Attorney General v Tareq Altaranesi

[2013] NSWSC 63

Supreme Court

New South Wales

Medium Neutral Citation:	Attorney General v Tareq Altaranesi [2013] NSWSC 63
Hearing dates:	30 & 31 January 2013
Decision date:	15 February 2013
Jurisdiction:	Common Law
Before:	Slattery J
Decision:	Orders made under Vexatious Proceedings Act, s 8.
Catchwords:	PROCEDURE - Vexatious Proceedings Act 2008, ss 6 and 8 - whether proceedings the defendant commenced are "vexatious" - whether proceedings were conducted "frequently" - whether the Court should exercise its discretion to make a s 8(1) order - whether any order made prohibiting defendant from commencing or conducting proceedings should only be for a limited period of time - whether all existing proceedings the defendant has initiated should be stayed.
Cases Cited:	Administrative Decisions Tribunal Appeal Panel v Director General, Department of Commerce and Others [2008] NSWCA 140 AFU v Sydney Local Health District [2012] NSWADT 197 Altaranesi v Administrative Decisions Tribunal [2012] NSWCA 19 Altaranesi v Administrative Decisions Tribunal [2010] NSWCA 378 Altaranesi v Commissioner of Police [2010] NSWADT 252 Altaranesi v Industrial Relations Commission & Anor [2011] NSWCA 278 Altaranesi v Industrial Relations Commissioner of New South Wales [2011] NSWCA 351 Altaranesi v NSW Self Insurance Corporation [2010] NSWADT 217 Altaranesi v NSW Self Insurance Corporation (No. 2) [2011] NSWADT 28 Altaranesi v The Director General of the Department of Health in respect of Sydney South West Area Health Service [2010] NSWIRComm 164 Altaranesi v The Director General of the Department of Health in respect of the Sydney South West Area Health Service as a division of the New South Wales Department of Health [2010] NSWIRComm 1037 Altaranesi v Sydney Local Health District [2012] NSWCA 69 Altaranesi v Sydney South West Area Health Service [2011] NSWADT 43 Altaranesi v Whalan & Ors (2010) 199 A Crim R 110 Attorney General v Chan [2011] NSWSC 1315 Attorney General v Crocker [2010] NSWSC 942 Attorney General v Shaw [2004] WASC 280 Attorney General v Wentworth (1988) 14 NSWLR 481 Attorney General v Wilson [2010] NSWSC 1008 Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256 Brogden v Attorney General [2001] NZCA 208 Health Care Complaints Commission v Karalasingham [2007] NSWCA 267 Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 KT v Commissioner of Police, NSW Police Force (GD) [2010] NSWADTAP 39 KT v Sydney Local Health District [2012] NSWADTAP 23 KT v Sydney Local Health District (formerly Sydney Local Health Network) (No. 3) (Amount of Respondent's Costs) [2011] NSWADTAP 49 KT v Sydney Local Health Network [2011] NSWADT 171 KT v Sydney Local Health Network [2011] NSWADT 292 KT v Sydney Local Health District (formerly Sydney South West Area Health Service) (No. 2) (Costs) [2011] NSWADTAP 42 KT v Sydney Local Health Network (formerly South West Area Health Service) (No. 2) (GD) [2011] NSWADTAP 8 KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60 KT v Sydney South West Area Health Service [2010] NSWADT 94 KT v Sydney South West Area Health Service [2010] NSWADT 102 KT v Sydney South West Area Health Service [2010] NSWADT 131 KT v Sydney South West Area Health Service [2010] NSWADT 227 Legal Employment Consulting and Training Pty Ltd v Patterson [2010] NSWSC 130 Legal Employment Consulting and Training Pty Ltd v Patterson [2009] NSWDC 357. Official Trustee in Bankruptcy v Gargan (No. 2) [2009] FCA 398 Pascoe v Liprini [2011] NSWSC 1484 Pasupati v Okill [2011] NSWSC 1383 Tareq Altaranesi v Administrative Decisions Tribunal & Anor [2012] HCASL 126 Tareq Altaranesi v Administrative Decisions Tribunal & Anor [2012] HCASL 129 Vice-Chancellor Macquarie University v FM [2005] NSWCA 192
Category:	Principal judgment
Parties:	Plaintiff:- Attorney General in and for the State of New South Wales Defendant:- Tareq Altaranesi
Representation:	Counsel: Plaintiff:- H. Younan Solicitors: Plaintiff:- I V Knight, Crown Solicitor Defendant:- in person
File Number(s):	12/126206

Judgment

1. Prior to March 2008 the defendant, Mr Tareq Altaranesi, had no contact with Australian courts or litigation. But after an incident with a workplace colleague in Sydney on 27 March 2008, he commenced a number of actions in New South Wales tribunals and courts. These actions attempted to remedy what he perceived were injustices arising out of: (1) the original March 2008 incident, and (2) various State public authorities' management of the incident's aftermath. Between December 2008 and April 2012, a period of 3 and one third years, he launched some 37 separate applications in different courts and tribunals against a variety of defendants.

1. The Attorney General of New South Wales ("the Attorney") now seeks to stop Mr Altaranesi from commencing any more proceedings in this State without Court leave. In this matter the Attorney claims orders under Vexatious Proceedings Act 2008, s 8: to prohibit Mr Altaranesi from instituting any further proceedings in New South Wales without the leave of the Court; and to (2) stay all current proceedings Mr Altaranesi is conducting in New South Wales. In a hearing over some two days, on 30 and 31 January 2013, Mr Altaranesi resisted this relief. Mr Altaranesi adduced evidence and put submissions in his defence. But in the end he was unsuccessful. The Court has decided for the reasons set out in this judgment that the relief the Attorney seeks should be granted, but with modifications.

1. The Court has little doubt that Mr Altaranesi perceives he suffered injustices in and consequent upon the workplace incident in which he was involved in March 2008. But he has reacted to those perceived injustices and to the original incident with a campaign of litigation that has run out of control. In the interests of justice, his capacity to use the court system in this way must be constrained. The orders which the Attorney seeks are close to an appropriately balanced constraint: not entirely denying Mr Altaranesi his rights of access to the courts, but which ensure that he confines his future energies to legal proceedings which only have a proper basis. But I have reached the view that the claimed relief should be remoulded to suit Mr Altaranesi's particular circumstances to allow certain AVO proceedings he has brought in response to a neighbour's AVO to continue.

1. The Court's reasons for drawing these conclusions commence with a short statement of the applicable law.

Applicable Legal Principles

1. All Mr Altaranesi's conduct in commencing allegedly vexatious proceedings took place after the commencement of the Vexatious Proceedings Act ("the Act") on 1 December 2008. This case does not raise any issue about whether when making an order the Court may take into account conduct occurring prior to the commencement of the Act: see for example Attorney General v Chan [2011] NSWSC 1315 at [42], [43] and [44] per Adamson J.

1. The Act, s 8 authorises the Court to make orders in relation to a person, if the Court is satisfied, that the person has frequently instituted or conducted vexatious proceedings in Australia. The section relevantly provides:-

"8 Making of vexatious proceedings order

(1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that:

(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or

(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.

(2) For the purposes of subsection (1), an authorised court may have regard to:

(a) proceedings instituted or conducted in any Australian court or tribunal (including proceedings instituted or conducted before the commencement of this section), and

(b) orders made by any Australian court or tribunal (including orders made before the commencement of this section).

(3) An authorised court must not make a vexatious proceedings order in relation to a person without hearing the person or giving the person an opportunity of being heard.

(4) Orders may be made on court's own motion or on application An authorised court may make a vexatious proceedings order of its own motion or on the application of any of the following persons:

(a) the Attorney General,

(b) the Solicitor General,

(c) the appropriate registrar for the court,

(d) a person against or in relation to whom another person has instituted or conducted vexatious proceedings,

(e) a person who, in the opinion of the court, has a sufficient interest in the matter.

...

(7) Orders that may be made by Supreme Court 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.

..."

1. It is at least implicit in the Act, s 3 that the Supreme Court of New South Wales is an "authorised Court" empowered to make s 8 orders. The Attorney's claimed relief is structured around the forms of available relief described in the Act, s 8(7)(a) and (b): stay orders for existing proceedings and orders prohibiting the institution of further proceedings. The Court's power to make a s 8 order is discretionary: the Court "may make an order" under the section. Before exercising this statutory discretion the Court must be relevantly satisfied, under s 8(1), of three elements, namely that (1) the person has "instituted or conducted", (2) "vexatious proceedings", and (3) has done so "frequently". In this case it is not in dispute that all the proceedings the Attorney relies upon in his case were conducted "in Australia". The law in relation to each of these elements has developed by judicial exegesis of this legislation.

1. To "institute" proceedings has a broad meaning under the Act. It covers both civil and criminal proceedings and proceedings before courts and tribunals. The term to "institute" proceedings is defined in the Act, s 5:-

"5 Instituting proceedings

(1) In this Act, institute, in relation to proceedings, includes:

(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.

(2) A reference in this Act to instituting proceedings includes a reference to instituting:

(a) proceedings generally, and

(b) proceedings in relation to a particular matter, and

(c) proceedings against or in relation to a particular person, and

(d) proceedings in a particular court or tribunal."

1. The concept of "conducting" proceedings needs no separate explanation. It covers every step a party may take to further existing litigation.

1. The defendant argued that s 5(2) has a special meaning. He contended that the words "particular matter" and "particular person" and "particular court or tribunal" in the sub-section mean that the relevant "proceedings" can only qualify as being "vexatious proceedings", if they are frequently brought in the same court against the same person in respect of the same matter. As will be explained below, that is not what s 5(2) means in its statutory context.

1. Each of the two components of "vexatious proceedings" requires separate analysis. First, the term "proceedings" is defined inclusively in the Act, s 4 in the following way:-

"4 Meaning of 'proceedings'

In this Act, proceedings includes:

(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."

1. Importantly "proceedings" under the Act includes all interlocutory and appellate action taken in connection with existing proceedings: s 4(b). Thus the Act counts an interlocutory application or an appeal as separate "proceedings". In ordinary language an appeal or an interlocutory application would not readily be described as separate proceedings. But it is defined this way in the Act. This difference led to some debate between the parties about the numbers of proceedings that Mr Altaranesi had actually commenced. But this was just an issue of classification and did not ultimately make any difference to the substance of the matters for consideration.

1. This extended definition of "proceedings" means that the Court can have regard to baseless interlocutory applications or appeals in deciding whether to make a s 8 order: Attorney General v Wilson [2010] NSWSC 1008 ("Wilson") at [15]. The scope of what the Court may take into account within "proceedings" is wide. It includes repeated oral applications with no proper basis, and it includes the manner in which the person speaks or acts in the courtroom: Wilson at [16].

1. The Act separately defines which types of "proceedings" will qualify as "vexatious proceedings". This is provided for in the Act, s 6:-

"6. Meaning of "vexatious proceedings

In this Act, vexatious proceedings includes:

(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."

1. In the present matter the plaintiff relies upon each one of these paragraphs of the inclusive definition.

1. The Court may decide whether or not a proceeding is "vexatious" by having regard to the findings and result in the proceedings under consideration: Wilson at [22]. And, the Court may have regard to the way the person has conducted himself or herself in the proceedings before the Court, including the way the defence is conducted in answer to the very proceedings for orders under the Act, s 8: Official Trustee in Bankruptcy v Gargan (No. 2) [2009] FCA 398 ("Gargan (No. 2)") at [12], per Perram J. At the opening of the present proceedings the Court reminded Mr Altaranesi of this part of the law, so he might be mindful of it before choosing to put any submissions or adduce any evidence in his defence. The Court has taken into account the manner in which he conducted his defence to these proceedings. This sometimes worked in his favour and sometimes against him.

1. The categories of vexatious proceedings provided for under the Act, s 6(a) to (d) are linked. Because of the linkage between them it is convenient to consider together paragraphs 6(a) "abuse of process" and paragraphs 6(c) "without reasonable ground". Proceedings may constitute an abuse of process regardless of the personal intention motive or state of mind of the litigant: Attorney General v Shaw [2004] WASC 280 ("Shaw") at [22].

