Attorney-General (Vic) v Pham
[2014] VSC 311
•3 July 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2013 04839
| ATTORNEY-GENERAL FOR THE STATE OF VICTORIA | Plaintiff |
| v | |
| LE TUAN PHAM (also known as CHARLES PHAM) | Defendant |
---
JUDGE: | BONGIORNO JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2014 | |
DATE OF JUDGMENT: | 3 July 2014 | |
CASE MAY BE CITED AS: | Attorney‑General (Vic) v Pham | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 311 | |
---
Practice and Procedure – Vexatious litigant – Declaration of person as vexatious litigant – Criteria – ‘Vexatious’ – Opportunity to be heard – Misconduct in Court amounting to contempt in the face of the Court – Supreme Court Act 1986, s 21 – Vexatious Proceedings Act 2014, ss 29 and 91.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C M Harris | VGSO |
| For the Defendant | In person |
TABLE OF CONTENTS
The Trial
Jurisdiction
The Attorney-General’s case
Proceedings at VCAT
Proceedings in the Trial Division of the Supreme Court
Court of Appeal
Conclusion
Contempt of Court
Vexatious Proceedings Act 2014
Declaration and orders
APPENDIX A
HIS HONOUR:
By an originating motion filed 17 September 2013, the Attorney-General of Victoria applied to this Court, pursuant to s 21(1) of the Supreme Court Act 1986, for an order that Le Tuan Pham (also known as Charles Pham) be declared a vexatious litigant and for ancillary orders pursuant to s 21(3) of the Act. The Attorney-General alleges that Mr Pham has habitually, persistently and without any reasonable grounds instituted legal proceedings against a number of persons over a period of time in the Court of Appeal, this Court and the Victorian Civil and Administrative Tribunal (VCAT).
In support of his application, the Attorney-General relied upon a number of affidavits, the principal one of which was an affidavit by Mr Stephen Joseph Lee, a solicitor at the Victorian Government Solicitors Office (VGSO). Mr Lee deposed to the contents of a large number of court and tribunal files relating to proceedings brought by Mr Pham against various respondents. He also deposed to the fact that, on 19 January 2009, Mr Pham had been found by a senior member of the Commonwealth Administrative Appeals Tribunal (AAT) to have brought a frivolous and vexatious proceeding, as a result of which he was prohibited, without leave of the AAT, from making any subsequent applications under the Social Security Act 1991 (Cth) or the Social Security (Administration) Act 1999 (Cth).
Mr Lee deposed that his research showed that, since 2004, Mr Pham had commenced or sought to commence 16 proceedings before VCAT, 11 before the Trial Division of the Supreme Court and six before the Court of Appeal. He had also commenced proceedings in federal jurisdiction; five in the AAT, one in the Federal Magistrates’ Court, 13 in the Federal Court and three in the High Court.
Following the filing of the originating motion commencing this proceeding, on 15 October 2013 the Attorney-General sought and obtained an order for substituted service on Mr Pham from Daly AsJ. This order deemed service by email to a particular email address and/or service by registered post to a particular post office box to be good and sufficient service for the purposes of this application. Affidavits of the VGSO solicitor acting for the Attorney-General, Ms Andrea Helen Robinson, affirmed on 5 October 2013, 29 October 2013 and 5 March 2014, deposed to the facts upon which Daly AsJ’s orders were made and that the Attorney-General had complied with those orders.
Ms Robinson’s affidavit of 29 October 2013 also deposed to matters concerning the two books of documents exhibited to Mr Lee’s affidavit. Because of their bulk, these exhibit books were not sent by email but were sent, in hardcopy, by ‘signature on delivery’ post which, according to Ms Robinson’s affidavit, has replaced registered parcel post. They were delivered to the St Albans post office box specified in Daly AsJ’s order on 16 October 2013, but were not collected by Mr Pham. They were subsequently returned to the VGSO. Ms Robinson’s affidavit of 5 March 2014 deposed to her having informed Mr Pham, by telephone, that he could collect copies of the exhibit books from the VGSO or that she would bring them with her to court on 5 March 2014, the day this proceeding was listed for trial. Mr Pham took no step to obtain the exhibit books. Counsel for the Attorney-General submitted that the files and all other relevant documents were served in the manner provided by Daly AsJ’s order and that Mr Pham had had ample time to obtain, read and answer them had he wished to do so. The affidavits of Ms Robinson, which were not disputed, amply demonstrate the correctness of that submission.
On 29 October 2013, directions for the further conduct of the proceeding were given by Emerton J. Those directions required Mr Pham to file and serve any affidavit on which he relied in answer to the Attorney-General’s case by 26 November 2013. They also required the Attorney-General to file written submissions in support of his application by 31 January 2014. Her Honour ordered that the matter be set down for trial on a date not before February 2014, with such priority as possible having regard to the nature of the proceeding. By the same order, Emerton J restrained Mr Pham, until the determination of this proceeding, from commencing or continuing any legal proceedings in the Supreme Court, an inferior court or any tribunal constituted or presided over by a person who is a barrister and solicitor of this Court without seeking leave of the Court, inferior court or tribunal concerned. Liberty to apply was reserved.
On 10 February 2014, Mr Pham was advised by the VGSO that the trial of this application was fixed for 5 March 2014. In her affidavit of that date Ms Robinson deposed to conversations with Mr Pham concerning the proceeding, and service of documents and exhibit books.
The Trial
The Attorney-General’s application was heard on 5 March 2014 in the 14th Court. Ms C M Harris of counsel appeared for the Attorney-General and Mr Pham appeared in person. Almost immediately upon the commencement of the case, as counsel for the Attorney-General began her opening, Mr Pham became noticeably agitated and aggressive. He sought to raise irrelevant matters concerning himself and the Court. He was warned that if he did not permit counsel to address the Court uninterrupted he would be excluded from the courtroom, and that the case would continue in his absence. He refused to sit down or stop talking and referred to ‘some affidavits’ which he wished to use. As he had failed to comply with directions given by Emerton J that any affidavits be filed by 26 November 2013, initially, I rejected the single affidavit which he tendered. Subsequently, upon counsel for the Attorney‑General indicating that she had no objection either to that affidavit or another affidavit which Mr Pham proffered somewhat later in the hearing, both affidavits were ultimately permitted to be filed.
The first affidavit which Mr Pham wished the Court to consider was a three page document purportedly affirmed by him and dated (on the front page but not in the jurat) 5 March 2014. This document made reference to the Charter of Human Rights and Responsibilities Act 2006, sought an adjournment so that he could ‘read the files of the matter’, complained that he had not received notification of the trial until 3 March 2014, referred to the defence of ‘Our Constitution’ in florid language and concluded by referring to ‘murder by joint enterprise’. There was nothing in the affidavit which contested any of the evidence relied upon by the Attorney-General or raised any issues relevant to that evidence or indeed to the case at all.
