”). Allegations of the same kind that had been made against Stillwell in the original County Court proceeding were made by the defendant against Ford in the second Ford proceeding.
On 24 March 2009, the defendant filed an incoherent notice of a constitutional matter pursuant to s 78B of the Judiciary Act 1903 (Commonwealth). On 25 March 2009, Phipps FM[5] summarily dismissed the second Ford proceeding. In his reasons for judgment, Phipps FM said that this was the clearest of cases and that the defendant had no reasonable prospect of succeeding.
[5]As his Honour then was.
On 29 September 2009, the defendant purported to appeal the dismissal of the second Ford proceeding. However, the defendant required leave to appeal. While the defendant made no express application for leave to appeal, on 22 December 2009, Sundberg J treated the defendant as if he was seeking leave to appeal.[6] On that day, Sundberg J refused the defendant leave to appeal in respect of the dismissal of the second Ford proceeding.
[6]Skinner v Ford Motor Company of Australia Limited [2009] FCA 1554 [6].
On 15 February 2010, the defendant attempted to file another proceeding against the Ford Motor Company of Australia (“the third Ford proceeding”). On this occasion, the defendant attempted to file the proceeding in the Brisbane Registry of the Federal Magistrates’ Court. On 3 March 2010, Registrar Belcher, pursuant to Rule 2.06(1)(a) of the Federal Magistrates’ Court Rules 2001, refused to accept the defendant’s application for filing.
Again, the defendant was not deterred. On 16 March 2010, the defendant made application for review of Registrar Belcher’s decision to refuse to accept his application for filing in the third Ford proceeding.
The defendant’s application for review was fixed for hearing on 5 May 2010. In an affidavit in support of his application,[7] the defendant deposed as follows:
I say that before the 5th May 2010 hearing I wish to have both Ford and the Federal Magistrates’ Court to provide a person who has an understanding of Part VIA of the Trade Practices Act as past incompetence regarding this legislation has cost me time and money. I want both Ford and the Federal Magistrates’ Court before or on the 5th May 2010 to provide me in the form of an affidavit their respective representatives (sic) understanding of Part VIA of the Trade Practices Act 1974 and proportionate liability generally.
[7]Sworn 19 April 2010.
On 5 May 2010, Burnett FM[8] dismissed the defendant’s application for review. Burnett FM, in the course of his reasons, described the third Ford application as “one which would amount to an abuse of process, because on its face, it purports to revive an earlier application that has already been dismissed by this Court.[9]
[8]As his Honour then was.
[9]Skinner v Ford Motor Company of Australia Limited [2010] FMCA 321 [4].
Less then two months later, on 29 June 2010. the defendant lodged a further application with the Federal Magistrates’ Court in Brisbane against the Ford Motor Company of Australia (“the fourth Ford Proceeding”).[10] At best, this application would be described as incoherent. This further application listed six final orders sought by the defendant, the first of which was in the following terms:
This application is an application made under the Acts Interpretation Act 1901 and the power vested in this court under Section 15C of that Act and to determine the personal attack directed at me by Registrar M Belcher in his letter to me dated 21/6/2010 and to determine under the Acts Interpretation Act 1901 how I have abused the court process in previous actions with my reference to Part VIA of the Trade Practices Act 1974. This action is in no way trying to revive previous matters or hearings. This application is to establish how Registrar M Belcher can and has made a defaming statement with regards to my application to the Federal Magistrate Court and is directed to my conduct towards this court. This application can not rely on the decision of Federal Magistrate Phipps or Justice Sundberg as no reference was directed in those hearings to the Acts Interpretation Act 1901. Both the previous hearings were interlocutory which excluded any res judica or estoppel. In order for me to be satisfied that this application and the previous applications have not been a personal attack on my conduct before this court, I ask this court to determine the direct meaning of the following provisions of the Trade Practices Act 1974 as Parliament intended.[11] Judge made law can not over ride statute law. This application is to stop the stupid interpretation of what is a fundamental part of the Trade Practices Act 1974.
[10]Although it must be noted that the originating document filed on 29 June 2010 to commence the fourth Ford proceeding was given the same file number as that of the then inutile third Ford proceeding.