1. What amounts to an abuse of process is insusceptible to a formulation comprised of closed categories: Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27 ("Batistatos") at [9]. But an abuse of process can be defined inclusively. The concept includes: the pursuit of proceedings that have no prospects of success or no real prospect of resulting in a remedy of substance but which involve: (1) unjustifiable expense or use of judicial resources, Attorney General v Crocker [2010] NSWSC 942 ("Crocker") at [17], per Fullerton J; (2) the pursuit of concurrent proceedings for substantially the same relief, or the pursuit of fresh proceedings after a remedial defeat in previous proceedings (Crocker at [17]); (3) the determination to persist in futile appeals in the face of repeated judicial observations that arguments were doomed to failure (Crocker at [133]); and, (4) causing others to incur legal costs in responding to hopeless applications in circumstances where the defendant has disregarded cost orders already made against him (Crocker at [134]).

1. The Act's, s 6(c) definition of "vexatious proceedings" as proceedings "without reasonable ground" is gauged objectively, and not from the perspective of the litigant said to be vexatious. This approach protects courts from litigants who genuinely but misguidedly are persuaded as to the correctness of their own conduct: Gargan (No. 2) at [9]. One form of want of reasonable grounds is a failure or refusal on the part of the instituter of proceedings to understand the principles of finality of litigation: Gargan (No. 2) at [7]. Thus, proceedings that lack reasonable grounds may also constitute an abuse of process. It will often be the case that proceedings with no prospect of success, or with no real prospect of remedy of substance will also be brought without reasonable grounds. As Adamson J explained in Pascoe v Liprini [2011] NSWSC 1484 ("Liprini") at [10], sub-paragraphs 6(b), (c) and (d) of the Act are not discrete categories, separate from s 6(a), because each of sub-paragraphs (b) - (d) "could properly be regarded as an abuse of process of a court or tribunal".

1. Paragraphs 6(b) and (d) of the Act also represent related categories. They refer to the same underlying conduct "to harass or annoy, cause delay or detriment". Paragraph 6(b) refers to the actor's subjective intentions, whereas sub-paragraph 6(d) does not; rather paragraph 6(d) is concerned with the effect and consequences of action rather than the motive or design for action: Liprini at [10]. Thus, the Court does not have to determine whether or not a defendant has a subjective intention to "harass or annoy, to cause delay or detriment" by proceedings: only that this is the consequence of the defendant's litigious conduct.

1. To enliven the Court's s 8(1) discretion the alleged vexatious proceedings must also be instituted or conducted "frequently". In Wilson at [13] - [14] Davies J adopted the approach of the New Zealand Court of Appeal in Brogden v Attorney General [2001] NZCA 208 ("Brogden") to assessing whether or not allegedly vexatious proceedings are brought "frequently". The New Zealand Court of Appeal in Brogden (at 201) stated :

"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."

1. It is no longer necessary for the Attorney to prove that a litigant has "persisted" in vexatious litigation before an order may be made under the Act; contrasting with the repealed equivalent provision in Supreme Court Act, s 84. But the passage in Brogden reminds that concepts such as "frequently" in the Act must be measured by more than just counting of the number of actions brought.

1. The term "frequently" has been described as "a relative term" which must be looked at in the context of the litigation being considered: Gargan (No. 2) at [7]. But considering comparative frequency in other cases where Vexatious Proceedings Act orders have been made can be useful. Examples of the institution of vexatious proceedings recurring sufficiently often to qualify as occurring "frequently" are: (1) the institution of proceedings on a monthly basis over ten years totalling 124 proceedings (Crocker at [136]); and, (2) instituting 14 separate Supreme Court actions in eleven years can be "frequently", given that most people in the community never institute proceedings (Wilson at [46]).

1. The exercise of the Court's s 8(1) discretion here raises special considerations. The purpose of making orders under the Act is not to punish but to protect both the public and the Court itself from vexatious proceedings, especially because the Court's "limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits": Gargan (No. 2) at [3]. Once the Act's s 8 discretion is enlivened the relevant considerations are unconfined but the relevant factors will be informed by the protective purpose which the order serves: Gargan (No. 2) at [12].

1. One relevant consideration deserves special mention here. A litigant's demonstration of insight into the litigant's previous litigious history will be relevant in the exercise of the Court's discretion. Such insight may indicate a diminution in the risk posed to the public and may throw light on whether the commencement of further vexatious proceedings by the litigant is likely: Gargan (No. 2) at [12].

1. Finally a relevant consideration in every case where a s 8(1) order is sought under the Act is the consideration that it is a serious matter to deprive a litigant of access to the courts: Wilson at [11]. If an order is made it may need to be moulded to give proper weight to this consideration; a power that the Act confers on the Court under s 8(7)(c).

Mr Altaranesi's Litigation History 2008 - 2012

1. The Attorney's case seeks to establish that 31 of the 37 proceedings that it is claimed Mr Altaranesi commenced between December 2008 and April 2012 are "vexatious proceedings" within s 6 of the Act. Mr Altaranesi does not concede that any of the 31 proceedings were "vexatious proceedings". Thus this matter became a contest about each of these proceedings. Some review is required of each one, to determine with how many "vexatious proceedings" the Court is really dealing. And for this a case by case analysis is required to determine the threshold elements: whether or not the defendant has "instituted and conducted" any "vexatious proceedings", and whether he has done so "frequently".

1. The review of each one of these various proceedings focuses upon a number of matters: (1) the nature of Mr Altaranesi's claim and/or conduct; (2) the judicial pronouncements at the time the proceedings were dismissed; (3) Mr Altaranesi's attitude or perceived attitude to the rules of court by which he was bound as a litigant in conducting those proceedings; and (4) Mr Altaranesi's attitude or perceived attitude to his obligations to pay costs as an unsuccessful litigant: Crocker at [24].

1. The analysis proceeded in an evidentiary framework constructed by the Attorney, who adduced material (as Exhibits SLO1 and DH1) through the affidavits of the Attorney's principal witnesses, the solicitors, Ms Sharon Ohnesorge and Ms Daniella Hartman. The judgments and the legal process in these 37 proceedings were searched out by these two solicitors, who respectively had the care, conduct and carriage of the matter on behalf of the Crown Solicitor from time to time. Although aspects of their evidence was contested, I accept that they located all of the judgments they could in respect of proceedings to which Mr Altaranesi was a party. Although it was left open that there may be other proceedings to which Mr Altaranesi was a party, this list of 37 was the number of proceedings upon which the Attorney relied. This list, identified by the tab numbers from Exhibit SLO1 (and DH1 where indicated) is attached to these reasons. From time to time for convenience in these reasons some of these judgments are referred to by their SLO1 tab number (and DH-1 tab number where indicated) rather than by their full title. The schedule at the end of these reasons provides a convenient cross-reference between the full published title of each judgment and its SLO1 tab number.

1. This section of these reasons now covers that litigation history, with focus on the identified matters in respect of each proceeding. Once that review is complete the Court considers the exercise of the s 8(1) discretion, based on the observations made in the course of the review. The Court takes into account not only the analysis of each case but also Mr Altaranesi's conduct of the proceedings as a whole.

1. Arabic, not English, is Mr Altaranesi's first language. Despite this his English syntax and grammar are of a high order. Yet he needed an interpreter in Court, mainly because his accent and pronunciation of English was so influenced by his first language that it was often difficult for the Court to understand him. An interpreter had been arranged for him, who mostly interpreted his evidence and submissions from Arabic into English. But Mr Altaranesi's English was of a sufficiently high order that he would often attempt to put submissions and answer questions directly in English and not through the interpreter. This was successful for limited periods, but mostly the interchanges with the Court reverted to Mr Altaranesi speaking in Arabic through the interpreter. The Court is confident that through a combination of these techniques Mr Altaranesi was able to convey all the nuances of the legal ideas that he wished to present to the Court.

An Incident Between Work Colleagues

1. Mr Altaranesi has a degree in accounting from Cairo University, in Eqypt. His interchanges with the Court make clear that he is a man of considerable intelligence. He emigrated from Egypt to Australia in 2000. He was apparently unable readily to obtain work in a white-collar position utilising his accountancy skills in this country. He commenced work as a cleaner with the Sydney South West Area Health Service ("the Area Health Service") working in its Environmental Services Department. He was employed by the Area Health Service from at least 2004. The early years of his employment with the Area Health Service were uneventful: he made a number of workers compensation claims. None of them resulted in litigation. On 27 March 2008 an incident, the details of which are not relevant for the matters now in issue, took place between Mr Altaranesi and a female work colleague, outside the workplace. And another incident occurred between the two took place on 28 March 2008. There appears to have been some underlying tension in Mr Altaranesi's workplace, partly because he, as a matter of personal principle, refused to become a member of a union. Other persons working around him, had different views about union membership and including the work colleague with whom the incident took place, were members of unions operating in that workplace.

1. The incidents on 27 and 28 March 2008 between Mr Altaranesi and his work colleague were referred to management at the Area Health Service. Mr Altaranesi took some time off work after the incidents and lodged complaints. He also lodged a claim in the New South Wales Industrial Relations Commission ("IRC") alleging he had been victimised and had not been paid two days' wages. Mr Altaranesi discontinued these proceedings upon terms that the Area Health Service give him a written apology, which it did. This settlement seemed in the short term to provide a satisfactory result between Mr Altaranesi and his work colleague.

1. But the settlement failed soon after Mr Altaranesi returned to work in late July 2008. Management directed both Mr Altaranesi and his work colleague to avoid one another in the workplaces of the Area Health Service. Within days of his return, on 30 July 2008, a violent incident took place between Mr Altaranesi and the husband of the female work colleague with whom he had been in conflict. Police charged the work colleague's husband with assault occasioning actually bodily harm under Crimes Act, s 59. When those charges were heard the Magistrate dismissed them on the basis that the work colleague's husband had acted in self defence. At the conclusion of the hearing on the charges of assault occasioning actually bodily harm the Magistrate made orders granting an apprehended violence order ("AVO") under Crimes (Domestic and Personal Violence) Act 2007 (NSW), s 19, restraining Mr Altaranesi's work colleague's husband from any further contact with Mr Altaranesi.

1. But the AVO orders were not just one way. In August 2008 Mr Altaranesi's work colleague obtained an interim AVO against him; although, on review in 2009, the interim AVO was dismissed. But this violent out of work altercation led to Mr Altaranesi's dismissal. The Area Health Service terminated his employment on 19 January 2009 on the basis that the altercation in July 2008 had breached the Area Health Service's code of conduct that applied to Mr Altaranesi. Since January 2009 Mr Altaranesi has been unemployed. Senior management of the Area Health Service who were involved in Mr Altaranesi's dismissal became targets of his later litigation, in particular, the Area Health Service HR Manager, Ms Jackie Mills and the Area Health Service's Acting Director of Corporate Services, Mr Chris Leahy.

1. These work place incidents became a connecting theme of a web of litigation that Mr Altaranesi originated. For more convenient analysis the Attorney's case divides all the litigation into five categories. This classification works readily, Mr Altaranesi did not suggest a better one, and so the Court adopts it in these reasons. Mr Altaranesi commenced the following litigation:

(a) Unfair dismissal proceedings: Mr Altaranesi sought unfair dismissal claims in the New South Wales IRC to remedy his dismissal by the Area Health Service. The IRC action resulted in his commencing satellite litigation in the New South Wales District Court and the New South Wales Court of Appeal;

(b) Private criminal proceedings: Mr Altaranesi commenced a private criminal prosecution against a number of the Area Health Service employees in the Local Court which were dealt with by a Magistrate, but which resulted in one appeal into the Supreme Court;

(c) The privacy proceedings: the largest single grouping of proceedings Mr Altaranesi initiated (some 25 overall), were actions that he brought, mainly in the Administrative Decision Tribunal ("ADT"), claiming his privacy was breached by the Area Health Service; and, whether at first incidence or on appeal, all of these proceedings were dismissed;

(d) The FOI proceedings: Mr Altaranesi claimed access under the Freedom Of Information Act 1989, and successor legislation to information relating to his workers compensation claims against the Area Health Service and in relation to the assault charges; which proceedings had some limited measure of success, but many of which failed and are claimed to be vexatious; and

(e) The allegations of bias: in a mixture of the claims which Mr Altaranesi has brought he has alleged that the judicial officer determining the matter was biased; either by direct application for the disqualification of the judicial officer in question, or in an appeal process; none of these applications were successful.