The second affidavit which Mr Pham proffered somewhat later in the hearing was a 26 page affidavit purported to have been sworn on 8 March 2011[1] (sic) by someone called “James The Second, Rex” in a proceeding in the Magistrates’ Court between JAMES II REX (sic) as plaintiff and the Magistrates’ Court and the State of Victoria as defendants. The affidavit was accompanied by a “Request for Direction”; a Magistrates’ Court form, in a case in which a person named as JULIE HUYNH was the informant and “JAMES II REX (Francis)” was the defendant. The first page of the affidavit bears a version of the Royal Coat of Arms and attached to it were another version of a Coat of Arms and photographs of the Queen and other (unidentified people). Nothing in the document is of the slightest relevance to the issues in this proceeding. It is essentially an incoherent rambling discourse concerning Royalty, Australia’s constitutional history, the Royal Standard, Royal prerogatives, the Shrine of Remembrance and other apparently disconnected subjects. At no point did Mr Pham attempt to explain this bizarre document.
[1]Two and a half years before this proceeding was commenced.
When the Court initially rejected Mr Pham’s first affidavit he became more aggressive. He purported to “challenge” the jurisdiction of the Court and began talking about the Supreme Court seal, King James II and my appointment. It rapidly became apparent that unless he desisted from this behaviour it would be impossible for the trial to continue; an outcome he was clearly trying to bring about. He refused to resume his seat when asked and purported then to arrest me “… for conspiring to pervert and murder by joint enterprise for the murder of Mr Reza Berati and Mr Gong Ling Tong ‘How do you plead sir?’”
Following that outburst, I decided that if Mr Pham did not desist he should be removed from the courtroom and detained in custody pending a determination as to whether he should be charged with contempt in the face of the Court. I arranged for a police officer to attend. Pending the police officer’s arrival, Mr Pham continued a diatribe against the Court, involving the constitution, the Queen, the King and the “realm”.
After the arrival of the police officer, Mr Pham was warned on two further occasions that if he did not sit down and let counsel for the Attorney-General open her case, he would be arrested. Upon his refusal to cooperate, I directed the police officer to arrest Mr Pham and hold him in custody pending a decision as to whether he should be charged with contempt of court. He was then removed.
Counsel for the Attorney-General then continued her case in the absence of Mr Pham. About 25 minutes after he had been excluded from the courtroom, I ordered that he be brought back. Upon his return he was, again, given the opportunity (twice) to take part in the proceeding on condition that he permit counsel for the Attorney-General to put forward her case. He refused to do so. His demeanour was belligerent, threatening and openly aggressive. He was again removed. About 30 minutes later again, a similar and equally fruitless exercise was undertaken. During the time he was in court on this occasion an order was made permitting him to file his own affidavit to which he had earlier referred; counsel for the Attorney-General not objecting to his non-compliance with Emerton J’s earlier order.
Counsel for the Attorney-General completed her argument at about 3.24pm, whereupon Mr Pham was again brought to the courtroom and asked if he wished to say anything. He then produced the second affidavit to which he had referred earlier in the trial. That affidavit, which is discussed at [10] above was also admitted into evidence without objection by counsel for the Attorney-General. Mr Pham referred to the Coat of Arms on that affidavit and, after a tirade of nonsense concerning the seal of the Supreme Court and the realm in which the Court was residing and its jurisdiction, he again sought that the application before the Court be referred to the Court of Appeal … on the interpretation of the Charter”. This application and an application that I recuse myself were both refused. Mr Pham concluded by asserting that he had been denied due process and saying that he wanted an adjournment to notify the Equal Opportunity Commission and alert Attorneys‑General to notices of constitutional matters; presumably a reference to the notice required, in appropriate cases, by s 78B of the Judiciary Act 1903 (Cth). His application for an adjournment was refused, at which point he said, ‘Then I withdraw my consent’!
I have no doubt that Mr Pham’s behaviour in the courtroom was calculated to so disrupt proceedings as to make it impossible for the Court to hear and determine the Attorney-General’s application. Likewise, his repeated applications for the case to be referred to the Court of Appeals (sic) with references to the Charter of Human Rights and Responsibilities Act was a delaying tactic designed to thwart the progress of the case and defer or prevent its conclusion.
Jurisdiction
The statute conferring jurisdiction on this Court to declare a person a vexatious litigant may be traced back to the Vexatious Actions Act 1996 (UK). It first appeared in Victoria as s 33 of the Supreme Court Act 1928 in a narrative form, consistent with the legislative style of that time. It remained in that form until it assumed, generally, its present form as s 21 of the Supreme Court Act 1986. Subsequent amendments extended its ambit to tribunals and put beyond doubt that vexatious proceedings could be both civil and criminal, although that conclusion had already been reached by the Full Court of this Court In Re Millane[2] — the Court distinguishing an earlier English decision on the 1896 Act to the opposite effect.[3]
[2][1930] VLR 381.
[3]In Re Boaler [1915] 1 KB 21.
Sections 21(1) and (2) of the Supreme Court Act 1986 are in the following terms:
21 Vexatious litigants
(1)The Attorney-General may apply to the Court for an order declaring a person to be a vexatious litigant.
(2)The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has—
(a) habitually; and
(b) persistently; and
(c) without any reasonable ground—
instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.
Whether a proceeding is vexatious within the meaning of s 21(2) is a question of fact to be determined on an examination of the proceeding itself, the Court file, the decision, any reasons given for the decision and any other relevant details. As Ashley J said in Attorney-General for the State of Victoria v Horvath, Senior,[4] referring to a number of authorities:
It is one thing to know what the word “vexatious” means. It is another thing to apply s. 21(2) to the circumstances of a particular case. In the latter task the following matters are, according to the authorities, relevant: first, where an order has been made dismissing an action as frivolous or vexatious, or striking a pleading out, it is not for a court considering a s. 21 application to go behind the order and go into the merits of the argument as a court of appeal would do. Second, findings which are required do not depend on viva voce evidence or credibility of witnesses. The critical evidence is to be found in court files – documents, judgments, orders and reasons. For that reason, any hearsay material contained in an affidavit in support of an application, even though objectionable, should be treated simply as a distraction, and ignored. Third, the question is not whether the manner in which a proceeding is conducted is vexatious; it is whether, having regard to its nature and substance, it should be so characterised. Fourth, and this is a more general proposition with respect to s. 21, in determining whether the Attorney-General has made out a case, the Court is not concerned with a minute individual examination of each proceeding. It must consider the overall impression created by the number of proceedings, their general character and their results.[5]
[4][2001] VSC 269, at [28].
[5]References omitted.
See also Kay v Attorney-General;[6] Attorney-General for the State of Victoria v Bahonko;[7] Attorney-General for the State of Victoria v Weston;[8] Attorney-General v Skinner.[9]
[6](2000) 2 VR 436.
