Bathis-Brown v Woods

[2015] NSWSC 1194

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Bathis-Brown v Woods [2015] NSWSC 1194

Hearing dates:

30 & 31 March 2015

Decision date:

25 August 2015

Jurisdiction:

Common Law

Before:

Hall J

Decision:

(1) Pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (“the Act”), the whole of proceedings no. 2014/63258, commenced by the defendant against the first plaintiff on 28 February 2014 in the Local Court at Wyong for an Apprehended Personal Domestic Violence Order, is stayed.

 

(2) Pursuant to s 8(7)(a) of the Act, the whole of proceedings no. 2014/63277, commenced by the defendant against the second plaintiff on 28 February 2014 in the Local Court at Wyong for an Apprehended Personal Domestic Violence, Order is stayed.

 

(3) Pursuant to s 8(7)(b) of the Act, the defendant is prohibited from commencing proceedings in New South Wales against either the first or second plaintiff in which orders in the nature of Apprehended Violence Orders are sought.

 (4)   Unless written application is made to my Associate within seven days for a different order, order the defendant to pay the plaintiffs’ costs of the proceedings.

Catchwords:

PROCEDURE – Vexatious proceedings – Application made under s 8(a) Vexatious Proceedings Act 2008 seeking orders staying two proceedings instituted by the defendant – Application for order prohibiting defendant from commencing proceedings in New South Wales under s 8(b) Vexatious Proceedings Act 2008 – Meaning of vexatious proceedings – Whether defendant’s applications for Apprehended Domestic Violence Orders against the plaintiffs were vexatious – Evidence indicated applications were retaliatory to applications made by the first plaintiff – Defendant had failed to pursue and support applications with cogent and consistent evidence – Applications for Apprehended Violence Orders found to be vexatious – Orders made staying two sets of proceedings commenced against the plaintiffs – Order made prohibiting the defendant from commencing proceedings for Apprehended Violence Orders against the plaintiffs

Legislation Cited:

Domestic and Family Violence Protection Act 2012 (Qld)
Vexatious Proceedings Act 2008 (NSW)

Cases Cited:

Attorney General (NSW) v Wilson [2010] NSWSC 1008
Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192
Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125
Viavattene v Attorney General (NSW) [2015] NSWCA 44

Texts Cited:

Oxford English Dictionary, Online, March (2014), Oxford University Press

Category:

Principal judgment

Parties:

Lauren Ann Bathis-Brown (First Plaintiff)
Kevin Bathis (Second Plaintiff)
David Woods (Defendant)

Representation:

Counsel:
R Wilson SC; S Spadijer (Plaintiffs)
In person (Defendant)

  Solicitors:
Brazel Moore Lawyers (Plaintiffs)
Self-Represented (Defendant)

File Number(s):

2014/136185

Judgment

Introduction

1. The plaintiffs commenced proceedings against the defendant by way of Summons filed 6 May 2014 seeking a number of orders under the Vexatious Proceedings Act 2008 (NSW) (“the Act”). Orders are sought pursuant to s 8(7)(a) of the Act staying two sets of proceedings commenced by the defendant against the plaintiffs in the Wyong Local Court on 28 February 2014 (Local Court proceedings 2014/63258 and 2014/63277), and an order is sought pursuant to s 8(7)(b) of the Act prohibiting the defendant from commencing proceedings in New South Wales.

2. The plaintiffs rely upon s 4(d) of the Act for standing to bring the proceedings. The hearing of the Summons took place in this Court on 30‑31 March 2015. At the conclusion of the evidence the plaintiffs relied upon an Outline of Submissions filed 23 March 2015 and oral submissions made by Mr Raoul Wilson SC who appeared with Mr S Spadijer on their behalf.

3. The plaintiffs relied upon the Affidavit of Lauren Bathis-Brown (the first plaintiff) dated 10 September 2014 and the Affidavit of Kevin Bathis (the second plaintiff) dated 27 August 2014. The defendant appeared on his own behalf at the hearing and relied upon his affidavit of 20 October 2014. He was cross-examined on his evidence.

4. Before considering the submissions made and the evidence adduced at the hearing it is necessary to, firstly, refer to the relevant statutory provisions and principles that apply to proceedings such as the present and, secondly, to consider the factual background which led to these proceedings including, in particular, the relationship between the plaintiffs and the defendant.