[11]The provisions were ss 87CB, 87CD, 87CG, 87CI (and perhaps also Part VIA generally) of the Trade Practices Act, 1974 (Commonwealth).
On 16 December 2010, Registrar Belcher transferred the fourth Ford proceeding to the Melbourne Registry of the Federal Magistrates’ Court. On 4 October 2010, the defendant filed a notice of discontinuance of the fourth Ford proceeding. Leave was given in respect of the filing of this notice on 5 October 2010.
Less than three months later, the defendant turned his attention back to the Victorian courts. On 14 December 2010, the defendant commenced another proceeding against the Ford Motor Company of Australia (“the fifth Ford proceeding”). This proceeding was commenced in the County Court.
In a document headed “Statement of Claim” attached to the writ in the fifth Ford proceeding, the defendant made the following allegations:
On the 14th of September 2010 I supplied Ford Motor Company with a 60 day invoice for a specified amount for the loss associated with the supply of my new, defective, untested commercial vehicle;
…
In 2003 in the County Court of Victoria at Melbourne …, mediation between myself and Knox Ford was conducted and a settlement was reached by Slater & Gordon for the amount of $3,000 with Knox Ford (Ford agent), for the supply of my untested, defective commercial vehicle. This settlement was not in full satisfaction of the statement of claim but was proportionate to Knox Ford’s liability for the supply of my untested, defective commercial vehicle;
…
The current invoice to Ford Motor Company represents the unpaid amount for the loss of the TDG subcontract and the loss of income of the two rental properties. The TDG subcontract was listed on the initial sales documents in order to obtain the defective vehicle. The two rental properties were used as additional collateral to obtain the defective commercial vehicle at the point of sale.
…
The current invoice to Ford Motor Company is a demand to claim the unpaid amount of the Slater & Gordon statement of claim submitted to the County Court and as is seen in the High Court decision of Baxter v Obacelo and under current proportionate liability legislation.
In his writ in the fifth Ford proceeding, the defendant claimed the sum of $926,437. The writ also sought trial by judge and jury.
Pleadings and correspondence passed between the defendant and Ford and its solicitors. It is sufficient to say that nothing written by the defendant was coherent or disclosed anything approaching even a remotely arguable cause of action or claim.[12]
[12]Although I should note for completeness that in a muddled, prolix, irrelevant reply the plaintiff bragged that “any costs orders that [the County Court] may make against [him] are void as [he has] previously defied 2 Federal Court costs orders from … 2009 hearings …”.
On 29 March 2011, Judge Ginnane[13] summarily dismissed the fifth Ford proceeding.[14] In dismissing the proceeding, his Honour said:
There is no basis, at any level of argument, for a claim that Ford owes Mr Skinner the debt that is claimed.
[13]As his Honour then was.
[14]Skinner v Ford Motor Company of Australia Limited [2011] VCC 326.
Less than three months later, on 16 June 2011, the defendant commenced another proceeding in the County Court against the Ford Motor Company of Australia (“the sixth Ford proceeding”). Attached to the writ in the sixth Ford proceeding was a document headed “Statement of Claim”. This document was manifestly defective and did not comply with any of the rules of pleadings. The document followed the form of the fifth Ford proceeding in some respects, again relying upon an invoice issued by the defendant to Ford. However, on this occasion, the amount of the defendant’s invoice was $1,366,705.
In an affidavit filed by the defendant in the sixth Ford proceeding, the defendant deposed:
I say that the law has failed me for eleven years which started by the negligent representation by Slater & Gordon back in this Court back in 2003. I say that it is clear that Ford’s commercial interests clearly outweigh the interest of an individual. I say that corruption is the key for commercial parties to protect their interests and stop a claim like this ever seeing the light of day. I say that the law’s failure and Ford’s failure to protect me has resulted in the current invoice before this Court that will never resolve any form of equity or replace the eleven years I have lost due to the nature of this injustice. I say the system has failed me and that other people are at great physical risk from Ford and other corporations due to the corruption that exists to protect that very system that has failed me.