[7][2011] VSC 352.
[8][2004] VSC 314.
[9][2013] VSC 259.
The Attorney-General’s case
The Attorney-General alleged that since 2004 Mr Pham has commenced or sought to commence at least 33 proceedings (including appeals) in Victorian courts and tribunals. He alleged that 27 of those proceedings were vexatious within the meaning of s 21 and that a number of others should be considered as contextually relevant to the question as to whether the Court should make the declaration sought. The Attorney-General’s case also referred to a number of other proceedings initiated by Mr Pham in the High Court, the Federal Court, the Federal Magistrates’ Court and the Commonwealth Administrative Appeals Tribunal as background or context in which Mr Pham’s actions in Victoria may be examined.
It is convenient to deal with Mr Pham’s litigation history in this State generally on a case by case basis, and, in doing so, to determine whether each proceeding was or was not vexatious.
Proceedings at VCAT
On 4 July 2011, Mr Pham filed an application in the Residential Tenancies List at VCAT seeking “a restraining order and return of keys and possessions” in relation to a property in Clayton South. The respondent was Mr Tony Stephan. On 8 August 2011 Member Wiseman of that tribunal dismissed the application as it was “not a landlord/tenant dispute”. This proceeding, although not specifically relied upon by the Attorney-General as being vexatious, is relevant in consideration of the next two proceedings issued by Mr Pham against Mr Stephan.
On 18 July 2011 Mr Pham filed his second application against Mr Stephan in the same list (Residential Tenancies) for compensation “in respect of lost and damaged goods and the provision by him (Mr Pham) of IT work”. The same property as that referred to in the application described in [21] above was identified in this application. On 8 August 2011, Member Wiseman dismissed the application because, again, the matter was ‘not a landlord/tenant dispute’. It should be noted that, at the time this proceeding was initiated, the proceeding referred to in [21] above had not been determined. Thus, Mr Stephan was facing two proceedings on what appear to be the same or closely related disputes.
On 1 September 2011, Mr Pham filed yet another application against Mr Stephan in the Civil Claims List of VCAT. He claimed compensation for illegal eviction, services rendered and damage to property. A strike out application by the respondent was refused by Deputy President Lulham, who directed that the matter be listed as a “Small Claim”. On 27 March 2012, Member Kefford refused an application for an adjournment by Mr Pham because he had provided insufficient evidence to justify the adjournment.
The application was eventually heard on 20 March 2012. On 2 April 2012, Deputy President Lulham dismissed it, holding that Mr Pham had failed to make out a claim for any remuneration for services rendered, or for any damage to property. The Deputy President concluded that: “In the circumstances I have no hesitation dismissing the claim”.
The Attorney-General contends that the second and third of the three proceedings described above were vexatious. His argument in respect of the second, the application of 18 July 2011, must be accepted. Not only was the application issued in the wrong jurisdiction, it arose out of the same subject-matter as the first application and was issued whilst that application was still pending. No explanation has been forthcoming from Mr Pham as to why he issued this proceeding. It was unnecessary and was bound to be struck out as incompetent in due course, as was the first application. It should be characterised as vexatious. It clearly was.
The third application by Mr Pham against Mr Stephan, which was brought in the Civil Claims List eventually went to a hearing. The Attorney-General argued that an examination of Deputy President Lulham’s judgment reveals that no evidence was brought by Mr Pham capable of supporting the claims. He submits that the application was “groundless and untenable”.
It is clear that Deputy President Lulham heard evidence from both parties and dismissed Mr Pham’s claim. He said he had “no hesitation” in doing so. It was clearly groundless and untenable and appeared to have concerned the same dispute or a dispute closely related to that dispute sought to be litigated in each of the first two applications. It was a vexatious proceeding without any reasonable ground.
On 30 April 2012, Mr Pham applied to this Court for leave to appeal the order of Deputy President Lulham dismissing this application. As will be seen this was a frequent, if not automatic, response by Mr Pham to an unsuccessful piece of litigation. Reference will be made to this application for leave to appeal hereunder.
On 8 July 2011, Mr Pham filed an application against Ms Minh Nguyen in the Residential Tenancies List of VCAT. His claim was for “compensation and compliance” with the Residential Tenancies Act 1997 in respect of premises at 2/23 Virginia Street, Springvale. By an order made on 30 August 2011, Member Kefford recorded a settlement between Ms Nguyen and Mr Pham to the effect that Ms Nguyen would waive rent arrears and allow Mr Pham one month to vacate the premises, in default of which Ms Nguyen could apply for possession. This proceeding is not relied upon by the Attorney-General, of itself, as a vexatious proceeding but is relevant to subsequent proceedings referred to below which are so relied upon.
Notwithstanding that the order was made by consent and is recorded as having been in “full and final settlement”, on 26 September 2011 Mr Pham applied to the Supreme Court for leave to appeal the order of Member Kefford, which application will be referred to hereunder.
On 25 August 2011, Mr Pham filed an application in the Anti-Discrimination List of VCAT claiming discrimination on the grounds of disability and race against a number of Victoria Police members and the Ethical Standards Department of Victoria Police. His application alleges unparticularised conspiracies and breaches of duty of various kinds against a number of police officers concerned with an “illegal eviction” and “wilful damage to properties” as well as a failure to enforce the law or to investigate complaints. On 19 September 2011, Deputy President Coghlan struck out the application when Mr Pham failed to appear at a directions hearing.
On 23 September 2011, Mr Pham applied for the matter to be reinstated. He failed to appear at a hearing of that application on 7 November 2011 and the application was refused by Deputy President Coghlan. Following a further application, Mr Pham’s complaint was conditionally reinstated by order of Senior Member Nihill on 20 February 2012, but Mr Pham failed to fulfil the required condition by its specified date. The respondents brought a strike out application under s 75 of the VCAT Act 1998, which was listed for hearing on 31 August 2012. On that date, Senior Member Megay struck the application out pursuant to s 78(1)[10] of the VCAT Act although she did not specify which of the subsections applied. As the record notes that there was no appearance by Mr Pham before Senior Member Megay it might be inferred that the Senior Member applied s 78(1)(g), although there were a number of other subsections which probably applied, having regard to Mr Pham’s conduct of the matter generally.
[10]Section 78(1) of the VCAT Act permits the tribunal to strike out a proceeding if a party is conducting the proceeding in a way that unnecessarily disadvantages another party. Its subsections refer to particular acts and omissions.
Mr Pham persisted in this application. He sought a rehearing and provided a medical certificate dated 30 August 2012 that stated that he had a medical condition and was unfit to attend work from 30 August 2012 to 1 September 2012 (sic). On 6 September 2012, Senior Member Megay refused the application for reinstatement and gave detailed reasons for doing so. Those reasons rehearse the sorry history of this application and another, against a Deputy Prothonotary of this Court, decided with it, described in [41] below. Both were refused.