Statutory Provisions and Principles

5. The issues arising in the present proceedings must, as I have indicated, be considered in light of the relevant provisions of the Vexatious Proceedings Act, in particular, the provisions that determine the type of proceedings in respect of which an order may be made under the Act, namely, “vexatious proceedings”, the nature of the orders the Court is empowered to make in respect of vexatious proceedings as well as the standing of a person to bring proceedings.

6. Section 4 of the Act defines “proceedings” in broad terms and includes, inter alia, any “cause”, “matter”, “action”, “suit”, “proceedings” or “trial”: s 4(a).

7. Section 6 is a key provision. It provides:

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.

8. Section 7 of the Act preserves the inherent jurisdiction and powers of the Court, apart from the Act, to restrict vexatious proceedings.

9. Section 8 is also a key provision in respect of vexatious proceedings orders. It is found in Part 2 of the Act. So far as relevant, it 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.

(5)   An application for a vexatious proceedings order may be made by a person referred to in subsection (4)(e) only with the leave of the authorised court.

(6)   A judicial officer, member or registrar of a court or tribunal may make a recommendation to the Attorney General that he or she consider making an application for a vexatious proceedings order in relation to a specified person.

(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.

….

10. A number of propositions and principles in respect of the meaning and application of the provisions of the Act have been established.

11. The relevant test in determining whether proceedings are vexatious requires two matters to be satisfied before an order under s 8 can be made. The first is that the person has instituted or conducted vexatious proceedings as defined in s 6.

12. The second matter is that such proceedings must have been instituted or conducted frequently. As has been observed, it is not sufficient to point to the fact that a litigant has instituted even a number of vexatious proceedings. If the adverb “frequently” could not be used in connection with the sum of them, no order can be made under s 8. That is a significant matter because it is a serious thing to deprive litigants of their access to the courts, a right which might be thought to be an inherent right for persons living in a democratic society under the rule of law: See Attorney General (NSW) v Wilson [2010] NSWSC 1008 per Davies J at [11].

13. The definition of “proceedings” includes interlocutory proceedings as well as appeals. A court in considering whether or not to make an order under s 8 can have regard to how the person concerned acted within proceedings that were commenced by another party. Accordingly, baseless applications or appeals within another party’s proceedings would fall within s 8(1)(a).

14. A further aspect is that the Court can have regard to the manner in which the person concerned has behaved and conducted himself or herself in proceedings before the Court. It has been held, for example, that repeated oral applications which have no proper basis would fall within the meaning of the word “conducted”.

15. As the terms of s 6(d) of the Act (set out above) indicate, vexatious proceedings include “proceedings conducted in a way so as to harass or annoy, cause delay or detriment, or to achieve another wrongful purpose”.

16. There are authorities that suggest that para (d) does not require the Court to determine whether the defendant in proceedings under the Act subjectively intended to act in such a way as to “harass or annoy, cause delay or detriment, or to achieve another wrongful purpose”: See Viavattene v Attorney General (NSW) [2015] NSWCA 44 at [3] per Beazley P.

17. In that case, Beazley P acknowledged that Basten JA at [22] raised a question as to whether her Honour’s was a correct construction of s 6(d). The President expressed the opinion, obiter dicta, that she did not consider the provision is necessarily to be construed in the way suggested by Basten JA. However, the issue did not arise for final determination in that case, her Honour observing:

“… if an intentional element is involved, intention may be inferred from the objective facts …” (at [4])

18. The relevant principles associated with making a vexatious proceedings order were conveniently summarised by Davies J in Attorney General in and for the State of NSW v Gargan [2010] NSWSC 1192 as follows:

“[7]   I discussed in Attorney General of NSW v Wilson [2010] NSWSC 1008 at [9]-[17] the principles associated with the making of an order under s 8(1)(a) of the Act. Those matters may be summarised as follows:

(a) the test of "frequently" is a less demanding test than was required under s 84 Supreme Court Act 1970;

(b)   the term ‘frequently’ is a relative term and must be looked at in the context of the litigation being considered;

(c)   the number of proceedings considered may be small if the proceedings are an attempt to re-litigate an issue already determined against the person;

(d)   regard may be had to applications made by the person in proceedings commenced against that person;

(e)   regard may be had to the way the person has behaved and conducted himself or herself in the proceedings before the Court;

(f)   regard may be had to proceedings in any Australian court or tribunal;

(g)   regard may be had to the findings and result in the proceedings under consideration.