I say that this Court can show it is just by upholding the principles of equity and not be part of a corrupt system that protects itself from its failures. If it fails to see the injustice in this matter then I will have no place in this legal system or the rules that govern this legal system and can therefore take the future matters into my own hand to have equity served. I say if that happens both Ford and the legal system will be held responsible for such outcome.
On 14 July 2011, the defendant filed a summons seeking judgment in his favour in the sixth Ford proceeding. The matter came on for hearing before Judge Lacava on 11 August 2011. On that day, his Honour dismissed the defendant’s summons for judgment and gave summary judgment for the Ford Motor Company.
A little over three months later, on 17 November 2011, the defendant sought to commence another proceeding in VCAT. In his application, the defendant named the Roads Corporation trading as VicRoads as the respondent. The amount of the claim was $854,391. Under the heading “Describe the goods or services purchased or provided”, the defendant said:
The payment of registration fees on a new commercial vehicle with registration QPD 202 that was an untested vehicle and had no compliance for its modified specifications which resulted in the loss of opportunity on the business which the vehicle was purchased for.
On 21 November 2011, Deputy Registrar Morison, pursuant to s 71 of the VCAT Act, rejected the defendant’s application.
Four days later, on 25 November 2011, the defendant completed another VCAT application – this time naming SMG Cars Australia Pty Ltd (“SMG”), as the company name of Knox Ford, as the respondent. In this proceeding, the defendant’s claim was for $727,696.20. Again, the claim was in relation to the vehicle the subject of the original County Court proceeding.
The application against SMG came on for hearing before Senior Member Vassie on 12 December 2011. On that day, Senior Member Vassie found that the application contained “material that fails to clearly and succinctly inform other parties of the claim being made”. The defendant was ordered to provide to the Tribunal in printed legible form substituted details of the application not exceeding five printed pages and sufficient to be a document understandable in itself without reliance on any other documentation.
In response to this order, on 28 December 2011, the defendant filed a document containing the following:
The vehicle in question has been the subject of litigation in three separate VCAT hearings which are under VCAT file numbers … with Judge Ross and … with Senior Member Megay. The vehicle in question was purchased at Knox Ford in April 2000. A law suit was brought against Knox Ford in 2000 and went to mediation with Slater & Gordon in 2003. The matter was settled at mediation under the terms attached … . In 2007 Judge Bowman handed down his decision in the matter … .
…
Again and again and again. The defendant is the supplier of a NEW untested unroadworthy commercial vehicle. KNOX FORD sold QPD 202 and fraudulently registered the untested vehicle with VicRoads. The untested vehicle failed in three months causing loss to the TDG subcontract and the two rental properties that I claim above. Due to their failure to comply with settlement I asked that this application proceed on its own merit.
…
In closing, I want VCAT to explain the decisions of both Judge Bowman and Senior Member Megay and ask why Ford Credit Finance was never closed as stated in the settlement documents in the County Court in 2003 ????????????
For the sake of completeness, I should interpolate here that prior to this document it had not been suggested that Stillwell (the defendant in the original County Court proceeding) had failed to comply with the terms of settlement entered into in 2003. Similarly, nothing in those terms of settlement required the closure of Ford Credit Finance as alleged by the defendant.
On 18 January 2012, Senior Member Vassie made an order that the proceeding against SMG be fixed for a hearing at which the defendant would be required to show cause why he should be permitted to pursue the proceeding in view of the original County Court terms of settlement and the order made dismissing the first Ford proceeding.
On 24 January 2012, the defendant responded with a document in which he said:
The orders dated the 18th January 2012 have been received but cannot be complied with due to the fact that this Tribunal has violated section 97 of its own Act.[15]
[15]Section 97 of the VCAT Act provides:
“The Tribunal must act fairly and according to the substantial merits of the case in all proceedings”.
On 17 February 2012, Deputy President Lulham dismissed the proceeding against SMG. In the course of his reasons for dismissing the proceeding and dealing with costs, Deputy President Lulham said:
I am satisfied that Mr Skinner’s conduct in this proceeding is of a kind described in subsections 109(3)(a)(v) and (vi). Mr Skinner’s claim is so lacking in merit that it falls to be considered under subsections 109(3)(c) and (d).[16]
[16]Section 109 of the VCAT Act is the section which empowers the Tribunal to make costs orders. Under subsection (3) the Tribunal may make a costs order “only if satisfied that it is fair to do so, having regard to –
(a) Whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as –
…
(v)Attempting to deceive another party or the Tribunal;
(vi)Vexatiously conducting the proceeding.