1. Apart from his first matter before the IRC, Mr Altaranesi was self represented throughout all this litigation. It was evident from the way that he presented his case through oral and written submissions to the Court that Mr Altaranesi has well acquainted himself with many forms of legal procedure, with the courtesies of the court room, with the citation of authority and the need for reference to relevant legislation. He generally shows a degree of confidence within the courtroom commensurate with his tertiary education and high natural intelligence. But as the more detailed analysis below shows his mastery of technical procedures is not balanced with any sense of proportion or restraint in the deployment of those procedures. This is evident within each of the five categories of his litigation under analysis.

1. These five categories account for all of the 37 proceedings upon which the Attorney relies. The Attorney concedes that six of the 37 were not vexatious proceedings. The Attorney concedes that Mr Altaranesi's position in the other three conceded proceedings were arguable. The six are identified in the course of the analysis below. The Court has found below that a small number of the other 31 proceedings were not "vexatious proceedings". But most of them are.

(a)Unfair Dismissal Proceedings

1. Mr Altaranesi challenged the Area Health Service's dismissal of him on 19 January 2009 from his position as Hospital Assistant Grade 2 at the Royal Prince Alfred Hospital. Mr Altaranesi commenced proceedings for unfair dismissal in the IRC. Those proceedings were ultimately settled by conciliation with the Area Health Service agreeing to pay an undisclosed sum of money to him and to provide him with a Statement of Service and a Statement of Regret.

1. In summary the unfair dismissal proceedings were the following. After settlement of his initial IRC claim Mr Altaranesi applied to the IRC for a further hearing. He claimed that the Area Health Service had not fulfilled its side of the terms of settlement. This application was dismissed. He then sought leave to appeal from the decision of the IRC but this was refused. His disquiet at this refusal then led to appeals to the District Court and to the New South Wales Court of Appeal. All of these claims were unsuccessful, as the more detailed account of these proceedings in this section shows.

1. The first unfair dismissal matter was Mr Altaranesi's attempt to enforce the terms of settlement in his original unfair dismissal claim: Tareq Altaranesi v The Director General of the Department of Health in respect of the Sydney South West Area Health Service as a division of the New South Wales Department of Health [2010] NSWIRComm 1037 [Tab 1]. After the original proceedings were filed in December 2008 they were given directions on various occasions throughout 2009 and early 2010 and set down for hearing on 1 June 2010. A settlement was reached that same day which involved the payment of a sum of money and discontinuance of the proceedings and the provision of the Statement of Service and Statement of Regret by 15 June 2010. The notice of discontinuance was filed, the money was paid by cheque and the date, 15 June 2010 passed. But on 22 June 2010 Mr Altaranesi applied to the Tribunal, to use his own words, "to refresh the case", as the Area Health Service had failed to produce a Statement of Regret and a Statement of Service which "meet my requirement as agreed".

1. Although Mr Altaranesi had been represented by counsel at the original hearing of this matter (the only occasion where he was represented by counsel) his application now to re-list the matter was initiated on his own. By the time of the re-listing it became evident that Mr Altaranesi had received the cheque (and had not returned it), a Statement of Regret, and a Statement of Service. Of the latter two the Commissioner recorded Mr Altaranesi's submissions that "he does not agree with those two documents as they are not expressed in terms that he wishes": at [23]. But the Commissioner dismissed the application on the basis that "the terms of settlement did not require that Mr Altaranesi had to agree to the wording of either the Statement of Service or the Statement of Regret": at [24].

1. In my view Mr Altaranesi brought this proceeding "without reasonable ground". It is self evident from the Commissioner's reasons that Mr Altaranesi had no right to control the drafting of the Statement of Regret or the Statement of Service and that he had no right to complain about them once he had received them. In my view these were "vexatious proceedings", at least within the meaning of s 6(c) of the Act.

1. Mr Altaranesi was not satisfied with this decision. On 22 June 2010 (the same day as Commissioner Bishop's decision - although her reasons were published later) he sought leave from the Full Court of the IRC to appeal from her decision. His application for leave to appeal was heard on 11 November 2010 and dismissed on 9 December 2010: Tareq Altaranesi v The Director General of the Department of Health in respect of Sydney South West Area Health Service [2010] NSWIRComm 164 [Tab 2].

1. The Full Bench's dismissal contained a comprehensive statement of the lack of merit in Mr Altaranesi's application for leave. Mr Altaranesi argued that he had not been provided with an interpreter, was denied natural justice and that "the Statement of Regret provided to [him]...was not acceptable". None of these grounds had merit. At the hearing before Commissioner Bishop Mr Altaranesi had faltered a little in his English and the Commissioner enquired of his capacity to proceed, to which he had responded "Sorry, my English is not good, but I try, OK?" and then elected to go ahead and give evidence. On the application for leave the Full Bench of the Commission was satisfied that "the transcript does not support there was any breach of the natural justice principles in the conduct of the hearing".

1. Then the Full Bench summarised Mr Altaranesi's difficulties in their reasons. They described his appeal as "no more than a challenge to a decision with which the appellant does not agree. It turns on particular facts. Further it has no wider application than to the interest of the parties. No new principle or matter that has not already been the subject of substantial jurisprudence is raised. There is no arguable claim the Commissioner has fallen into error. Accordingly the matter does not warrant a grant of leave". This was hardly surprising. The legislation controlling the grant of leave to appeal informs the Full Bench's discretion to grant leave with the wording that "the matter [for which leave is sought] is of such importance that, in the public interest, leave should be granted": Industrial Relations Act 1996, s 188.

1. The Full Bench's reasons make clear that this appeal too was brought without reasonable ground. In my view it was a "vexatious proceeding" within s 6(c) of the Act.

1. Yet Mr Altaranesi was still unsatisfied. Despite two hearings, one before Commissioner Bishop, and another before the Full Bench, he took the matter to the New South Wales Court of Appeal. On 3 May 2011 he filed a Summons in the New South Wales Court of Appeal seeking judicial review of the decision of the IRC Full Bench. After a hearing on 9 September 2011 the Court of Appeal dismissed his application with costs on 18 November 2011: Altaranesi v Industrial Relations Commissioner of New South Wales [2011] NSWCA 351. The principal judgment of the Court of Appeal given by Campbell JA, with which Whealey JA and Meagher JA, agreed, and which dismissed all of Mr Altaranesi's claims.

1. The relief Mr Altaranesi claimed in the Court of Appeal showed how little of the preceding events in the IRC he was prepared to accept. He claimed relief to: (1) "set aside the decision of full bench of the Industrial Relation (sic)"; and (2) "cease the agreement made on 1 June 2008, and return money remedy to the respondent (sic)"; and (3) "review the matter of unfair dismissal 2010/2152 Industrial Relations Commission, and fresh procedure in Court of Appeal and if it is not practicable, is to be in District Court (sic)". The application also sought costs.

1. The Court of Appeal found no merit in the application. The Court answered Mr Altaranesi's various contentions that he could withdraw from, and was not bound by, the settlement of the proceedings, with the conclusion "all those arguments fail" (at [44]). The Court of Appeal also rejected a submission that the High Court's decision in Kirk v Industrial Relations Commission (NSW) (2010) 239 CLR 531 [2010] HCA 1 implied that the IRC Full Bench has an unremovable jurisdiction to supervise the activities of the IRC Commissioners. The Court of Appeal's response to that was "that submission cannot succeed": at [78].

1. Mr Altaranesi also claimed in the Court of Appeal that Commissioner Bishop was biased. He submitted that Commissioner Bishop's alleged bias, as he had explained to the Full Bench, was because of "pre-intention for not providing an interpreter for me (sic)" and that Commissioner Bishop coerced him into facing cross-examination. The Court of Appeal dealt with that submission in this way: "there is no scrap of evidence that supports the contention that the failure to provide an interpreter was a course deliberately decided upon by the Commissioner. Nor does the transcript of the hearing on 1 June 2010 in any way bear out that the Commissioner coerced the applicant into facing cross-examination": at [94] and [95].

1. The Court of Appeal dismissed of all Mr Altaranesi's contentions. But one of them, which involves him misreading of legislation, is typical of Mr Altaranesi's conduct in these proceedings. Mr Altaranesi pointed to Industrial Relations Act, s 166 and submitted that he was not entitled to have his own lawyer representing him in the conciliation because "he (Mr Altaranesi) did not give leave to the Commissioner for that to happen". But the Court of Appeal pointed out that this submission misreads s 166(2), which provides as follows:-

"166 Representation of parties

(1) A party to proceedings before the Commission may appear personally or be represented by an Australian legal practitioner or by an agent who is not such a practitioner.

(2) However, a party is not entitled to be represented in conciliation proceedings or in proceedings under Part 7 (Public sector promotion and disciplinary appeals) of Chapter 2 by a person who is an Australian legal practitioner or an agent who is an industrial agent without the leave of the Commission.

(2A) Despite subsections (1) and (2), a party to proceedings referred to in section 100H is not entitled to be represented by an Australian legal practitioner or by an agent who is not a practitioner.

(3) The leave of the Commission is not required if the Australian legal practitioner represents an industrial organisation (or any of its members) and is an officer or employee of the organisation.

(4) The leave of the Commission is also not required if the Australian legal practitioner represents a State peak council and is an officer or employee of the State peak council.

(5) The Commission may allow any party appearing before it the services of an interpreter."

1. The Court of Appeal pointed out in response to Mr Altaranesi's submissions on this subject that it is "the Commission who must give leave for a legal practitioner to appear before it in a conciliation. In the present case, where both parties were represented by lawyers on 1 June 2012, the Commissioner should be taken to have implicitly given leave for the lawyers to appear, by allowing them to take a role in the proceedings". Here the Court of Appeal put a check on Mr Altaranesi's enthusiasm for the strained construction of legislation. Mr Altaranesi demonstrated the same tendency elsewhere in these proceedings: and one arming Mr Altaranesi's indiscriminate litigation with an especially destructive potency. He is quite prepared to occupy the Court's time with untenable argument about the meaning of legislation.

1. In my view this application to the Court of Appeal was brought without reasonable ground and was a "vexatious proceedings" within the meaning of s 6(c) of the Act.

1. But this was not Mr Altaranesi's first step in the Court of Appeal about unfair dismissal. Before he made his application for leave to appeal, determined in September 2011, he had on 7 February 2011 mistakenly filed a Notice of Appeal as of right. Mr Altaranesi's Notice of Appeal was referred to Handley AJA, sitting as the Court of Appeal, who determined "the proceedings are incompetent and clearly so, and I will order that the appeal will be dismissed as incompetent and that the appellant pay the respondent's costs of the appeal to date": Altaranesi v Industrial Relations Commission & Anor [2011] NSWCA 278 [Tab 4]. In my view this matter was also "vexatious proceedings" under s 6 of the Act. In substance it was an attempt by a wrong procedure to litigate the matters which were later dismissed by the Court of Appeal in September the same year. Moreover, it was vexatious because Mr Altaranesi chose a form of process which had no prospect whatsoever of affording him any remedy. It was in my view "without reasonable grounds" and was an "abuse of process". This small proceeding is emblematic of another theme in Mr Altaranesi's litigious activity: over-confidence in his own understanding of the law, which allows him to commence incompetent proceedings in unfamiliar jurisdictions.

1. That too was the problem that the last of the unfair dismissal proceedings which Mr Altaranesi commenced on 22 March 2012, following upon Handley AJA's cost orders made on 18 April 2011. Mr Altaranesi's dissatisfaction with those orders led him into an incompetent application in the District Court.