The Attorney-General submitted that this proceeding was vexatious. Written submissions on his behalf refer to Senior Member Megay’s finding that she regarded the proceeding as being conducted in a way that caused unnecessary disadvantage to another party, thus justifying her not reinstating Mr Pham’s application after it was struck out by her on 31 August 2012. Having regard to the provisions of s 78 of the VCAT Act, Senior Member Megay was undoubtedly correct in reaching the decision she did. But her finding does not, of itself, establish that the proceeding was vexatious for the purposes of s 21(2) of the Supreme Court Act 1986. Ms Megay was concerned with the manner in which Mr Pham was conducting the proceeding. The question before this Court is not whether the manner in which the proceeding is conducted was vexatious but whether, having regard to the proceeding, it should be characterised as having been, itself, vexatious.[11]
[11]Re Langton [1966] 1 WLR 1575 at 1578 per Lord Parker CJ; Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 485; Re Vernazza [1960] 1 QB 197 at 208; A‑G v Wentworth (1988) 14 NSWLR 481 at 492.
Mr Pham’s application on its face makes seven extremely wide and general allegations. Even allowing for the lack of formality which VCAT procedure allows, it is impossible to begin to understand what Mr Pham was alleging. This is so even though the form upon which he makes his complaint contains the following direction:
If you are making an application alleging discrimination, it is important to explain how you were discriminated against because of the attribute(s) you have selected above.
The attributes alleged by Mr Pham as those upon which he was discriminated against are “disability” and “race”. There is no connection between any of his allegations and either of those two attributes. Further, whilst the mere fact of his not having advanced his complaint in accordance with VCAT procedures may not be sufficient, of itself, to establish that the complaint was vexatious, his unexplained failure to attend VCAT hearings and, of course, his failure to put any relevant material before this Court invite and permit the conclusion that his complaint was devoid of merit and lacking in substance. I so conclude. For these reasons it was vexatious.
Subsequently, Mr Pham applied for leave to appeal to this Court in respect of the order of Senior Member Megay of 6 September 2012. Reference will be made to this proceeding below.
On 1 September 2011, Mr Pham filed an application against Ms Minh Nguyen in the Civil Claims List at VCAT alleging that she had breached the Residential Tenancies Act and acted unconscionably in endangering lives due to an uninhabitable garage at Virginia Street, Springvale. This application was filed two days after Member Kefford had recorded a settlement (described at [29] above) between Mr Pham and Ms Nguyen concerning the same premises. On 11 October 2011, Member Barker struck out the application, with a right reserved to Mr Pham to apply for its reinstatement, due to his ‘having not complied with requests for further information’. It appears never to have proceeded further. In the circumstances and in the absence of any explanation from Mr Pham as to the situation created by this application it must also be characterised as vexatious.
On 16 December 2011, Mr Pham filed an application against Ms Nguyen in the Residential Tenancies list at VCAT for an urgent interim injunction/order that he be allowed entry to the premises at Virginia Street referred to above to access his goods. By an ex parte order made on the same day, Member Kefford restrained Ms Nguyen from obstructing access to the premises for Mr Pham to remove his goods and personal documents and otherwise adjourned the hearing to a date to be fixed.
On 18 January 2012, Member West dismissed the application upon Mr Pham’s non-appearance at the hearing scheduled for that day. This proceeding is not relied upon by the Attorney-General as a vexatious proceeding but is relevant to the context in which his many other proceedings against Ms Nguyen and others were instituted.
On 25 January 2012, Mr Pham filed an application in the Anti-Discrimination List of VCAT claiming discrimination on the grounds of disability, employment activity, political belief and race (among other things) by Robert Shade[12] (sic), Deputy Prothonotary of the Supreme Court, in refusing to grant him a fee waiver in respect of an application by Mr Pham to the Court.
[12]The Deputy Prothonotary’s name is Robert Schade.
On 27 February, VCAT wrote to Mr Pham, rejecting his application on the grounds that it lacked jurisdiction to deal with it. Undaunted, again Mr Pham wrote to VCAT indicating that he required the Registrar to refer the application to a tribunal for review of this rejection pursuant to s 71(2) of the VCAT Act. A hearing was set down for 19 March 2012. Mr Pham was so advised. However, on that date he failed to appear, without explanation. Senior Member Nihill dismissed Mr Pham’s application for review.
On 27 July, Senior Member Nihill made an order, pursuant to s 120 of the VCAT Act, that his (own) order of 19 March 2012 be reviewed. A hearing of that review was set down for 31 August 2012. Mr Pham was so advised. However, on 31 July, he wrote to the tribunal complaining that it had listed this matter and another on the same day and demanded that it be “pushed back a month”. Further correspondence ensued and on 30 August 2012, Mr Pham emailed the tribunal attaching two medical reports attesting, as he put it, to a chronic heart condition. In her decision refusing Mr Pham’s application, Senior Member Megay noted that neither of these reports mentioned a chronic heart condition, although his medical practitioner considered that due to multiple medical problems it ‘would be in Mr Pham’s best interest if he could be represented by another person in court or tribunals’. As no current medical certificate certifying his inability to attend had been provided and as Mr Pham failed to appear on 31 August 2012, Senior Member Megay struck out his application for reinstatement.
On 3 September 2012, Mr Pham, yet again, sought a rehearing. His application was again refused by Senior Member Megay by order dated 6 September 2012 for which she provided extensive and compelling reasons.[13]
[13]In these reasons Senior Member Megay dealt with this matter and that described at [31] above concerning Victoria Police.
The attempt by Mr Pham to file this application at VCAT, which was unsuccessful, does not constitute the institution of a proceeding. However, the application for the review of that refusal is probably a relevant institution of a proceeding.[14] This proceeding bears a resemblance to that which Mr Pham brought against the Victoria Police, described in paragraph [31] above. Mr Schade, who was a Deputy Prothonotary of this Court, is immune from suit when acting in good faith in the execution of his functions.[15] The allegations in Mr Pham’s application (curiously expressed in the first person plural)[16] do not extend to an allegation that Mr Schade acted otherwise than in good faith, although the application makes a number of allegations against him. It assert(s) that, in some unstated way, Mr Pham’s medical condition has been exacerbated and that he had to urgently find accommodation without finance. How this could be related to a refusal by Mr Schade to grant Mr Pham a fee waiver is not explained, either in the application itself or by material put before this Court.
[14]Jones v Cusack (1992) 109 ALR 313 at 315, per Toohey J; Attorney-General v Skinner [2013] VSC 259 at [60] per Beach J.
[15]Section 24F(f) Supreme Court Act1986.
[16]As the transcript shows, and I observed, Mr Pham appears to have no difficulty whatsoever in the use of English. Material before the Court demonstrates that he was educated to tertiary level at the University of Queensland (dentistry) although he did not graduate.