… .”
While the claim against SMG was still on foot, on 3 January 2012, the defendant commenced another proceeding in the Federal Magistrates’ Court. The respondent was named as Stillwell Motor Group Cars Australia Pty Ltd trading as Knox Ford. This proceeding was referred to by Deputy President Lulham in his reasons for dismissing the VCAT proceeding against SMG on 17 February 2012. In those reasons, Deputy President Lulham said:
It is a matter of great concern that Mr Skinner issued on 3 January 2012 his Federal Magistrates’ Court proceeding against SMG, and that as recently as 6 February 2012 filed an amended statement of claim in that proceeding. Mr Skinner took those steps in that litigation after this Tribunal’s order of 12 December 2011. The amended statement of claim refers to the same vehicle and claims the same amount of damages as is claimed in this VCAT proceeding. The filing of the Federal Magistrates’ Court proceeding is a blatant abuse of process.
On 24 February 2012, O’Dwyer FM[17] summarily dismissed the Federal Magistrates’ Court proceeding. In the course of his Honour’s reasons, O’Dwyer FM said: “There is certainly a vexatious element to the nature of the proceeding” and “There is also an abuse of process aspect to it, as clearly [the matters raised in the proceeding] should not be before the court”. O’Dwyer FM dismissed the proceeding pursuant to rule 13.10, finding that there was no reasonable prospect of success on the part of the defendant and that the proceeding amounted to an abuse of process “particularly having regard to what is clearly a well defined settlement agreement, and there has been no breach of that settlement agreement”.
[17]As his Honour then was.
Notwithstanding the dismissal of his proceeding by O’Dwyer FM, the defendant, undeterred, issued a further “Application in a Case” in the dismissed proceeding. This application was issued on 7 March 2012, post dating O’Dwyer FM’s orders summarily dismissing the proceeding. On 18 April 2012, O’Dwyer FM dismissed this application as well describing it as:
It is a nullity. It does not have any legs and there is no merit in Mr Skinner’s substantive application.
On 19 September 2012, upon the application of the plaintiff in the present proceeding, Dixon J made interlocutory orders restraining the defendant from commencing or continuing proceedings in Victorian courts or tribunals in relation to the purchase of the vehicle until the determination of this proceeding.
The principles to be applied
The principles governing an application to declare a person to be a vexatious litigant have been stated and restated on numerous occasions.[18] In Attorney-General v Weston,[19] Whelan J summarised the relevant principles as follows:
[18]See generally, amongst others, Kay v Attorney-General (2000) 2 VR 436, 437-438 (Ormiston JA); Attorney-General v Horvath Senior [2001] VSC 269 (Ashley J, as his Honour then was); Attorney-General v Weston [2004] VSC 314 (Whelan J, as his Honour then was); Attorney-General v Bahonko [2011] VSC 352 (J Forrest J); and Attorney-General v Gargan [2013] VSC 222 (Pagone J).
[19][2004] VSC 314.
(1)The application seeks a remedy of a most serious nature and a clear and compelling case must be shown to warrant it.
(2)The requirements of the section are that the person must have
*instituted proceedings
*which are vexatious
*and to have done so habitually and persistently and without reasonable cause.
If the requirements are met, the Court must then consider whether an order ought to be made.
(3)A proceeding is “instituted” where originating process is filed, and also where a person counterclaims, appeals against an otherwise final determination of the substantive matter, or applies to have an otherwise final determination set aside. Interlocutory applications and appeals on interlocutory applications do not ordinarily constitute the institution of proceedings.
(4)Vexatious proceedings are proceedings which have either been brought for an improper purpose, or which have been revealed to be hopeless. Hopelessness ought to be apparent from the ultimate disposition. A genuine claim, or element of a claim, may exist within a vexatious proceeding, where it is deeply buried in untenable claims and bizarre allegations.
