Attorney-General (Vic) v Gargan

[2013] VSC 19

Revised
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6196 of 2012

ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Plaintiff
v
PETER ALEXANDER GARGAN	Defendant

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JUDGE:	FERGUSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 January 2013
DATE OF JUDGMENT:	21 January 2013
CASE MAY BE CITED AS:	Attorney-General (Vic) v Gargan
MEDIUM NEUTRAL CITATION:	[2013] VSC 19

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms C Harris	Victorian Government Solicitor
For the Defendant	No appearance

HER HONOUR:

1. The Attorney‑General for the State of Victoria has brought proceedings for an order pursuant to s 21 of the Supreme Court Act 1986 (Vic) declaring the defendant, Peter Gargan, a vexatious litigant. Pending determination of that matter, the Attorney‑General has sought an interlocutory injunction against Mr Gargan prohibiting him from commencing any legal proceedings in this court, an inferior court, or a tribunal constituted or presided over by a person who is a barrister and solicitor of this court without first seeking and obtaining the leave of the court, inferior court or tribunal.

1. The Attorney‑General also seeks orders as to the method of service of any such orders made and the service of future documents in the proceeding and also timetabling orders for the delivery of affidavit material and setting the matter down for trial.

1. Absent an application to have a person declared a vexatious litigant, the Court does not have power to restrain a person from commencing new proceedings without leave of the Court.[1]  However, where an application has been made to declare a person a vexatious litigant, the Court has power to restrain that person from commencing new proceedings pending determination of the principal application.[2]  The power to grant an interlocutory injunction may be exercised when the Court is satisfied that the party seeking the injunction has a prima facie case for the relief that they seek and that the balance of convenience favours the granting of an injunction.[3]

   [1] Commonwealth Trading Bank v Inglis (1974) 131 CLR 311, Richards v John Mackinnon Grant & Allendale Private Hospital Pty Ltd (in liq) [2006] VSC 387.

   [2] The Attorney-General for the State of Victoria v Bahonko [2011] VSC 244 – the orders made at first instance were varied slightly on appeal, but otherwise the appeal was otherwise dismissed: Bahonko v The Attorney-General for the State of Victoria [2011] VSCA 208. See also Wentworth v Attorney General for New South Wales (1988) 12 NSWLR 191.

   [3]Australian Broadcasting Corporation v O’Neill (2006) 227 CLR 57.

1. The Attorney relies on two affidavits of Stephen Joseph Lee and an affidavit of Rodney James McInnes who are both lawyers in the Victorian Government Solicitor's office.  Mr Gargan did not appear on the application and no evidence was filed by him. 

1. The affidavit material discloses that Mr Gargan has commenced at least 12 proceedings (including appeals) in various Victorian courts and at least 30 proceedings in other jurisdictions.  Mr Gargan has been declared a vexatious litigant in three Australian jurisdictions. Mr Lee's evidence is that:

Over the course of Mr Gargan's extensive litigation history, he has developed a modus operandi whereby he institutes proceedings in his own name or as a co‑plaintiff on behalf of third parties against whom he perceives a wrong has been committed.  He has no legal or equitable interest to justify his involvement in these proceedings. 

1. On the basis of the unchallenged evidence as it presently stands, I am satisfied that the Attorney has established a prima facie case that Mr Gargan has “habitually, persistently and without any reasonable ground instituted vexatious legal proceedings” in various Victorian courts within the meaning of s 21 of the Supreme Court Act. 

1. As I have said, Mr Gargan did not appear on this application. It seems from the affidavit material that he is presently located in Laverton, Western Australia.  Although difficulties were encountered, he has now been served with the proceedings and supporting affidavits.  Mr Gargan sent an email from the Victorian Government Solicitor's Office (“VGSO”) stating, amongst other things, that he would not be entering an appearance.  There has been subsequent correspondence between Mr Gargan and the VGSO by email.

1. I am satisfied that Mr Gargan has notice of the proceedings, the application for the interlocutory injunction and the application for service of documents in the proceeding on him by email.  I am also satisfied that if documents are sent to him by email, he will receive them at the email address to which correspondence has been sent already.

1. In the circumstances, given Mr Gargan's remote location at present and the indication that he may move from that location, I am of the opinion that it is appropriate to order that all future documents in this proceeding may be served upon him by email at [email protected].

1. In relation to the time for service, I will hear counsel as to this.  My preliminary view is that although the Attorney sought to have the documents deemed to be served within one hour after they are sent by email, it may be more appropriate, in light of the evidence before the court, that they be taken to be served within 24 hours after they are sent as some of the email correspondence has been responded to in that time frame.

1. In making such orders, I am cognisant of the requirements of the Civil Procedure Act 2010 (Vic) and the Court's powers under that Act and the Rules to dispense with the requirement for personal service.

1. I will order that: 

1.        The Defendant by 4 pm on 4 March 2013 file and serve any affidavit on which he seeks to rely.

2.        The Plaintiff by 4 pm on 25 March 2013 file and serve any affidavit in reply.

3.        The proceeding be fixed for trial on a date to be set, such date not to be before April 2013 with the trial to be given such priority as is possible having regard to the nature of the proceeding.

4.        Until the determination of this proceeding or further order, the Defendant be and is restrained from commencing or continuing any legal proceedings in this Court, an interior court or a tribunal constituted or presided over by a person who is a barrister and solicitor of this Court without first seeking and obtaining the leave of the Court, inferior court or tribunal.

5.        Pursuant to rule 6.10 of the Supreme Court (General Civil Procedure Rules) 2005, service on the Defendant of the orders made today and any future orders or other documents in this proceeding may be effected by electronic transmission to the defendant at his email address, [email protected] and service on the Defendant is taken to be effected 24 hours after it is sent.

6.        As soon as practicable, the Plaintiff serve on the Defendant a copy of the transcript of the hearing on 21 February 2013.

7.        Liberty to apply on 48 hours' written notice; and

7.        Costs reserved.