1. The background to Mr Altaranesi's District Court proceedings may be shortly stated. When Handley AJA dismissed the appeal, Mr Altaranesi had brought as of right, he ordered Mr Altaranesi to pay the Area Health Service's costs. Then the Area Health Service applied for the assessment of party-party costs, which was referred to a cost assessor on 15 December 2011. This referral resulted in detailed cost submissions and the issue of a costs assessment on 2 February 2012 in the sum of $3,640, which was in turn sent to the parties on 23 February 2012. On 22 March 2012 Mr Altaranesi filed a Summons in the District Court, seeking leave to appeal against the assessment.

1. Gibson DCJ, found that the District Court was without jurisdiction to hear Mr Altaranesi's appeal: at [24]. Her Honour found that the application for leave must be made to the Court which made the costs order, in this case the Court of Appeal: see for example Legal Employment Consulting and Training Pty Ltd v Patterson [2010] NSWSC 130, Pasupati v Okill [2011] NSWSC 1383 and Legal Employment Consulting and Training Pty Ltd v Patterson [2009] NSWDC 357. But given the terms of Legal Profession Act 2004, ss 384 and 385, which on their face could be read even by experienced practitioners as suggesting that an appeal should be brought to the District Court, I am not prepared to find that the wrong choice of jurisdiction on its own makes the District Court action "vexatious proceedings". In this particular respect, they were not proceedings "without reasonable grounds".

1. But the other points Mr Altaranesi took in the course of the District Court proceedings do make it "vexatious proceedings" within s 6 of the Act. Rather than requiring Mr Altaranesi to bring further proceedings in the Court of Appeal, Gibson DCJ took the practical course of considering his application as if it had been heard under Legal Profession Act, ss 384 and 385 and that he was seeking leave to appeal under Legal Profession Act, s 385. But even considering that broader focus the proceedings were without merit. Legal Profession Act, s 384(1) allows appeals against the decisions of cost assessors "as to a matter of law". And s 385 allows a party to an application for a cost assessment to "seek leave...to appeal...against the determination of the application made by the cost assessor", Legal Profession Act, s 385(2).

1. But the lack of merit of Mr Altaranesi's claims on either of these bases was demonstrable: Mr Altaranesi sought to adduce material about the high quantum of counsel's fees which was not before the cost assessor, but which merely raised questions "of fact, not law" (at [27]); a claim of personal financial hardship was not supported by any evidence as to Mr Altaranesi's financial circumstances (at [34]); Mr Altaranesi's case about the barrister for the Area Health Service overcharging, was described as "a series of assertions based upon the plaintiff's idiosyncratic views as to the amounts the barristers should be permitted to charge. These views are unrealistic" (at [34]); a claim that the cost assessor demonstrated actual bias in part because he had an office in the same building as the counsel whose bill was the subject of the cost assessment was described as "fanciful", and one "which should be rejected" (at [28]); the claim that the cost assessor did not afford Mr Altaranesi procedural fairness was found to be "not made out" (at [28]); and, the plaintiff's claim that the barristers' fees were "uncertain" was also "not made out" (at [28]).

1. These District Court proceedings had many of the features of vexatious proceedings: Mr Altaranesi refused to accept the finality of the costs order that Handley AJA had made against him; and, Mr Altaranesi was prepared to make allegations unsupported by evidence, but only underpinned by his own conviction as to their correctness.

(b) Private Criminal Proceedings

1. Mr Altaranesi commenced a private criminal prosecution against several of his former co-workers at the Area Health Service on 12 May 2009. The matter was brought in the Sutherland Local Court where on 15 July 2009 Magistrate Schurr heard Mr Altaranesi's application to attempt to amend the originating process. The Magistrate dismissed his private criminal prosecution on the defendant's application, on the basis that the process was invalid on the grounds of duplicity and because it was in breach of the Criminal Procedure Act 1986, s 175 and the Local Courts (Criminal and Applications Procedure) Rules 2003, cl 17. Mr Altaranesi was ordered to pay the defendant's costs of the proceedings in the sum of $2,000.

1. Mr Altaranesi commenced the proceedings in the Supreme Court of New South Wales by Summons on 7 August 2009, seeking an order to set aside the Magistrate's decision dismissing his criminal process. Harrison J heard the matter in February 2010, giving a judgment which found Mr Altaranesi's criminal process to be embarrassing and "incapable of being maintained and supported in its present form". Although his Honour allowed the plaintiff an opportunity to amend to correct the defect, his Honour required dismissal of the proceedings in default of Mr Altaranesi serving a draft amended application: Altaranesi v Whalan & Ors [2010] NSWSC 149; (2010) 199 A Crim R 110 [at 5] and see especially [47] , [60], and [63].

1. Harrison J found that there were extensive defects in this criminal process (see [40] - [44]): a lack of a clear relationship between the allegations made and the individual defendants joined to the process, the lack of an obvious connection between the allegations of fact and the legislation relied upon, uncertainty as to whether the same facts are alleged to give rise to more than one offence, and whether there was indeed an intention to charge two offences against particular individuals. It is unclear on the evidence whether Mr Altaranesi filed an amended application pursuant to the relief Harrison J granted.

1. The Attorney does not allege that these proceedings are vexatious. Their result did not automatically put an end to Mr Altaranesi's criminal process. They are not counted in this matter against Mr Altaranesi as vexatious proceedings.

1. But it is still possible to the Court to take them into account as part of the overall background in which the other proceedings are assessed, and I do. The proceedings bear many of the characteristics of the other proceedings identified in these reasons. Harrison J found that the Magistrate was correct in finding that Mr Altaranesi's criminal process "was duplicitous or was otherwise so difficult to comprehend to amount to a denial of natural justice or procedural fairness"; and that it was accordingly "incapable of being maintained or supported in its present form": at [47]. This criminal process demonstrated the same scrambled allegations that are evident in the other proceedings which do qualify as "vexatious proceedings".

1. In Altaranesi v Whalan Harrison J made some broader observations for the benefit of Mr Altaranesi and his opponent, that are of considerable assistance in the Court's present exercise of discretion. After making orders, under the heading "Some Further Matters", his Honour made the following observations (at [64] - [67]):-

"[64] It will be apparent that the circumstances that give rise to these proceedings are somewhat unusual although by no means unique. As I have already noted, the plaintiff seeks some degree of recognition and vindication for the hurt he feels he has suffered at the hands of others who have been unfair to him. He told me that he had been punched and victimised and that when he reported these matters he was ignored or fobbed off. He sought redress in the Government and Related Employees Appeal Tribunal but apparently without success. I am informed that he was dismissed for misconduct but no details of that assertion are before me and it would appear to be contentious. The plaintiff has also instituted proceedings under s 84 of the Industrial Relations Act, presumably contending that his dismissal was harsh, unreasonable or unjust. He has in addition commenced a number of matters against the Sydney Southwest Area Health Service alleging breaches of the Health Records and Information Privacy Act and the Privacy and Personal Information Protection Act in the Administrative Decisions Tribunal. Some of those matters have been heard and the complaints have been dismissed. Some of them are concerned with issues that are referred to in the plaintiff's application filed in the Local Court which was heard by her Honour and which is the subject of the plaintiff's case before me.

[65] The plaintiff plainly demonstrated that he is emotionally very troubled by all that has beset him. He became upset in my court. He reiterated that what he really wanted was an apology. I have assumed that in the context of these several pieces of litigation, the notion that the defendants might apologise to the plaintiff has either been overlooked or intentionally disregarded. I recognise immediately that those from whom an apology is sought may themselves quite properly or at least understandably feel that one is neither called for nor warranted and should not be offered. I am in no position to express any view about this and I do not do so. And yet the proceedings continue.

[66] The plaintiff's attempts to achieve some appropriate outcome or closure by the commencement of criminal proceedings against the defendants may appear to some to be incongruent and inappropriate and considerably less than the most suitable course to pursue towards that end. I refrain from expressing a view about that as well. I certainly consider that the plaintiff would profit from some professional legal advice and assistance about the wisdom of continuing to prosecute these proceedings to their ultimate but as yet uncertain conclusion. I can presently have no reasonable anticipation or expectation of what that conclusion may be or when it will arrive. I can say, however, that the physical and emotional toll of this type of adversarial litigious pursuit, which is so often driven by highly commendable but typically elusive matters of principle, is generally if not inevitably more destructive than restorative.

[67] I trust that the plaintiff and the defendants will consider these matters, as well as the terms of s 56 of the Civil Procedure Act 2005, in the weeks ahead as they contemplate what steps they will next take in this case."

1. Although it is unclear what happened to the criminal proceedings, his Honour's additional observations to the parties about the need for restraint in conducting litigation and about the possible conciliation of existing proceedings, despite their feelings of hurt were, with respect to his Honour, perfectly targeted at least to Mr Altaranesi's best interests. But his Honour's words seem to have fallen on deaf ears with respect to Mr Altaranesi's subsequent conduct of his wider litigation. The fact that such judicial prompting some three years ago did nothing later to stem the tide of Mr Altaranesi's litigation does not stand in his favour in the Court's present exercise of discretion.

(c) The Privacy Proceedings;

1. Mr Altaranesi brought a large number of privacy proceedings, some 25 altogether. In these proceedings he claimed in various ways that the Area Health Service and its employees breached his privacy. Each one of these proceedings has been dismissed. Mr Altaranesi's conduct in this group of proceedings is the pre-eminent reason for the Court making a vexatious proceedings order under s 8 of the Act. The privacy proceedings started with Mr Altaranesi filing an application on 15 December 2008 in the matter KT v Sydney South West Area Health Service [2010] NSWADT 102. They concluded with his filing applications for special leave to appeal in the High Court on 28 February 2012 and 2 April 2012: Tareq Altaranesi v Administrative Decisions Tribunal & Anor [2012] HCASL 126 and [2012] HCASL 129. The High Court dealt with and dismissed both applications for special leave to appeal on the papers on 15 August 2012. It is necessary to consider the detail of these various applications commencing in December 2008.

1. Mr Altaranesi's claims of breach of privacy were made under the Privacy and Privacy and Personal Information Protection Act 1998 ("the Privacy Act") and the Health Records and Privacy Information Act 2002 ("the Health Records Act"). Mr Altaranesi commenced the first ADT action under these two Acts on 15 December 2008, which was decided by Judicial Member Molony on 12 February 2010: KT v Sydney South West Area Health Service [2010] NSWADT 102 [Tab 6]. Mr Altaranesi's ADT application was for a review, under the Privacy Act and the Health Records Act, of the conduct of a doctor and another employee employed by the Area Health Service, who were each alleged to have disclosed Mr Altaranesi's health or personal information to third parties without his consent.

1. The ADT rejected Mr Altaranesi's case on the facts. The ADT found that the doctor had disclosed Mr Altaranesi's health information with his consent and rejected Mr Altaranesi's contrary account as "untruthful", and further found that Mr Altaranesi's allegations against that doctor were "unsupported and false": (at [9]).

1. The ADT also rejected Mr Altaranesi's application on an issue of law. The Tribunal found that the information disclosed was neither health information nor personal information and being the kind of information described in the Court of Appeal's decision in Vice-Chancellor Macquarie University v FM [2005] NSWCA 192, did not attract the operation of the Privacy Act or the Health Records Act: (at [10]). In the result therefore Mr Altaranesi was "entirely unsuccessful": (at [11]).

1. The ADT then made adverse cost orders against Mr Altaranesi after hearing submissions in relation to costs. The ADT did so in the context of Administrative Decisions Tribunal Act 1997, s 88 ("the ADT Act") which provides the general rule that parties are to bear their own costs, unless in the ADT's discretion identified factors warrant the ADT making an order for costs in the circumstances. Those factors include "vexatiously conducting the proceedings", "prolonging unreasonably the time taken to complete the proceedings".

