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:

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.

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.

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.

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.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] VSC 19
Decision Date: 21 January 2013

CaseChat Overview and Summary

The Supreme Court of Victoria dealt with an application by the Attorney-General for the State of Victoria against Peter Alexander Gargan. The Attorney-General sought a declaration that Gargan was a vexatious litigant under s 21 of the Supreme Court Act 1986 (Vic) and an interlocutory injunction preventing Gargan from commencing legal proceedings without leave. Gargan did not appear or provide any evidence. The court had to determine whether the Attorney-General established a prima facie case that Gargan habitually instituted vexatious legal proceedings and whether the balance of convenience favoured granting an interlocutory injunction.

The key legal issue was whether the Attorney-General demonstrated that Gargan had a history of instituting vexatious legal proceedings without reasonable grounds. The court found that Gargan had commenced at least 12 proceedings in Victorian courts and 30 in other jurisdictions, and had been declared a vexatious litigant in three Australian jurisdictions. The court accepted the evidence that Gargan instituted proceedings in his own name or as a co-plaintiff on behalf of third parties without any legal or equitable interest. The court was satisfied that the Attorney-General established a prima facie case that Gargan habitually instituted vexatious legal proceedings.

The court then considered whether the balance of convenience favoured granting the interlocutory injunction. Given Gargan's extensive history of vexatious litigation, the court was satisfied that granting the injunction was appropriate to prevent further unwarranted legal proceedings. The court also made orders regarding service of documents on Gargan by email and set timetables for the proceeding. The court restrained Gargan from commencing legal proceedings without leave and ordered that documents could be served by email. The costs were reserved.

Orders