When Mr Pham’s failure to appear on a number of occasions is viewed in light of these facts, a conclusion that this is yet another vexatious proceeding is inevitable. It was groundless and doomed to fail.
On 4 October 2012, Mr Pham applied for leave to appeal to this Court against Senior Member Megay’s order of 6 September 2012. This application will be referred to subsequently.
On 27 February 2012, Mr Pham filed an application against Ms Minh Nguyen in the Residential Tenancies List at VCAT claiming “compensation for conspiracy to cause injury, inconvenience and court costs”. This application was dismissed on 20 March 2012 by Member Kefford who said that Mr Pham had not appeared and that, in any event, the application did not disclose any appropriate basis upon which orders might be made.
Mr Pham persisted. On 20 March 2012, he sought a review of Member Kefford’s decision on the ground that he had been late for the hearing due to ill-health. This application was dismissed on 1 May 2012 by Member Roland because Mr Pham, once again, failed to appear. On 2 May, he applied for leave to apply for a review. On the same day, Member Barker granted Mr Pham leave to apply for a second review and by order dated 15 May 2012 Member Wentworth, on that review, granted Mr Pham’s application for review.
A rehearing was held on 17 July 2012 and 30 August 2012 before Member Wentworth. She dismissed the application by order dated 13 December 2012. Member Wentworth gave cogent reasons for her decision which were published on that day. In paragraph 35 of her reasons she said:
There was no doubt that Mr Pham in his claim and in his submissions was seeking to re-agitate matters heard and determined by the tribunal in earlier proceedings including by the November possession order and in respect of which leave to appeal had been refused. He also sought to re-open the claims of compensation made prior to the 30 August order[17] which records the settlement, and to which leave to appeal had been refused.
[17]The order referred to in [29] above.
On 14 December 2012, Mr Pham filed yet another application for leave to apply for a review of Member Wentworth’s order. On the same day, Deputy President Lulham dismissed the “purported application” stating that Mr Pham had attended the rehearing before Member Wentworth the day before and could therefore not seek a review of that order.
Mr Pham’s application of 27 February 2012 against Ms Nguyen was an attempt by him to re-litigate some or all of a long-running dispute with her, his former landlord. It alleged two separate conspiracies; the second of which involves Ms Nguyen in a conspiracy to deprive Mr Pham of possession of his rented premises. But Mr Pham’s dispossession was as a result of a VCAT order of 8 November 2011 in respect of which leave to appeal had been refused by this Court. It also sought to re-open claims for compensation made prior to 30 August 2011, which had been resolved by consent orders made on that day. Mr Pham’s application had been recognised as early as 20 March 2012 by VCAT Member Kefford as not disclosing any proper basis upon which orders might be made. It was clearly vexatious.
In submissions before this Court, the Attorney-General raised the question as to whether the review applications made by Mr Pham each time his application of 27 February 2012 was dismissed might also constitute vexatious proceedings having regard to their lack of proper foundation. There is support for this argument, at least by analogy with the institution of appeals doomed to fail. However, there would appear to be no need to determine this matter definitively in this case. It is sufficient for present purposes to conclude that the original application of 27 February 2012 was itself vexatious.
Yet again, on 11 January 2013, Mr Pham applied for leave to appeal the order of Member Wentworth of 13 December 2012 and the order of Deputy President Lulham of 14 December 2012 to this Court. These matters will be referred to again hereunder.
Eleven of Mr Pham’s VCAT applications, somewhat tediously described above, were generally related to tenancy dispute(s) or purported tenancy dispute(s) involving Mr Stephan and Ms Nguyen and alleged discriminatory behaviour by police and other government officials. However, between March and July 2012, Mr Pham also instituted five other proceedings at VCAT. Three were brought in the Anti-Discrimination List (6 March 2012 against Dimity Jones and Peter Rachele — estate agents who acted for Ms Nguyen — for discrimination; 3 April 2012 against the Attorney-General and the Department of Justice for alleged misconduct of VCAT members; 18 May 2012 against officers of Dandenong City Council for conspiracy to cause injury and more). One was in the Civil Claims List (3 April 2012 against officers of Dandenong City Council for conspiracy to cause injury and more). One was in the Residential Tenancies List (21 September 2012 against Stan Young for compensation under the Residential Tenancies Act).
None of these applications, which need not be described any further here, had any more merit than most of those which are described more fully above. All were struck out or dismissed as were all or almost all applications for review, rehearing or reinstatement in respect of them. The first of them was dismissed for total lack of any evidence, the second was rejected for lack of jurisdiction and the third was dismissed as being “manifestly hopeless”, “misconceived”, “lacking in substance” and “made on no proper basis”. The fourth application, against the Dandenong City Council officers, was dismissed for Mr Pham’s non-attendance[18] (but was described, in any event, as “manifestly hopeless” and “misconceived”). The fifth application, against Mr Young, was ultimately dismissed on the ground that the tribunal was not satisfied that the tenancy was “a rooming house agreement, but was rather a share house agreement between tenants”. It was yet another hopeless application. I am satisfied that all of these applications should be characterised as being vexatious. There were no reasonable grounds for the institution of any of them.
[18]A situation not uncommon in many of the applications brought by him.
Proceedings in the Trial Division of the Supreme Court
Between 2007 and 2013, Mr Pham brought, or sought to bring, 11 proceedings in the Trial Division of this Court. All except the first, in 2007, were brought between September 2011 and March 2013 and were attempts by him to impugn various VCAT decisions resolved adversely to him, as already described.
On 17 December 2007, Mr Pham attempted to commence a proceeding in this Court against the Dean of the Dental School of the University of Queensland and six other defendants. His claim was for “unlawful racial discrimination” for which he claimed damages in the sum of just over $100 million. Byrne J, in the Practice Court, refused to direct the Prothonotary, who had rejected the writ, to accept it for filing. Although his Honour gave no reasons for his refusal to allow this action to be commenced, it is clear that the purported statement of claim lodged by Mr Pham failed to disclose a cause of action. It was, in the circumstances, a proceeding doomed to failure. As no proceeding was, in fact, commenced by Mr Pham, this case is irrelevant to the matter now before this Court. In any event, the Attorney-General does not seek to rely on it for the purposes of s 21(2). It may be relevant to a general propensity in Mr Pham to issue baseless proceedings but, having regard to the abundance of evidence to that effect before the Court, it can be disregarded for present purposes.
On 26 September 2011, Mr Pham filed an originating motion (dated 21 September 2011) against Ms Nguyen and Mr Bark Nguyen seeking stay orders pending the hearing of a leave to appeal application in respect of an order of VCAT of 30 August 2011. On 17 October 2011, Randall AsJ refused leave to appeal because the 30 August order “… was by consent and an appeal is not an appropriate vehicle to set the same aside even if grounds (other than mere assertion) could be demonstrated”. He also determined that “… the proposed notice fails to identify a relevant error of law”. This proceeding was hopeless and doomed to fail. It must be characterised, in the circumstances, as being vexatious. There were no reasonable grounds for its being instituted.
