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Attorney-General (Vic) v Pham

Attorney-General (Vic) v Pham

Case [2014] VSC 311 3 July 2014

Jurisdiction

Abuse of Process

Contempt of Court

Civil Litigation & Procedure

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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

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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

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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.

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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…

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.

Continue reading Attorney-General (Vic) v Pham

Details

AGLC: Attorney-General (Vic) v Pham [2014] VSC 311
Case: [2014] VSC 311
Decision Date: 3 July 2014

CaseChat Overview and Summary

In the case of Attorney-General (Vic) v Pham, the Attorney-General sought to have the defendant declared a vexatious litigant under the Vexatious Proceedings Act 2014 (Vic). The defendant had been involved in a significant number of legal proceedings, many of which were deemed frivolous or without merit. The matter was heard in the Supreme Court of Victoria, where the court was tasked with determining whether the defendant's actions met the criteria for being declared a vexatious litigant. The court's decision hinged on whether the defendant's conduct could be considered vexatious and whether the defendant was given a fair opportunity to be heard.

The legal issues before the court involved interpreting the criteria for declaring someone a vexatious litigant, as set out in the Vexatious Proceedings Act 2014. Key among these was the meaning of 'vexatious' and whether the defendant's conduct amounted to such, given the frequency and nature of their legal proceedings. Additionally, the court needed to consider whether the defendant had been afforded a fair opportunity to be heard, despite allegations of misconduct in Court amounting to contempt. The court was also required to assess whether the defendant's actions warranted the severe consequences of being declared a vexatious litigant.

The court found that the defendant's conduct met the criteria for being declared a vexatious litigant. The defendant had engaged in numerous legal proceedings that were considered frivolous or without merit, which was a clear indication of vexatious behaviour. The court also noted that the defendant had been provided with multiple opportunities to be heard and to address the concerns raised by the Attorney-General. Despite these opportunities, the defendant's conduct in Court, including alleged instances of contempt, further supported the conclusion that they were a vexatious litigant. Consequently, the court granted the Attorney-General's application and declared the defendant a vexatious litigant.

The court's final orders included a declaration that the defendant was a vexatious litigant, restrictions on their ability to initiate proceedings in certain courts without prior permission, and orders for the defendant to pay costs. The declaration and associated restrictions were intended to prevent the defendant from continuing to engage in frivolous or vexatious legal proceedings. The orders reflected the court's determination that the defendant's conduct warranted such measures to protect the judicial system from unnecessary burden.

Orders