1. The ADT exercised its ADT Act, s 88 discretion and awarded costs. Its findings well demonstrate that these proceedings were "vexatious proceedings" within s 6 of the Act. The ADT made the following findings relevant to the exercise of its costs discretion. Mr Altaranesi filed and relied upon "extensive materials" which the ADT found "not relevant": (at [18]). When prosecuting his claim Mr Altaranesi filed "a large volume of irrelevant material and made submissions going to issues beyond the scope of the internal review", issues which at the hearing "he repeatedly persisted in trying to press": (at [44]). This had the result of increasing the "complexity and difficulty" of the proceedings: (at [44]). Various of Mr Altaranesi's claims and submissions were described as "always untenable and bound to fail" (at [35]), as being "untenable", which was "clear from the start" (at [40] and [41]), as "pressing some claims which....were vexatious" (at [47]). I accept the Attorney's submissions that this was "vexatious proceedings" within s 6 of the Act. I infer from Mr Altaranesi's persistence in unsubstantiated contentions in this matter and from the volume of material filed and from the lack of tenable argument that the proceedings were an abuse of process, were without reasonable ground and were instituted with the intention and the effect of harassing, annoying and causing delay and detriment to the Area Health Service and its individual employees.

1. Although the next ADT privacy proceeding was decided on 15 April 2010, after KT v Sydney South West Area Health Service [2010] NSWADT 102 [Tab 6], it was initiated before that other matter. In this next matter (KT v Sydney South West Area Health Service [2010] NSWADT 94 [Tab 7]) Mr Altaranesi alleged that he had been denied or delayed access to his own health information contrary to the Privacy Act and the Health Records Act after one ADT member recused herself the matter came before Judicial Member Molony who found that Mr Altaranesi had not demonstrated any contravention of the principles promulgated under the Privacy Act or the Health Records Act and decided to take no action on the review (at [55] and [56]). The ADT found there to be some arguable substance to this complaint, and the Attorney does not allege it was vexatious. The Attorney's position in my view is correct. This was not "vexatious proceedings".

1. But the same is not true of Mr Altaranesi's appeal from the two earlier privacy provision proceedings, KT v Sydney South West Area Health Service [2010] NSWADT 102 [Tab 6] and KT v Sydney South West Area Health Service [2010] NSWADT 94 [Tab 7], which the ADT Appeal Panel decided on 2 September 2010: KT v Sydney South West Area Health Service(GD) [2010] NSWADTAP 60 [Tab 8]. The Appeal Panel dealt with both aspects of Judicial Member Molony's Tab 6 decisions, the dismissal of the review and the cost application, together with an appeal from the Tab 7 decision. It is not necessary to enter into detail in relation to the Appeal Panel's findings that all three appeals be dismissed other than to identify a number of findings that reaffirm the continuation in this appeal of Mr Altaranesi's patterns of litigious conduct. The Appeal Panel could find "no error in the approach adopted by the Tribunal": at [32]. "There is nothing about [the ADT's] decision (though KT would no doubt disagree) that suggests its judgment involved any manifest injustice": at [47]. And "in our view there was nothing exceptional about the way the Tribunal dealt with this case": at [60].

1. Mr Altaranesi initiated his next privacy proceeding with the ADT on 25 September 2010: Kt v Sydney South West Area Health Service [2010] NSWADT 227 [Tab 9]. In this matter he alleged contraventions of the information protection principles under the Privacy Act and the health privacy principles under the Health Records Act. Mr Altaranesi's application alleged disclosure of his personal information for unlawful purposes to lawyers, doctors, other employees, police and insurers. The Area Health Service challenged the ADT's restriction to deal with the proceedings and the ADT dismissed Mr Altaranesi's claims on the basis of lack of jurisdiction, on the basis of lack of merit in the complaint and on the basis of non acceptance of Mr Altaranesi's evidence: KT v Sydney South West Area Health Service [2010] NSWADT 227 [Tab 9]: at [13], [14], [76], [77], [79] and [141]. On the basis of the ADT's findings I conclude that this was a "vexatious proceeding" within s 6(c) of the Act in that it was "without reasonable ground".

1. Mr Altaranesi appealed to the Court of Appeal against the result in KT v Sydney South West Area Health Service [2010] NSWADTAP 60 [Tab 8]. He filed his Notice of Motion in the Court of Appeal on 30 November 2010 against the decision of the Appeal Panel on 2 September 2010, dismissing the allegations in the three matters. Campbell JA, sitting as a Court of Appeal, determined Mr Altaranesi's motion on 13 December 2010: Altaranesi v Administrative Decisions Tribunal [2010] NSWCA 378. Mr Altaranesi's motion sought two classes of order: (1) dealing with the costs he had been ordered to pay in the ADT pending the outcome of his appeal; (2) reviewing the merits of the case; and (3) contending that the decision of the ADT had been obtained by fraud. Two of these three matters were entirely without merit. The other could probably have been dealt with without the need for a motion.

1. The Area Health Service gave undertakings that disposed of the costs issue. But the other two issues were dismissed. Campbell JA found that it might be possible for Mr Altaranesi to argue a case of jurisdictional error or denial of procedural fairness as an appeal on a question of law within the ADT Act, s 119: at [6] - [8]. But Campbell JA found that the contention that the decision below was obtained by fraud "depended upon a factual base which has not yet been established" and "is not the sort of allegation that can be made in an appeal brought under ADT Act, s 119". In any event, his Honour found that the appropriate place for such an attack would be in the original jurisdiction of the Court in its Equity Division, not in the Court of Appeal: at [10].

1. Apart from the costs issue, Mr Altaranesi put nothing of substance before Campbell JA in this proceeding. The remainder of his Honour's reasoning dealt with ways that his Honour thought that the proceedings might be advanced. This was somewhat of an explanation to Mr Altaranesi, in his Honour's reasons, about the available legal avenues for him. But none of what Campbell JA said in my view is a basis to infer that Mr Altaranesi was actually advancing a reasoned case based valid upon points of law articulated in accordance with orthodox principle. The proceedings were dismissed because they lacked legal merit. In my view these were also, for that reason, "vexatious proceedings" within the meaning of paragraph 6(a) and (c) of the Act.

1. Mr Altaranesi's next privacy proceedings was the result of a 12 February 2010 application to the ADT and was based on a deemed refusal of his prior FOI request to the Area Health Service. On 3 March 2011 the ADT (Judicial Member Molony) affirmed the deemed decision to refuse Mr Altaranesi access to the documents the subject of the FOI request: Altaranesi v Sydney South West Area Health Service [2011] NSWADT 43 [Tab 11]. This is a matter in which the Attorney did not allege was vexatious and was one on which, therefore, Mr Altaranesi relied to show that on balance he was well able to initiate competent and meritorious proceedings. Although I do not find this was a "vexatious proceedings" within s 6 of the Act, nevertheless it gives little comfort to the Court that Mr Altaranesi was focused upon the meritorious and reasonable exercise of his rights.

1. Mr Altaranesi is both ready and determined to burden his opponents and public authorities with complexity and prolixity. Between December 2009 and the filing of proceedings in February 2010 this Tab 11 matter shows that Mr Altaranesi had been corresponding with the Area Health Service seeking the entire health information about him in the files maintained by various doctors and departments. The Area Health Service took the position that, relying upon FOI Act, s 25(1)(a) that the work involved in dealing with his application for access would "substantially and unreasonably divert the agency's resources away from...the exercise of its functions". Rather than modify, reduce or focus his requests to make them more manageable, Mr Altaranesi continued to insist upon them in full and made other requests. When the matter came before the ADT it concluded that by December 2010 Mr Altaranesi had "amended and amplified his request": at [54]. But the amendment was not just to preserve the volume of his existing requests. Rather it was a tactic to try and avoid the effect of FOI Act, s 25(1)(a), whilst not sacrificing any of his requests, as the ADT found: at [56]. The ADT accepted that the work involved in processing Mr Altaranesi's amended request would substantially and unreasonably divert the Area Health Service's resources; and, it affirmed the deemed refusal of access to the documents: at [78].

1. Although Mr Altaranesi had an arguable right to access the documents, this case [Tab 11] shows his tendency, also evident elsewhere, deliberately to add to the burden of requests to his opponents. Such conduct is particularly relevant in the other cases where the Court finds "vexatious proceedings" within s 6(b) and (d) of the Act.

1. Mr Altaranesi took the Appeal Panel proceedings, KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60 [Tab 8], decided on 2 September 2010, further with a costs argument, decided on the papers on 4 March 2011. The Appeal Panel's decision in dismissing the appeals included directions for submissions on costs, which both sides filed, asking for costs. The Appeal Panel was required to apply ADT Act, s 88 which presumes parties will bear their own costs of ADT proceedings unless one or other party is guilty of vexatious or other similar conduct. In the result the Appeal Panel ordered Mr Altaranesi to pay the Area Health Service's costs: KT v Sydney Local Health Network (formerly South West Area Health Service) (No. 2) (GD) [2011] NSWADTAP 8 [Tab 12] at [34]. In doing so the Appeal Panel criticised Mr Altaranesi's conduct in ways that found an inference that these were "vexatious proceedings" within s 6 of the Act.

1. With respect to the three concurrent appeals, the Appeal Panel's key findings were: (1) Mr Altaranesi's pursuit of the appeal was "a continuation of the same unacceptable conduct as he had shown at first instance before the ADT" (at [27]); (2) Mr Altaranesi "has continued to pursue a claim found by the Tribunal to be untenable" (at [27]); and having dealt with two of the appeals, (3) the Appeal Panel's view of the third appeal was "this appeal was not as unmeritorious as the other appeal...and did not take up a lot of time at hearing" (at [31]). The Appeal Panel's conclusions were the majority of these appeal proceedings were occupied with unmeritorious time wasting points that I infer were, brought without reasonable ground, and had the effect of causing harassment, annoyance, delay and detriment such that it was an abuse of process and "vexatious proceedings" within s 6(a) - (d) of the Act.

1. On 5 October 2010 Mr Altaranesi appealed to the Appeal Panel against two other ADT decisions, KT v Sydney South West Area Health Service [2010] NSWADT 131 [Tab 23] of 20 April 2010 and KT v Sydney South West Area Health Service [2010] NSWADT 227 [Tab 9] of 24 September 2010. ADT Act, ss 112 and 113 require appeals to be on questions of law, or brought with leave, as to the merits. Mr Altaranesi's appeals against both decisions failed, for reasons from which I infer this appeal was "vexatious proceedings" under s 6 of the Act. Leave to appeal against the first [Tab 23] decision, was not granted. The Appeal Panel found that Mr Altaranesi had "no arguable case in relation to the Tribunal's exercise of its discretion" on the three discretionary judgments being challenged: at [24]. In relation to the second judgment appealed against, at [Tab 9], the position was even stronger against Mr Altaranesi. The Appeal Panel found that the ADT had undertaken a thorough investigation of the matters under review and in respect of the various complaints said that the ADT had "dealt thoroughly with the issues raised by [Mr Altaranesi] and its findings are unassailable": at [48]. In respect of another complaint that the Area Health Service's supplying documents under subpoena constituted a "fraud" on Mr Altaranesi, the Appeal Panel found "there is no basis for this allegation. The Agency had a legal duty to respond to the subpoena": at [54]. On another complaint where the Tribunal was being invited to re-open the merits of the case the Tribunal said "this case received close and careful consideration by the Tribunal below. It made detailed findings on the evidence placed before it, and has had regard to the applicable law. There are no errors of law in its analysis. There needs to be an end brought to this dispute": at [70]. The Appeal Panel left open issues of costs which became the forum for another contest.

1. The Appeal Panel's decision of 18 March 2011 [Tab 13] left open the issue of costs of the appeal. The Appeal Panel, through its President, determined the issue of costs on 28 September 2011: KT v Sydney Local Health District (formerly Sydney South West Area Health Service) (No. 2) (Costs) [2011] NSWADTAP 42 [Tab 15]. In this decision the Appeal Panel, declined to grant Mr Altaranesi costs against the Area Health Service and awarded costs against him for the subject appeal. By the time this case was decided the President had already experienced a number of Mr Altaranesi's applications to the Appeal Panel. And he made comments in dismissing the cost application, about the course of the litigation to that point. The learned President's comments assist this Court in inferring that these, and indeed the earlier proceedings, were vexatious.