On 29 November 2011, Mr Pham commenced another proceeding by originating motion against Ms Nguyen seeking to appeal an order made by Member Cremean at VCAT on 8 November 2011 by which Ms Nguyen had been granted possession of her premises, the subject of a long-running dispute with Mr Pham. Although irregular in form, it appears to have been treated as an application for leave to appeal.
On the same day, the matter came before Cavanough J who summarily dismissed Mr Pham’s application. He ordered Mr Pham to pay costs. Although there are no reasons for Cavanough J having dismissed the application extant, it was submitted by the Attorney-General that because of the inclusion of extravagant and apparently irrelevant claims concerning police brutality the application was, itself, vexatious.
Although in Mr Pham’s proposed Notice of Appeal there are some matters which might possibly raise questions of law, if properly expressed and if they have any substance, their relevance is certainly suspect and probably non‑existent. In the absence of any explanation to this Court by Mr Pham, this application must, like so many others, be regarded as vexatious. It ought not to have been instituted.
On 30 April 2012, Mr Pham commenced a proceeding in this Court against Mr Tony Stephan concerning VCAT orders made on 2 April 2012. On 8 June 2012, Zammit AsJ granted Mr Pham leave to file and serve an amended proceeding by 17 July. Her Honour considered that “the originating motion as currently drafted is meaningless and therefore legally incompetent”.
Mr Pham did not take advantage of that order. No further documents were filed. It is clear that the proceeding, as instituted, was bound to fail if only because it was, as Zammit AsJ said, “meaningless”. It was vexatious. There were no reasonable grounds for its commencement.
On 11 July 2012, Mr Pham commenced a proceeding by originating motion in this Court naming the Department of Justice and the Attorney-General of Victoria as defendants. Following an amendment to the originating motion permitted by Zammit AsJ, Lansdowne AsJ dismissed the proceeding and ordered Mr Pham to pay the defendants’ costs. Her Honour found that “the amended originating motion fails to disclose any question let alone an arguable question of law…”.
Mr Pham sought to appeal Lansdowne AsJ’s order, which appeal was dismissed by Dixon J, with costs. His Honour said that Mr Pham had
… identified no claim with any real prospect of success. No error by VCAT was identified… The Associate Judge had sought to identify from the morass of scandalous and baseless allegations whether there was any tenable claim that ought to be permitted to proceed.
Yet again undaunted, Mr Pham appealed Dixon J’s dismissal of his appeal to the Court of Appeal to which reference will be made hereunder.
The confused and confusing mess which this case presents, is more than adequately (and patiently) described by Dixon J in his judgment dismissing (with costs) Mr Pham’s appeal from Lansdowne AsJ on 19 February 2013. There is no need for further reference to it. The application by originating motion was undoubtedly vexatious, as was Mr Pham’s institution of an appeal of Lansdowne AsJ’s order to Dixon J. There were no proper grounds for the institution of either of them.
On 4 September 2012, Mr Pham commenced a proceeding against two employees of a Dandenong estate agency, Dimity Jones and Tony Rachele, with respect to a VCAT order made by Member Grainger on 3 August 2012. Ms Jones and Mr Rachele had (at some time) acted for Ms Nguyen. On 1 October 2012, Mukhtar AsJ dismissed the proceeding. His Honour observed:
… the originating motion and the proposed Notice of Appeal are not intelligible … the Court did all it could to try and elicit from Mr Pham the basis on which he was contending that the decision here was impeachable on a question of law. I am afraid to say nothing meaningful was put forward, except a most unpleasant and disrespectful attack on this court.
On 2 October 2012, Mr Pham filed a Notice of Appeal against the order of Mukhtar AsJ. He subsequently filed a Notice of a Constitutional Matter (and a supplementary notice) pursuant to s 78B of the Judiciary Act 1903 (Cth). On 22 October 2012, Garde J dismissed the appeal saying:
There is no substance at all in the appeal … in my view there is no substance in any of the grounds which are set out in the Notice of Appeal. Equally there is no arguable basis for the suggested denial of procedural fairness by (Mukhtar AsJ)...
His Honour also found that there “… is no substance in the claims that are advanced” in the Notices of a Constitutional Matter. Subsequently Mr Pham filed a summons seeking leave to appeal the order of Garde J to the Court of Appeal. Reference will be made to this matter below.
Having regard to the observations of Mukhtar AsJ and Garde J quoted above, no more needs to be said. This proceeding was clearly completely without merit, doomed to failure and, as a result, vexatious. Again, the appeal from Mukhtar AsJ to Garde J should also be similarly characterised.
On 4 September 2012,[19] Mr Pham commenced a proceeding by originating motion in this Court seeking to impugn a VCAT order made on 19 August 2012 by Deputy President Coghlan concerning officers of the Dandenong City Council. On 1 October 2012, Mukhtar AsJ refused Mr Pham leave to appeal and dismissed the proceeding with costs. In doing so, his Honour observed:
I am afraid to say that the grounds of attack stated in the originating motion make little sense. Neither the grounds stated in the proposed Notice of Appeal. In both documents there is just a farrago of legal verbiage and a confused assemblage of conclusions …
[19]The same day he instituted the proceeding referred to at [69]above.
In dismissing Mr Pham’s assertion that he had been denied procedural fairness by Deputy President Coghlan, Mukhtar AsJ said:
Mr Pham was given every opportunity to present his case. He failed because … his case was groundless and misconceived.
On 22 October 2012, Garde J dismissed an appeal from Mukhtar AsJ by Mr Pham, with costs. His Honour observed:
… there is no arguable case for any of the contentions and arguments advanced by the plaintiff … there is no merit whatever in any of the grounds of appeal … there is no arguable ground of appeal and there are no prospects of success in the appeal.
On 5 November 2012, Mr Pham filed an application for leave to appeal to the Court of Appeal, which will be referred to hereunder.
Again, for the reasons referred to by Mukhtar AsJ and Garde J dismissing appeals from Deputy President Coghlan, Mr Pham’s application to this Court for leave to appeal the VCAT order was always doomed to failure and was, as a consequence, vexatious, as was the appeal dismissed by Garde J.
On 4 October 2012, Mr Pham brought a proceeding by originating motion against the Minister for Police and a number of police officers concerning an order made at VCAT on 6 September 2012 (referred to [33] et seq). The Prothonotary refused to seal Mr Pham’s originating process and the matter was referred to the Court. Pagone J declined to order the Prothonotary to seal Mr Pham’s originating process, which refusal Mr Pham unsuccessfully sought to appeal to the Court of Appeal. Reference is made to his application to the Court of Appeal hereunder.