(5)Vexatious proceedings are instituted "habitually" where they appear to be commenced as a matter of course. "Persistence" suggests determination and an element of stubbornness. An absence of reasonable grounds will necessarily be the position where the proceedings have been revealed to be hopeless.
(6)If the requirements of the section are met, the person's conduct as a whole must be then assessed to determine if, in all the circumstances, an order ought to be made.[20]
[20]Ibid [23].
Proceedings instituted in interstate or Commonwealth courts or tribunals are not “legal proceedings” for the purpose of s 21 of the Supreme Court Act.[21] Accordingly, in determining whether the plaintiff has satisfied the requirements of s 21(2), the Court must disregard the various Federal Magistrates’ Court proceedings instituted by the defendant. Those proceedings can only be relevant if the requirements of the section are otherwise met. In such a case (the requirements of the section being otherwise met) those proceedings, being part of the defendant’s conduct as a whole, can be taken into account in determining, as a matter of discretion, whether an order should or should not be made under s 21 of the Act.[22]
[21]Ibid [9].
[22]See further, Attorney General v Horvath senior [2001] VSC 269 [14]-[16]; Attorney-General v Gargan [2013] VSC 222 [8] and [37].
Section 21(2) requires the “institution” of vexatious legal proceedings “habitually” and “persistently” and “without any reasonable ground”. In this case a question arises as to the attempt by the defendant to file originating process where a registrar or other court officer has refused to accept the document for filing. In respect of such cases, the better view appears to be that there was no institution of a proceeding. However, upon the defendant seeking and obtaining a review of such a decision, the balance of authority supports the view that a proceeding was instituted within the meaning of the section.[23]
[23]Jones v Cusack (1992) 109 ALR 313, 315 (Toohey J).
The resolution of this proceeding
In my view there are seven relevant vexatious legal proceedings which have been instituted by the defendant in the Victorian County Court and VCAT. Those proceedings are:
(a)the proceeding against Slater & Gordon in the Legal Profession Tribunal;
(b)the proceeding against Slater & Gordon commenced in VCAT in June 2005;
(c)the first Ford proceeding;
(d)the VCAT proceeding where VCAT was named as a respondent;
(e)the fifth Ford proceeding;
(f)the sixth Ford proceeding; and
(g)the VCAT proceeding commenced against SMG.
Each of these proceedings was vexatious, at least on the basis of being hopeless and without any substance. The cases against Slater & Gordon were demonstrated to be manifestly hopeless. Further, the second Slater & Gordon proceeding was merely an attempt to re-litigate the first Slater & Gordon proceeding in which the defendant had been unsuccessful. The first Ford proceedings, the fifth Ford proceeding, the sixth Ford proceeding and the VCAT proceeding commenced against SMG were all manifestly hopeless – and became more hopeless upon each further attempt by the defendant to re-litigate his arguments in those cases. Finally, so far as these proceedings are concerned, the claim against VCAT was as hopeless a claim as might reasonably be imagined.
While by some standards, the number of proceedings issued by the defendant in this case is relatively modest, I am satisfied that the institution of these vexatious proceedings meets the requirements of “habitually” and “persistently” under s 21. As was said by Roden J in Attorney-General v Wentworth:[24]
“Habitually” suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when appropriate conditions (whatever they may be) exist; persistently suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness.[25]
[24](1988) 14 NSWLR 481.
[25]Ibid 492. See further, Attorney-General v Lindsey (Unreported, Supreme Court of Victoria, Kellam J (as his Honour then was), 16 July 1998); Attorney-General v Kay [1999] VSC 30 [160] (Eames J); Attorney-General for the State of Victoria v Weston [2004] VSC 314 [20]; and Attorney-General v Shaw [2007] VSC 148 [4] (Hansen J, as his Honour then was).
Further, in Brogden v Attorney-General,[26] a case where the New Zealand Court of Appeal had to consider whether the institution of three proceedings amounted to “persistently” bringing proceedings, the court said:
What constitutes institution of such proceedings “persistently” will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also take into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation solely because of an association with a defendant against whom a prior proceeding has failed.[27]
[26][2001] NZAR 809.
[27]Ibid 814 [21].