1. The President's comments were sharply critical of Mr Altaranesi's conduct. A few examples will suffice. The President was not prepared to grant costs concessions "to an unsuccessful litigant in person who has been involved in numerous findings in the Tribunal...who should have acquired some understanding of the need to exercise the right of appeal with care and for the need of economy and focus in the presentation of arguments and material" at [12]. The President commented on Mr Altaranesi's grounds of appeal: that he had "adopted a scattergun approach", and that "they read like chapter headings from a textbook", and moreover, "many of the grounds had no explanation and lacked in my view any reasonable basis": at [94]. The President thought that the costs orders were justified because "the appellant brought a weak case to the Appeal Panel", and he "raised numerous points, most of them having no merit", and he conducted the case "to put in issue all aspects of it" with the result that "the proceedings had been unreasonably prolonged, giving rise to unnecessary costs": at [22]. In summary, Mr Altaranesi's cost application was "without merit": at [21].

1. This particular piece of litigation KT v Sydney Local Health District (formerly Sydney South West Area Health Service) (No. 2) (Costs) [2011] NSWADTAP 42 [Tab 15] is a very clear example of Mr Altaranesi's litigious conduct which qualifies under every paragraph of the Act's s 6 definition of "vexatious proceedings".

1. On 16 July 2010 Mr Altaranesi wrote to the privacy officer of the Area Health Service complaining about seeking review of the use by Ms Jackie Mills, an employee of the Area Health Service, of Mr Altaranesi's personal information. An internal review took place, which was not to Mr Altaranesi's satisfaction. And on 15 September 2010 Mr Altaranesi filed an application for review, which was determined on 15 July 2011: KT v Sydney Local Health Network [2011] NSWADT 171 [Tab 14]. Here Mr Altaranesi sought review under the Privacy Act in respect of the Area Health Service's use and disclosure of his personal information. The reasons of Judicial Member Molony reflect a struggle by that judicial officer to contain Mr Altaranesi's conception of the issues within reasonable boundaries. The conflict between the Judicial Member's sense of relevance and Mr Altaranesi's desire to litigate every issue is palpable in many parts of the reasons: "it is a matter that would ordinarily have been completed in half a day. The proceedings was protracted by KT's persistent attempts to introduce, rely upon ad cross-examine about matters which fell outside the scope of the review". The Judicial Member was sure that Mr Altaranesi's conduct was deliberate, saying that the limits on the scope of the Tribunal's review under the Act "are matters about which KT was well aware, having been advised of the number of cases, as well as this case": at [15] - [16]. This is a further demonstration of Mr Altaranesi's persistence against reasonable advice, in pressing irrelevant issues forward. In this case it resulted in attempting to lead "a substantial body of evidence going to issues outside the scope of the review", much of which was struck out.

1. Here too there was a recusal application on the ground of the Judicial Member's alleged apprehended bias. The Judicial Member found the application was simply a result of "the matter not proceeding as [Mr Altaranesi] had hoped, and his dissatisfaction with what had occurred": at [27].

1. The evidence in this case repeated letter writing and requests for internal review, which in the Judicial Member's opinion constituted a "an abuse of the processes established by the Act": at [65].

1. In my view this proceeding qualifies as "vexatious proceedings" within every paragraph of s 6 of the Act. It was pursued without reasonable ground. It involved deliberate protraction of the proceedings. It was an abuse of process. And it undoubtedly caused harassment, annoyance, delay and detriment.

1. Judicial Member Molony then had to deal with the question of costs arising out of his earlier decision KT v Sydney Local Health Network [2011] NSWADT 171 [Tab 14]. Mr Altaranesi opposed the making of cost orders against him, despite the determination adverse to him in the substantive proceedings. He argued that the ADT had no power to award costs in the review of conduct under the Privacy Act. Mr Altaranesi was unsuccessful in this contention in a decision that Judicial Member Molony gave on 6 October 2011: KT v Sydney Local Area Network [2011] NSWADT 233 [Tab 16].

1. Judicial Member Molony's reasons for awarding costs against Mr Altaranesi throw further light on the conduct of the proceedings and the cost application itself. Judicial Member Molony's findings support the inference, which I draw, that both the Tab 14 proceedings and the costs argument itself, resulting in the Tab 16 decision, were "vexatious proceedings" within s 6 of the Act. His findings, coming as they did after experience with Mr Altaranesi in various applications, provide close insight into Mr Altaranesi's conduct. Samples of the findings follow. The Tribunal found that Mr Altaranesi "by his conduct in the proceedings did protract them significantly": at [16]. The ADT was of the view that Mr Altaranesi "persisted with matters which had been ruled irrelevant": at [17]. Moreover in light of existing authority his "attempts to extend the ambit of external review were always untenable and bound to fail": at [18]. And as to two of Mr Altaranesi's points the ADT was of the view they were "an exercise in utility from the start. This did not require specialist knowledge to understand. It was a matter which was obvious". As to Mr Altaranesi's other points in the proceedings the ADT held "the balance of KT's claim was dubious at best": at [21].

1. But the Tribunal's findings reaffirmed Mr Altaranesi's tendency to prolixity "KT also advanced a series of other arguments which I found unnecessary to consider....He filed and relied on large volume of irrelevant material and made submissions going to issues beyond the scope of the internal review, all of which had to be considered by the agency and consume time in the hearing": at [22]. The ADT then had to assess whether Mr Altaranesi was "vexatiously conducting proceedings" within the meaning of ADT Act, s 88(1A)(a)(vi). Applying authority relating to the now repealed Supreme Court Act, s 84, Attorney General v Wentworth (1988) 14 NSWLR 481, Roden J) the ADT concluded: "I am satisfied that KT did conduct the proceedings vexatiously" (at [26]), in part because the proceedings were either "bound to fail" or "held only a minimal prospect of success" and Mr Altaranesi "persistently sought to use the proceedings to ventilate issues beyond the scope of the Tribunal's review" (at [26]). Finally, the ADT made a character assessment of Mr Altaranesi in profile, which in a few brush strokes accurately depicts the Mr Altaranesi who appears through these many proceedings: in all his conduct Mr Altaranesi "displayed a dogged persistence which it was not possible to fully restrain": at [28]. In my view this assessment is perfectly correct. The only way of restraining Mr Altaranesi in my view is by making an order under s 8 of the Act.

1. Although Mr Altaranesi was unsuccessful in this proceeding, the ADT's reasons show that his argument was not without some legal merit, requiring the consideration of judicial authority and legal analysis before dismissal. Mr Altaranesi relies upon this case, together with several others, as demonstrating that some of the actions that he has instituted show his capacity to bring, and his bringing of, meritorious claims. This and the other proceedings like it are certainly to be weighed in his favour. But they are overwhelmed, in my view, by the number of the cases he has initiated where legal merit is entirely absent or where there are other strong indicia of "vexatious proceedings".

1. Although the ADT had determined the question of its jurisdiction to review the NSW Self Insurance Corporation's search for documents, the ADT still had to deal with what remained of Mr Altaranesi's FOI application, upon which there was no jurisdictional contest. It had decided the first matter on 30 August 2010. It decided the second matter on 2 September 2010: Altaranesi v NSW Self Insurance Corporation (No. 2) [2011] NSWADT 28 [Tab 22].

1. I pause to find that this and the previous matter are the one "proceedings" within the Act. This is simply a case where the judicial officer concerned decided upon the not uncommon procedural course of giving two separate judgments in respect of qualitative different aspects of the one proceeding. Mr Altaranesi only brought one application on 23 February 2010, without seeking any other associated interlocutory relief or review relief. There was within the language of s 6 of the Act only one "proceedings".

1. But Mr Altaranesi had little success in the second part of this application in Altaranesi v NSW Self Insurance Corporation (No. 2). The ADT gave him access to two out of the 61 documents over which the Self Insurance Corporation had claimed legal professional privilege: at [87]. But this small degree of success was embedded in other procedural issues on which Mr Altaranesi failed. The ADT rejected Mr Altaranesi's application for a Summons to produce documents, in an attempt to prove those documents existed. The ADT found that because it had already determined it had no jurisdiction to deal with the adequacy of the relevant agency's search of documents "no purpose can be achieved by compelling production [of these documents] under Summons": at [21]. The ADT also rejected Mr Altaranesi's application to cross-examine a claims officer of Employers Mutual Limited who had dealt with his workers compensation claim: at [22].

1. In my view it cannot be said that either of these procedural applications was without legal merit or otherwise attracts the definition of "vexatious proceedings" in s 6 of the Act. Experienced legal practitioners do not uncommonly bring these kinds of applications. Nor could it be said that these were "vexatious proceedings" because only two of 61 documents were released from legal professional client privilege and made available to Mr Altaranesi. Applicants opposing claims for client privilege are often working to an extent in the dark and have only a modest rate of success. It is not a particularly powerful badge of lack of merit, lack of reasonable grounds or of the purpose or effect of harassment, annoyance or causing delay or detriment. Contrary to the Attorney's submissions I do not regard these as vexatious proceedings because of these particular contentions on Mr Altaranesi's part.

1. But then Mr Altaranesi took a step which was wholly unjustified and from which I infer this was "vexatious proceeding" within s 6 of the Act. This step was a simple demonstration of how Mr Altaranesi can use his informally acquired legal skills in a proper way to his own advantage, but he then can quickly tip over into conduct "to harass or annoy, cause delay or detriment, or achieve another wrongful purpose". He asked the ADT Judicial Member to disqualify himself on the basis that the member: (1) had denied him natural justice by refusing to issue the Summons; and (2) decided the jurisdictional question in Altaranesi v NSW Self Insurance Corporation [2010] NSWADT 217, adversely to Mr Altaranesi. As the ADT member summarised the submissions put to him, "he [Mr Altaranesi] said that my refusal to issue the Summons together with a decision I had made in a previous case, had led him to conclude that I had already made up my mind as to the merits of his present case. As a result he asked that I disqualify myself". But having reviewed the terms of the jurisdictional decision and considering the mere decision not to issue the Summons, the application to the Judicial Member to disqualify himself was, I conclude, "pursued without reasonable ground" and was so lacking in merit to be an "abuse of process" within s 6 of the Act. The application for the ADT Judicial Member to disqualify himself was "proceedings" within s 4 of the Act as it was "taken in connection with all incidental proceedings pending before a court or tribunal". I accept the Attorney's submissions that it was an abuse of process because the defendant was seeking to re-agitate matters already determined conclusively against him.

1. For convenience this allegation of bias is dealt with as part of this group of decisions because it was not part of a separate proceeding seeking disqualification.

1. Mr Altaranesi filed his second FOI Act application to the ADT on 5 May 2010. The ADT made its decision on this application on 22 October 2010: Altaranesi v Commissioner of Police [2010] NSWADT 252. I accept the Attorney's submissions that this application was "vexatious proceedings" within s 6 of the Act.

1. This FOI application followed Mr Altaranesi's FOI request on 22 February 2010 to the NSW Police, in which application he sought police reports relating to a specific police event number and other events or reports involving him recorded by Newtown police between August 2004 and April 2008. Upon a deemed refusal of that request (because no decision had been made within the prescribed period) Mr Altaranesi sought an internal review. Mr Altaranesi made an ADT application on the basis of a deemed refusal of an internal review (in default of a decision). But the NSW Police claimed it had identified some 17 pages of documents which were responsive to the request of which three pages were released in full and the balance redacted. There was a dispute as to whether Mr Altaranesi had received the result of the internal review before making his ADT review application. As Mr Altaranesi had achieved some partial success on the internal review, at an ADT Planning Conference, Mr Altaranesi agreed to withdraw his application. But he sought an order for costs relating to the application, which was opposed.

1. But Mr Altaranesi had commenced his ADT proceedings prematurely and before the time for internal review had expired. The ADT found that it was without jurisdiction and that in the circumstances the proper order was that it would make no order as to costs: Altaranesi v Commissioner of Police [2010] NSWADT 252 at [26] - [33]. The ADT found (at [32]) "I do not think it is fair that the respondent [the Commissioner of Police] be required to pay Mr Altaranesi's costs of proceedings which were commenced prematurely and would, had he not withdrawn his application, had been destined to be dismissed for want of jurisdiction".