On 4 October 2012 (the same day as he tried to commence proceedings against the police), Mr Pham sought to commence a proceeding against Mr Robert Shade (sic) a Deputy Prothonotary of this Court. His originating motion sought leave to appeal a VCAT decision of 6 September 2012 (to which reference is made at [33] above). Again, the Prothonotary refused to seal the originating process and Pagone J again declined to order him to do so. Mr Pham sought to take this matter also to the Court of Appeal. He was similarly unsuccessful. Reference will be made to this appeal below.
As with the proceeding attempted to be commenced by writ against the Dean of the Dental School at the University of Queensland, the unsuccessful attempts by Mr Pham to bring proceedings in this Court against the police and the Deputy Prothonotary of this Court concerning earlier VCAT decisions do not constitute the commencement of proceedings. However, Mr Pham’s applications to a single judge of the Court to compel the sealing of originating process by the Prothonotary probably do constitute the institution of proceedings.
Each of these proceedings described the relief sought in identical or virtually identical terms (which were also identical or very similar to a number of other endorsements on originating motions filed in other proceedings by Mr Pham). They consist merely of a list of non-specific complaints against the relevant VCAT member, so general and lacking in detail as to be completely uninformative and, accordingly, legally incompetent. Doubtless that is why Pagone J refused to order the Prothonotary to seal them when the matters were referred to him. As such, in the circumstances, the referral of each of those matter to a judge was vexatious, although, as already suggested they may not qualify as vexatious proceedings for the purposes of s 21 of the Supreme Court Act1986.
On 11 January 2013, Mr Pham brought two proceedings concerning orders of VCAT of 13 and 14 December 2012 (Member Wentworth and Deputy President Lulham). Those orders are referred to at [51] and [54] above. The proceedings which he brought were an application for leave to appeal VCAT’s orders and an application for judicial review of those orders pursuant to the Administrative Law Act 1978.
On 7 June 2013, Emerton J refused Mr Pham leave to appeal the orders sought to be impugned and dismissed his application for judicial review as an abuse of process. With respect to the review, her Honour said:
Aside from the fact that the review proceeding is unnecessary, I have formed the view that it was brought for a collateral purpose, namely to provide an “all purpose” vehicle for Mr Pham to gather around him and to have joined as parties to the proceeding a number of disgruntled persons who wish to make complaint about the administration of justice in Australia (or Victoria) generally …
In refusing leave to appeal she said:
In my view there is no real or significant argument to be made that the Tribunal denied Mr Pham procedural fairness or otherwise erred in its treatment of him or his applications.
In her comprehensive judgment, Emerton J was severely critical of Mr Pham, particularly as to the vagueness of his allegations and his failure to specify any particular act or omission of the tribunal which could justify the grant of the relief he was seeking.
I am satisfied that both of Mr Pham’s applications of 11 January 2013 were vexatious. The review proceeding was described by the judge who dismissed it as “an abuse of process”. The application for leave to appeal was doomed to failure, as have been so many of Mr Pham’s other applications.
Court of Appeal
Between December 2011 and March 2013, Mr Pham made six applications to the Court of Appeal. The first application, filed 7 December 2011 for leave to appeal, concerned the order of Cavanough J of 29 November 2011 described at [61] above. It was dismissed on 2 March 2012 by Nettle JA and Kyrou AJA. No reasons are extant. A subsequent application by Mr Pham to the High Court for special leave to appeal was also refused on 12 December 2012 by Kiefel and Gageler JJ.
In his submissions to the Court, the Attorney-General contended that it should be inferred from the immediate dismissal of the application by Nettle JA and Kyrou AJA that there was no foundation or proper grounds for the application for leave to appeal. On the material before the Court, it seems that Mr Pham failed to comply with directions of a Judicial Registrar as to the filing of affidavits. It may well be that that was why his application was refused. On the material available, I am not sufficiently satisfied that the institution of the application for leave to appeal was, in this case, vexatious.
On 5 November 2012, Mr Pham brought four separate applications for leave to appeal to the Court of Appeal in respect of the two orders of Pagone J of 4 October 2012 (referred to at [78] and [79] above) and the two orders of Garde J of 22 October 2012 (referred to at [70] above). All of those applications were dismissed by Whelan JA and Vickery AJA on 1 March 2013. In a comprehensive published written judgment,[20] Vickery AJA (with whom Whelan JA agreed) described the litigation history of Mr Pham with respect to these applications and described, in detail, the VCAT orders which gave rise to them. Vickery AJA summarised the reason for dismissal of the applications as being “… in the interests of the administration of justice, on the grounds that they have not been reasonably prosecuted and disclose no proper basis for any appeal”.[21] His Honour described the grounds of appeal contemplated by Mr Pham as “frivolous”.[22]
[20][2013] VSCA 43.
[21]Ibid, at [72].
[22]Ibid, at [64].
In his submissions as to these applications for leave to appeal, the Attorney-General, relying upon the judgment of Vickery AJA, contended that they were vexatious. I accept that submission. In the circumstances they should not have been brought.
On 6 March 2013, Mr Pham filed an application for leave to appeal in respect of the order of Dixon J of 19 February 2013, to which reference is made at [66] above. The application was dismissed by Nettle AP and Neave JA on 19 April 2013. Their Honour’s held that the application ‘fails to disclose a rational basis for relief of the kind sought’. They said that an affidavit filed by Mr Pham:
… does not disclose the existence even of a possible basis for the claim of lack of jurisdiction or denial of procedural fairness. The most that can be gleaned from its contents is that the applicant is so dissatisfied with his failure before VCAT, and has such little regard for this Court, that he deems it appropriate to make unparticularised allegations of racial, sexual and other diverse forms of discrimination against the several VCAT personnel and judges who have had to deal with the matter.
For the reasons expressed by Nettle AP and Neave JA in dismissing Mr Pham’s application for leave to appeal, this application was vexatious.
Conclusion
In Attorney-General for Victoria v Weston,[23] Whelan J described an application to declare a person a vexatious litigant as being “most serious” and that a clear and compelling case must be made to justify the making of such a declaration. I respectfully agree. The Attorney-General must demonstrate that the person against whom a declaration is sought must have instituted proceedings which are vexatious and to have done so habitually and persistently and without any reasonable ground.
[23][2004] VSC 314.
The Attorney‑General submitted that 27 of the proceedings identified in paragraph 7 of Mr Lee’s affidavit of 17 September 2013[24] (referred to at [2]-[3] above) were vexatious within the meaning of s 21(2) of the Supreme Court Act 1986. I am satisfied that that submission should be accepted with respect to 23 of those proceedings. They are listed in Appendix A to this judgment. I am also satisfied that many of the applications for review, re‑hearing, re‑instatement and the like brought by Mr Pham, particularly at VCAT, were also vexatious. Some are referred to herein. However, having regard to the Attorney’s submissions and the number of clearly vexatious proceedings identified, there is no need to resort to them to determine this application.