This passage is particularly apposite in the present case. Even when one puts the Federal Magistrates’ Court proceedings to one side, one sees in the defendant a litigant who simply will not take no for an answer. As each case is rejected, the allegations become more extravagant. As each case is rejected, an ever widening circle of defendants is engaged – all of this litigation merely being designed to pursue remedies in respect of which the defendant has already been unsuccessful on past occasions.
In answer to the plaintiff’s application in this proceeding, the defendant filed affidavit material and sent letters to the court and to the plaintiff taking issue with the way in which the factual background to the original County Court proceeding was described in the plaintiff’s principal affidavit.[28] No attempt was made by the defendant to grapple with the real issues of the present application. Indeed, the defendant’s position appears to be summarised in his affidavit sworn 29 November 2012:
1. I say that Stephen Lee in his Affidavit in support of the application to declare Grant Jason Skinner as a vexatious litigant under s 21 of the Supreme Court Act 1986 states on page 3, paragraph 8 that, “On 31 March 2000, Mr Skinner purchased from B.S. Stillwell Motor Company Pty Ltd trading as Knox Ford (Knox Ford) a 1999 Ford Falcon AU Cab Chassis, which has been modified by Knox Ford to incorporate a refrigerated unit on the chassis (Ford Vehicle).
2. I say that I will consent to the claim by the Attorney General that I am vexatious as directed in the Affidavit of Stephen Lee when Stephen Lee can produce to me before the May hearing in this matter the registration details from Vic Roads of the 1999 AU Cab Chassis he refers to in his factual section of his affidavit dated 17th August 2012.
3. I say that I also request a copy of the Modification Paper Work from Vic Roads that Stephen Lee refers to in his facts section of his Affidavit in support of declaring Grant Jason Skinner vexatious regarding the attachment of the refrigerated body.
4. I say that when I receive a copy of these two items that are stated as fact by Stephen Lee in support of this vexatious claim before the Supreme Court of Victoria, then I will not waste any more of the courts valuable time and consent to the vexatious claim in this current matter.
[28]The affidavit of Stephen Lee sworn 17 August 2012.
There is nothing in these points. The way in which Mr Lee may have described the underlying facts of the first proceeding is irrelevant to the issues in this application. Further, Mr Lee’s description of the underlying facts of the original dispute (even if accepted to be wrong) provides no answer to the demonstrated vexatiousness of the defendant’s various Victorian proceedings, as shown by the contemporaneous court and tribunal documents constituting such proceedings, to which I have already referred.
While each of the defendant’s Federal Magistrates’ Court proceedings were also vexatious, it is not necessary for me to discuss these cases further. As I have said above, they are not proceedings which can be relied upon in determining whether the conditions of s 21(2) of the Supreme Court Act have been satisfied. It is sufficient in this case to say that the seven Victorian vexatious proceedings I have identified above satisfy the requirements of s 21 of the Supreme Court Act. In my view, the plaintiff has established that the defendant has habitually and persistently and without any reasonable ground instituted vexatious legal proceedings in the County Court and VCAT.
Conclusion
For the reasons given above, the defendant will be declared to be a vexatious litigant. The consequential orders should be as narrow as reasonably practicable to prevent the defendant from commencing proceedings which are an abuse of process. To date, all of the defendant’s proceedings have concerned (directly or indirectly) the purchase of the vehicle in March 2000. There is no evidence of any vexatious proceedings being commenced or continued by the defendant in another field or in respect of different matters. An order restraining the defendant only in respect of commencing or continuing proceedings that refer (directly or indirectly) to his purchase of the vehicle in or about 31 March 2000 will serve the objectives of s 21 of the Supreme Court Act.[29]
[29]See s 21(3)(f) of the Supreme Court Act.
Accordingly, there will be orders pursuant to s 21 of the Supreme Court Act 1986:
(a)Declaring the defendant to be a vexatious litigant; and
(b)Enjoining the defendant without the leave of:
(i)the Court;
(ii)an inferior court; or
(iii)a tribunal constituted or presided over by a person who is an Australian lawyer –
from commencing any legal proceedings arising from, or referring to (directly or indirectly), the circumstances surrounding the purchase on or about 31 March 2000 by the defendant of the Ford motor vehicle referred to in this proceeding.
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