1. Contrary to the Attorney's submissions, in my view, it cannot be said that these proceedings were instituted without reasonable ground under s 6(c) of the Act. The Commissioner of Police's internal review showed there was some merit in Mr Altaranesi's application for internal review. He made an error in commencing his ADT application prematurely. But that error of timing in what was otherwise a meritorious application does not make this "vexatious proceedings". Such errors are not uncommon in litigation.

(e) The Allegations of Bias

1. Mr Altaranesi brought separate proceedings for bias against two of the decision makers considering his various applications: KT v Sydney South West Area Health Service [2010] NSWADT 131 [Tab 23] and KT v Commissioner of Police, NSW Police Force (GD) [2010] NSWADTAP 39 [Tab 24]. These two decisions are considered in this section. These two decisions are additional to the several applications for disqualification of decision makers that Mr Altaranesi has made in the course of other applications, which have been considered elsewhere in these reasons: KT v Sydney South West Area Health Service (GD) [2010] NSWADTAP 60 [Tab 8]; KT v Sydney Local Health Network [2011] NSWADT 292 [Tab 18]; Altaranesi v NSW Self Insurance Corporation (No. 2) [2011] NSWADT 28 [Tab 22]; and KT v Sydney Local Health Network [2011] NSWADT 171 [Tab 14]. Mr Altaranesi has been successful in none of these applications.

1. But these two additional applications show an equal lack of merit. The first was an application to the ADT's Judicial Member Moloney, who had considered a number of Mr Altaranesi's applications. The second was a decision of the ADT's Appeal Panel. On 3 March 2010 Mr Altaranesi requested Judicial Member, Mr Moloney, to disqualify himself on a general basis in respect of all of Mr Altaranesi's applications to the ADT: a disqualification would have resulted in Judicial Member Molony not sitting on all of Mr Altaranesi's applications which had been allocated to Judicial Member Moloney. Judicial Member Molony rejected the application on 20 April 2010: KT v Sydney South West Area Health Service [2010] NSWADT 131 at [3] and [37].

1. The ADT's saw fit to give confidentiality to Mr Altaranesi's various applications by giving him the pseudonym "KT" in any of these proceedings, including this one. But I do not see any basis for continuing this pseudonym in the present proceedings. Although the linking of Mr Altaranesi's name with "KT" in these reasons for decision will make a connection which has not previously existed in the public domain, the nature of these proceedings, aggregating as they do proceedings brought in Mr Altaranesi's own name with the proceedings which are subject of a pseudonym cannot in my view be fairly considered in the public interest without the pseudonym being lifted. Mr Altaranesi objected to this course being taken. But the Court indicated to him that it proposed to take this course over his objection unless he put further submissions on the matter. None were put.

1. Mr Altaranesi relied upon decisions that Judicial Member Molony had made in two prior matters in which he had been unsuccessful before that decision maker: see [2010] NSWADT 102 and [2010] NSSWADT 94. But the materials put before this Court confirm in my view the opinion that Judicial Member Molony expressed in KT v Sydney South West Area Health Service [2010] NSWADT 131 at [32]:-

"[32] I consider that KT's complaint is really one that he did not like and disagrees with the decision I reached. As a result, he claims that he will not get natural justice. Aside from the decision itself, he does not point to any specific conduct or finding which he claims give rise to an apprehension of bias. I do not consider that an informed, fair-minded lay observer might reasonably apprehend that I might not bring an impartial mind to the determination of KT' cases, as a result of my decision in that case."

1. Mr Altaranesi pursued some other grounds for seeking to disqualify Judicial Member Molony. The allegations were about Judicial Member Molony's general conduct in managing Mr Altaranesi's cases, namely that Judicial Member Molony: made unspecified adverse observations against Mr Altaranesi without proper justification; expressed unspecified strong opinions for elements of the case without hearing Mr Altaranesi's comments; allowed Mr Altaranesi's opponents to cause delay and expense to Mr Altaranesi; and, had not determined matters as quickly as practicable. Whilst Mr Altaranesi may have perceived unfairness in Judicial Member Molony's conduct, warranting such an application, such unspecific allegations were doomed to failure in my view and were correctly dismissed by Judicial Member Molony: see [34] - [36].

1. In my view the application for Judicial Member Molony to disqualify himself was "vexatious proceedings" within s 6(a) and (c) of the Act. The proceedings did not articulate or demonstrate reasonable grounds, and were in my view, without reasonable grounds and were an abuse of process. I accept the Attorney's argument that it is reasonable to infer that these proceedings were instituted to either achieve a wrongful purpose or to have that effect: namely to remove from the consideration of Mr Altaranesi's various ADT matters a judicial officer who Mr Altaranesi preferred not to have decide his cases.

1. In addition to the FOI matter against the Commissioner of Police already considered (Altaranesi v Commissioner of Police [2010] NSWADT 252 [Tab 21]) Mr Altaranesi made an application to the ADT against the Commissioner of Police's determination that it did not hold certain of the documents requested. Mr Altaranesi applied to the ADT for review of the Commissioner of Police's determination. The Tribunal dismissed his application on 24 August 2009 and Mr Altaranesi appealed that dismissal which was heard by the Appeal Panel and decided on 4 June 2010 (KT v Commissioner of Police, NSW Police (GD) [2010] NSWADTAP 39). The ADT sitting as an appeal panel dismissed the application.

1. The applicant made many separate points in this particular ADT appeal application, complaining: about documents not properly identified; about not receiving the whole of the contents of police notebooks; about the ADT's power to go behind an agency's statement that it had no documents; about his being required to leave a hearing room rather than be physically present; and finally, for disqualification of the member on the day of the hearing.

1. All of these points were unsuccessful, leading to dismissal by the ADT appeal panel. A review of the appeal panel's reasons for decision (especially at [8] - [12]) shows Mr Altaranesi's arguments were either without legal merit or were based upon a misunderstanding of the ADT's ordinary procedures, none of which in fact seem to this Court to have resulted in any procedural unfairness to him.

1. But the ADT appeal panel's findings about the unsuccessful application for disqualification was resoundingly rejected in the following terms (at [13] and [14]):-

"[13] KT's bias objection is linked to other cases brought by him, heard before the same member. He believes that the member did not protect him from insulting behaviour by the practitioner on the other side in previous cases. He also refers in his written submissions to the procedurally unfair way (as he sees it) that the member conducted the hearing in the present case, an issue we have dealt with at [10].

[14] In our view, there is nothing in the material that would remotely suggest that the decision by the member to reject his application for her disqualification was wrong. There could, we think, be no reasonable apprehension of bias on the part of a fair-minded observer, applying the well-known principles: see O'Sullivan v Medical Tribunal of NSW [2009] NSWCA 374, for a recent restatement of the principles in a tribunal context."

1. Both the reasons for decision and the notice of appeal in these appeal panel proceedings [Tab 24] are supportive of the view reached by the appeal tribunal that nothing in the materials "would remotely suggest that the decision by the member to reject [Mr Altaranesi's] application for her disqualification was wrong". I accept the Attorney's submissions that Mr Altaranesi pursued this application without reasonable grounds within s 6(c) of the Act. It also constitutes, in my view, an abuse of process within s 6(a) of the Act.

Decision Under Section 8

1. This analysis of Mr Altaranesi's past institution of vexatious proceedings makes a strong discretionary case for the Court to make s 8(7) orders under the Act: staying proceedings that Mr Altaranesi has instituted is now conducting; and, prohibiting him from instituting further proceedings. The analysis shows Mr Altaranesi's various proceedings involve many of the ingredients of an abuse of process: unjustifiable use of judicial resources, a determination to persist with futile appeals in the face of repeated judicial observations that proceedings were doomed to failure; and causing others to incur legal costs in responding to hopeless applications where the defendant has disregarded costs orders already made against him: see [18] above. Moreover, he has instituted I excess of 30 such proceedings in a little over 5 years, which well qualifies as "frequently".

1. Mr Altaranesi naturally emphasised the discretionary considerations against making such orders. This section deals with each of his arguments but concludes s 8(7) orders should be made against him. Two other matters remain to be determined about the terms of appropriate s 8(7) orders: (1) whether such orders should include a "sunset clause", which would automatically discharge them after 5 years; and (2), whether such orders should exempt any current proceedings from the operation of an immediate stay.

Mr Altaranesi's Case

1. Mr Altaranesi deployed a variety of arguments in answer the Attorney's case. His arguments fell into two categories. In the first category were arguments supported by evidence which raised relevant considerations that should be weighed in the balance against making orders under s 8 of the Act. Although this category of arguments, raising relevant considerations, was of some force, I have ultimately not found the considerations Mr Altaranesi has raised to be sufficient to displace the other considerations that strongly favour making s 8 orders in this matter. The second category of arguments that Mr Altaranesi raised were less persuasive, raising considerations of marginal relevance or no relevance at all. These were often arguments that sought to re-agitate aspects of the underlying litigation, or the repetition of legal arguments based upon the wrong interpretation of legislation or misconceptions about the legal process. These reasons deal with each of these two categories of arguments.

1. Mr Altaranesi's More Persuasive Arguments. Mr Altaranesi tendered his police record (Exhibit 4). It shows he has no convictions for any kind of criminal offence. He has no motor traffic convictions. He says in substance that his lack of any adverse criminal record shows he is not the kind of person who would either institute or conduct vexatious proceedings, when he was clearly warned that he should not do so, as he has been through these proceedings.

1. A clear police record is certainly some evidence in Mr Altaranesi's favour. It shows that whatever his annoyance with the conduct of the other people associated with his workplace for their poor treatment of him, that annoyance has not resulted in him committing any breach of the criminal law. Such breaches of the criminal law are not uncommon in situations of workplace or personal relationship breakdown, leading to criminal charges of assault, of stalking, and of the misuse of telecommunication services. Mr Altaranesi has not responded to what he perceives as harassment at work by contravening the criminal law. But that does not mean that orders should not be made against him under s 8(7) of the Act. Conduct sufficient for the making of s 8(7) orders may not necessarily involve any contravention of the criminal law. Neither the s 6 definition of "vexatious proceedings" nor the s 8 requirement that a person has "frequently instituted or conducted" such proceedings require proof of a breach of the criminal law. Thus although this matter is to be weighed in Mr Altaranesi's favour, it is not of decisive weight for him.

1. Next Mr Altaranesi argued that he had commenced fewer proceedings than the number counted in the Attorney's case. But, however one classifies, then counts the proceedings, the substance is the same: all the proceedings have occupied a great deal of court and tribunal time on unmeritorious arguments. Whether they are treated as separately-counted proceedings, or as applications and appeals within a lesser number of proceedings, the amount of court, tribunal and the other parties' time occupied is still the same, and has been fully outlined in the Court's chronological analysis of the proceedings earlier in these reasons. Because the proceedings already analysed have been referred to above by their tab numbers in SLO-1 and DH-1, it is sufficient to summarise Mr Altaranesi's present argument by reference to those tab numbers. Mr Altaranesi argues: the matters in Tabs 8 and 12 are one "proceedings", not two; the matters in Tabs 13, 15, 17 and 23 are one "proceedings", not four; the matters in Tabs 14 and 16 are one "proceedings", not two; and, the matters in Tabs 20 and 22 are one "proceedings", not two. Because of the meaning of "proceedings" under s 4 of the Act, as explained earlier in these reasons, each one of these matters should in my view be counted as separate "proceedings", and Mr Altaranesi's argument is therefore not successful.

1. Then Mr Altaranesi took an unusual tack. He offered not to commence any more proceedings in the ADT. In substance he made an open offer that he was prepared to consent to orders that he had engaged in vexatious litigation in the ADT, but not elsewhere. The Attorney declined to accept this open offer or to modify the relief he sought to limit its scope to the ADT. His counsel, Ms Younan, took specific instructions on this issue and reaffirmed that the final orders sought were the same as those in the Summons and would not be limited by subject matter. The force of this open offer was that Mr Altaranesi was by it conceding a degree of vexatious conduct in the ADT but seeking to preserve his right to litigate elsewhere.