[24]A minor clerical error in that paragraph was amended, with leave, by the filing of a correcting affidavit as at the beginning of the trial of this matter.
It remains to consider the 23 vexatious proceedings referred to in light of the requirements in s 21(2) of the Supreme Court Act 1986, that Mr Pham habitually and persistently and without any reasonable ground instituted those vexatious legal proceedings.
In Attorney-General v Wentworth,[25] Roden J said:
“Habitually” suggests that the institution of such proceedings occurs as a matter of course, or almost automatically, when the appropriate conditions (whatever they may be) exist; “persistently” suggests determination, and continuing in the face of difficulty or opposition, with a degree of stubbornness.
[25](1988) 14 NSWLR 481 at 492.
The New Zealand Court of Appeal in Brogden v Attorney-General[26] said, with respect to the question of “persistently” bring proceedings:
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.
[26][2001] NZAR 809.
In this case, the evidence, which was not contradicted in any way, demonstrated that Mr Pham persisted in re‑litigating matters the subject of tribunal and court decisions, usually as far as possible. His persistent pursuit of Ms Nguyen is an example of a dispute being raised again and again, despite the outcome being entirely predictable and always adverse to him; similarly with Mr Stephan. Further, he has “drawn into the widening circle of litigation” other parties such as Ms Nguyen’s estate agents, police officers, officers of the Dandenong City Council and even the Attorney‑General and the Department of Justice; the cases against them being all totally lacking in merit, doomed to failure and unarguable.
I am satisfied that Mr Pham meets the criteria for a vexatious litigant as described in s 21(2) of the Supreme Court Act 1986. I am also satisfied that he had ample opportunity to be heard in opposition to the Attorney‑General’s case. The remaining question is whether, in the exercise of the Court’s discretion, an order declaring Mr Pham a vexatious litigant ought to be made. In determining this issue, I ignore completely his appalling behaviour in court to which I shall return shortly. Having regard solely to the litigation which Mr Pham has generated in the 23 proceedings which I have found to have been vexatious, I am satisfied that an order under s 21(2) of the Supreme Court Act 1986 is necessary. The Court must protect itself and other courts and tribunals, as well as people who may be future targets of Mr Pham’s obsessions. One does not need further evidence to come to the conclusion that Mr Pham, to date, has cost the justice system an enormous amount. It can also be safely assumed that he has caused those he has brought to court to incur expense in defending themselves from his outrageous accusations, not to mention the anxiety he has caused those hapless citizens against whom he brought vexatious proceedings.
There will be an order declaring Le Tuan Pham (also known as Charles Pham) a vexatious litigant and ancillary orders in accordance with s 21(3) of the Supreme Court Act 1986.
Contempt of Court
Upon releasing Mr Pham from custody at the end of the trial of this matter, I said that I would consider the question as to whether Mr Pham should be charged with contempt in the face of the court with respect to his behaviour in the course of the hearing, and that I would give my decision on this question with this judgment.
It is obviously necessary that any system of justice must have the means readily to hand to protect its processes, and to guarantee the unhindered access of its citizens to the courts, as well as to punish those who would impede or subvert that system.[27] Mr Pham’s behaviour during this trial which, as I have already said, was calculated to disrupt the trial of this proceeding in an attempt to prevent the Attorney‑General obtaining the relief he sought, was clearly a contempt in the face of the Court. Notwithstanding that, having regard to the time which has now elapsed and to the fact that Mr Pham will henceforth be severely and effectively restricted in approaching the courts and tribunals of this State at all, I have decided, with some reluctance, not to institute proceedings to punish him for contempt. He should be mindful however that should he behave in a similar manner before a court again, his behaviour on this occasion, which is set out at [8] to [16] above, may well have the effect that another judicial officer will take a far less lenient view.
[27]Attorney-General v Times Newspapers Ltd [1974] AC 273, at 309 per Lord Diplock.
Vexatious Proceedings Act 2014
On 17 June 2014 the Vexatious Proceedings Act 2014 (the VP Act) received royal assent. This Act has not, as at 3 July 2014, commenced operation. It will commence on 31 October 2014, unless proclaimed earlier. From the date of that commencement the declaration made by this court on 3 July 2014 will have the immediate effect that Mr Pham will thenceforth be subject to a ‘general litigation restrain order’ pursuant to s 29 of that Act. This result will follow without the need for any further application to this Court.
Costs
As the Attorney General did not seek costs, there will be no order as to costs.
Declaration and orders
The Court makes the following declaration and orders:
1.It is declared that the defendant is a vexatious litigant within the meaning of s 21(2) of the Supreme Court Act 1986.
2.The defendant is hereby prohibited without leave of:
(i)this Court;
(ii)an inferior court of this State; or
(iii)a tribunal of this State constituted or presided over by a person who is an Australian lawyer —
from continuing or commencing any legal proceeding (whether civil or criminal) in this Court, any inferior court of the State of Victoria or any tribunal constituted or presided over by a person who is an Australian lawyer.
3.The declaration in paragraph 1 and the order in paragraph 2, above, will remain in force indefinitely.
APPENDIX A
Date proceeding commenced
Tribunal Other Parties Paragraph of Judgment 18 July 2011
VCAT (RT)
Mr Tony Stephan
[22]
1 September 2011
VCAT (SC)
Mr Tony Stephan
[23]
25 August 2011
VCAT (AD)
Police officers and others
[31]
1 September 2011
VCAT (RT)
Ms Minh Nguyen
[38]
25 January 2012
VCAT (AD)
Mr Robert Schade, Deputy Prothonatory
[41]
27 February 2012
VCAT (RT)
Ms Minh Nguyen
[48]
6 March 2012
VCAT (AD)
Dimity Jones and Tony Rachele
[55]
3 April 2012
VCAT (AD)
Attorney-General and Department of Justice
[55]
18 May 2012
VCAT (AD)
Dandenong Council Officers
[55]
3 April 2012
VCAT (CC)
Dandenong Council Officers
[55]
21 September 2012
VCAT (RT)
Stan Young
[55]
26 September 2011
SCV
Minh Nguyen and Bark Nguyen
[59]
29 November 2011
SCV
Minh Nguyen
[60]
30 April 2012
SCV
Tony Stephan
[63]
11 July 2012
SCV
Department of Justice and Attorney-General
[65]
4 September 2012
SCV
Dimity Jones and Tony Rachele
[69]
11 January 2013
SCV
Minh Nguyen
[82]
11 January 2013
SCV
Minh Nguyen
[82]
5 November 2012
(4 applications)
VSCA
Minister for Police and others
[89]
6 March 2013
VSCA
Department of Justice and Attorney-General
[91]
Legend:
(RT)Residential Tenancies List
(AD)Anti‑Discrimination List
(CC)Civil Claims List
(SC)Small Claims List
3
5
0