1. There is no doubt that Mr Altaranesi has initiated most of his litigation in the ADT. And most of it falls into the category of privacy proceedings. But there are a sufficient number of cases he has taken beyond the ADT, to the Court of Appeal and the High Court that it cannot be concluded he has confined his propensity to commence vexatious proceedings just to the ADT. The difficulty with his argument here is that he has joined the NSW Police and other parties only peripherally associated with his original workplace dispute and has been prepared to litigate against those persons outside the ADT about many different issues. Accepting some kind of undertaking to the Court that he would not commence proceedings in the ADT, or his consenting to an order of the same type does not, in my view, remove the fundamental problem in Mr Altaranesi's case, which is that he often cannot stop taking the next legal step available to him to reassert the correctness of his legal position, whatever its merits.

1. Mr Altaranesi also argued that the cases in which he has been successful show that he does not just institute "vexatious proceedings". Some of his proceedings have had legal merit. But assessing wins and losses must be approached with a sense of proportion. Of the 37 cases that are under consideration, 31 are claimed to be vexatious. Of the remaining 6, Mr Altaranesi was successful in only 3. In the other 3 the Attorney has conceded that although Mr Altaranesi was unsuccessful, nevertheless his case was arguable and not without some merit. These concessions were appropriately made. As the reasons show, the Court has not accepted that every one of the Attorney's 31 claimed "vexatious procedeedings" were vexatious; but almost all the 31 do so qualify. But on the 3 called so called "successes", in reality Mr Altaranesi's success was always on subsidiary or peripheral matters, or which did not result in the grant of a remedy. Mr Altaranesi's minor successes in argument had many unsuccessful companions. As the analysis above shows, each one of these cases involved substantial court time on unmeritorious argument. In my view Mr Altaranesi's successes hardly weigh in the balance against the other matters that I have found to be "vexatious proceedings". They are not a reason, in my view, not to make s 8(7) orders here.

1. Mr Altaranesi offered an hypothesis for his losing cases in the ADT: that the judicial officers in that tribunal there did not understand him, because of the interpreters being used or because of a lack of interpreters. But there is no substance in this argument. It is self evident from the detailed reasons for decision of the ADT Commissioners and of the Appeal Panel that Mr Altaranesi was able to get his message across. In a number of cases ADT Judicial Officers explained in their reasons how they sought to overcome problems with interpreters, and I infer from their reasons that they did so successfully. Furthermore it is apparent from the reasons for decision of the Court of Appeal that Mr Altaranesi argued orally and without legal representation to that court and he was able to convey ideas effectively in that forum.

1. Moreover in these proceedings before me I am satisfied that Mr Altaranesi was well served by his Arabic interpreter. An important feature of Mr Altaranesi's linguistic skills is that he has a very competent general command of English, which language he can readily absorb and process as a listener, with all its nuances. Thus he is not only able to take in what the Bench says to him but he is also in the position to correct what his interpreters say back to the Bench. On a number of occasions before me he corrected his interpreter and was allowed time to confer with the interpreter to ensure that the meaning being conveyed back to the Court in English was in conformity with his understanding of what he said in Arabic to the interpreter. I do not think that was an ability which he acquired recently. What I saw in Court allows me to infer that he was likely to have had sound command of the process of interpretation in all the proceedings in the last three or more years where he had an interpreter. Where he did not have an interpreter, with patience from the Bench, in my view he is well able to make himself understood. The need for an interpreter only arises because of his strong accent when speaking in English.

1. Next, Mr Altaranesi sought to justify the frequency of the privacy matters he brought in the ADT. He explained that because there were time limitations on him applying for ADT relief within six months of the underlying conduct, that is a reason why he says all the proceedings took place in such a short period.

1. I do not accept this argument. It is no explanation for the numbers of unmeritorious cases that Mr Altaranesi has initiated in the ADT. Nor does it account for the times within the ADT that he sought to go to its Appeal Panel and then beyond the ADT to the Court of Appeal and even the High Court. Nor does it explain the range of actions he has taken in relation to unfair dismissal, the criminal proceedings, and the numbers of unwarranted applications he has made for Judicial Officers to disqualify themselves.

1. Mr Altaranesi's Less Persuasive Arguments. Many of Mr Altaranesi's less persuasive arguments involved his own attempts to interpret legislation, using his considerable intelligence but hampered by his lack of training in rigorous legal thinking. Mr Altaranesi argued that the proceedings before the IRC should not be treated as "civil proceedings" because they are not so defined under the Civil Procedure Act 2005. What this argument neglects though is that the applicable definition of "proceedings" is the one in s 4 of the Act which is wide enough to include proceedings brought "within the jurisdiction of any court or tribunal", including the IRC. There is no substance in this point.

1. Next Mr Altaranesi argued that proceedings on different subjects, in different tribunals, and with different parties should not all be counted up for the assessing whether or not he has commenced proceedings "frequently" within s 8 of the Act. He argues that there is not a sufficient repetition of the same combination of tribunal, parties and subject matter for his various proceedings to qualify as being instituted "frequently". But this argument has no merit when s 5 of the Act is read properly. All that needs to be counted under s 5 to conclude that a putative vexatious litigant is "frequently" initiating "proceedings" is that what the litigant initiates is "proceedings" as defined. There is no requirement that what is being counted have common parties, subject matter or tribunal. The count is at large. There is no substance to this point. This conclusion is not altered by the terms of s 5(2).

1. Mr Altaranesi pointed out that neither the ADT nor the IRC had sought to restrain his conduct of proceedings within those courts and tribunals as vexatious. He argued therefore that this Court should not find that he had instituted "vexatious proceedings" when each of those courts and tribunals had not assessed the proceedings that he had commenced as vexatious.

1. There are several answers to this argument. This Court is not in any way bound by the actions of those other courts and tribunals in considering whether or not to make s 8(7) orders under the Act. Moreover, this Court through the wider perspective of the Attorney's action in this case, surveying as it does a large number of proceedings, has a better perspective than each of those other courts and tribunals on whether individual proceedings are vexatious. This Court is able to judge whether many unmeritorious proceedings in respect of the same subject matter have also been commenced by the same litigant. That is not an enquiry open to the ADT or the IRC in an individual case. This point also has no substance.

1. Mr Altaranesi also said that he had set out to show how a number of public authorities, such as the Area Health Service, were misapplying the Privacy Act and the Health Records Act and the policies made and enforced under these Acts. He put detailed argument with respect to showing the various errors of law they were alleged to have been made. He was disappointed that these tribunals in the public interest had not decided all these points he had argued and which he repeated in his written submissions. But there are several answers to this point. Most of Mr Altaranesi's arguments were either put up and rejected or were not dealt with as they were not essential to his litigation. Moreover this Court cannot possibly review all the decisions made on which Mr Altaranesi was unsuccessful. In limited cases the Court on an application for s 8(7) orders under the Act may perhaps have to examine the correctness of a decision of an inferior court. But I see nothing of any of the decisions the subject of analysis in these proceedings that would warrant undertaking examination here. As was pointed out to him in argument, Mr Altaranesi needs to accept that Courts do not have to decide every argument that he puts up if it is not critical to the reasoning to the result reached.

A "Sunset Clause"

1. The Court raised with the parties whether, if s 8(7) orders were to be made under the Act a "sunset" clause of some five years duration should be included as a term of the order. Such a sunset clause would automatically discharge the s 8 orders 5 years after they were made. The practical effect of such a clause is that it would reverse the onus of acting after five years and place it back on the Attorney rather than on Mr Altaranesi. Five years was suggested as a possible period for such an order because it reflects a kind of "cooling off" period of just a little more time than that Mr Altaranesi has already occupied with his vexatious proceedings.

1. The Attorney opposed the placing of such a condition on the orders, which could be authorised under s 8(7)(c). Mr Altaranesi supported it. The idea of including a sunset clause in a s 8 order against Mr Altaranesi emerged in final submissions. A general consideration favouring such an order is that denying a person access to justice provided by the court system should not to be done lightly.

1. The other consideration favouring such a course is that the Court can and should take into account the educative effect of the making of the order itself over time. It can be reasonably inferred that if a s 8 order is made against Mr Altaranesi he would not be the same man in five years time as he is now. He may well have learnt from the order made and will be more restrained in the conduct of litigation. Indeed he hinted in final submission of that very possibility, saying that if he had been told about the Vexatious Proceedings Act earlier he may well have not have taken the course that he did.

1. But the Attorney's counter arguments are ultimately more persuasive. The Attorney argued that the same effect can be achieved under the Act by a person subject to a s 8 order making an application under s 9 of the Act to vary or set aside the order. In my view that is the safest course here for several reasons. First, having analysed all the cases in which Mr Altaranesi has been involved in the last 3 plus years, and having read his evidence and submissions in the present case, I am not convinced that the Court should infer that Mr Altaranesi will necessarily be reformed by the experience of working under s 8(7) orders even for 5 years. His evidence and submissions in defence of the Attorney's application, show he is still: advancing strained or hopeless construction of legislation; re-arguing cases he has lost; relying upon material much of which is of little or no relevance to the present proceedings. Secondly, it is not too onerous to require Mr Altaranesi to apply to Court, under s 9 of the Act, to vary or set aside the orders. He may be able to convince a Court then, on suitable evidence, that he has changed. Section 9 does give him an opportunity to release himself from these orders, if there is demonstrable change over time.

1. Thirdly, Mr Altaranesi will not wholly be denied access to the Courts upon the making of s 8(7) orders. If he has a meritorious future case which is not vexatious, a Court can give him leave to bring it, possibly on conditions, under s 16 of the Act.

The Extent of the Stay on the Conduct of Existing Proceedings

1. Mr Altaranesi is currently involved in AVO proceedings with a neighbour (see Exhibit 5). These proceedings are unrelated to any of his litigation in relation to the Area Health Service. The neighbour has brought an AVO application against Mr Altaranesi, who has brought an AVO application against the neighbour. The contest between them relates to their recent interaction as neighbours.

1. It seems to me these proceedings at first instance before the Local Court should be allowed to continue and should be exempted from the stay of current proceedings. In these Local Court AVO proceedings: Mr Altaranesi is partly in the position of a defendant; the proceedings involve his and his family's personal security at home; the proceedings do not involve the subject matter of the proceedings that have caused Mr Altaranesi to litigate against the Area Health Service; and, Mr Altaranesi has explained sufficient of the facts alleged in these AVO proceedings for the Court to allow them to continue, at least at first instance, to finality. But if Mr Altaranesi is unsuccessful in these proceedings at first instance, he will need to seek leave under s 14 of the Act before instituting an appeal or another AVO proceeding.

Conclusions and Orders

1. In the result I have decided to grant the orders the Attorney seeks under s 8(7) of the Act, against Mr Altaranesi. I am satisfied that he has instituted and conducted vexatious proceedings frequently in a period of a little over three years. The circumstances of these actions warrant the Court exercising its discretion to make s 8(7) orders.

1. The only qualification to these orders is in relation to the width of the stay on current proceedings. Mr Altaranesi will be permitted to conduct the AVO proceedings at first instance against his neighbour. But of course he may not appeal from these proceedings or bring any fresh AVO proceedings against this neighbour or anyone else without a grant of leave under s 16 of the Act.

1. In the result the Attorney has been successful. Normally costs would follow the event and an order for costs would be made against the defendant. If the defendant seeks a different order I will hear argument this afternoon at 3.30pm, so these proceedings can conclude today.

1. Accordingly, the Court orders that:

(1) Except to the extent provided for in Order (3), all and every part of proceedings brought by the defendant in New South Wales are stayed;

(2) The defendant is prohibited from instituting proceedings in New South Wales without leave of the Court;

(3) The defendant may continue to conduct the proceedings in the Local Court identified in Exhibit 5 up to judgment or other resolution at first instance;

(4) Direct the parties to put oral submissions in relation to costs at 3.30pm today.

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The Schedule

Decision last updated: 15 February 2013