[8]   In these proceedings, reference has been made to the judgment of Perram J in Official Trustee in Bankruptcy v Gargan(No 2) [2009] FCA 398 where his Honour eloquently expresses the principles relating to vexatious litigants at [2]-[12]. Whilst acknowledging that the test his Honour had to consider was the test under s 84 Supreme Court Act and is, as I have noted, a more demanding test than is required under the Vexatious Proceedings Act 2008, much of what his Honour sets out is relevant to the determination in the present case.

‘[2]   A comprehensive explanation of what makes a proceeding vexatious is difficult to proffer for the boundary between the persistent and over-zealous on the one hand, and the vexatious on the other, may at times be indistinct. However, the following principles are, at least, well-established. First, the making of such an order is an extreme remedy depriving its object of recourse to the enforcement of the law which is every citizen's ordinary right. It is, therefore, not lightly to be made.

[3]   Secondly, the purpose of the order is not to impose condign punishment for past litigious misdeeds; it serves instead to shield both the public, whose individual members might be molested by vexatious proceedings, and the Court itself, whose limited resources and needs must be carefully managed and protected from the expense, burden and inconvenience of baseless and repetitious suits.

[4]   Thirdly, as might naturally be expected, such a severe power is not enlivened by the mere single occurrence of a vexatious claim. To err is human and transient lapses of judgment, even serious ones, may be found in the most reasonable of places. Instead, the power to make the order is conditional upon the litigant having commenced not only a single vexatious proceeding but also upon having commenced similar such proceedings in this Court or in other Australian courts.

[5]   Fourthly, the qualities of vexation to which O 21 is addressed are to be found, as the terms of r 1(1) show, in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant's institution of such proceedings may fairly be said to be both habitual and persistent.

[6]   Fifthly, whether a proceeding is instituted without reasonable grounds is a different question to, although not wholly disconnected from, the inquiry into a proceeding's legal merits. The wheat, no doubt, must be separated from the chaff but in this area the question is whether what is before the Court contains any wheat at all. Although, often enough, no great guidance is obtained by exchanging one formula of words with another, it will be usually of some assistance, limited perhaps, to ask whether the issues brought to the Court for determination are manifestly hopeless or devoid of merit. It is, in that context, important to distinguish the difficult from the ridiculous and the unlikely from the hopeless.

[7]   Sixthly, although the ways in which unreasonable grounds may manifest themselves are myriad, one form often to be found in the baggage of the vexatious is a failure, often a refusal, to understand the principles of finality of litigation which rescue court and litigant alike from a Samsara of past forensic encounters.

[8]   Seventhly, it is the related quality of repetition which underpins, in part, a need for the institution of the proceedings to deserve the appellations habitual and persistent. The litigant's conduct will be habitual where the commencement of proceedings occurs as a matter of course when appropriate conditions for their commencement are present as was explained by Roden J in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 492. That formulation may not wholly explain the litigant who commences proceedings on any occasion and without the presence of any conditions, whether appropriate or otherwise. In such cases, the idea of constant repetition driven by habit and symptomatic of an inability not to engage in the behaviour may be more useful. Persistence, on the other hand, generally suggests stubborn determination but, in the context of the vexatious, carries with it the capacity to endure failure beyond the point at which a rational person would abandon the field.

[9]   Eighthly, each of these notions - the want of reasonable grounds, habitual institution and persistent institution - are to be gauged objectively. But this does not mean that a litigant's own protestation as to his or her own mental state is irrelevant; frequently enough, the vexatious are betrayed out of their own mouths. Rather, the need for objective determination protects courts from the vexatious litigant who is genuinely, but misguidedly, persuaded as to the correctness of his or her own conduct.

[10] Ninthly, the power to make the order arises when proceedings commenced in the way described are found to exist. But the notion of a proceeding is a broad one including a substantive proceeding directed at the attainment of final relief and collateral applications within such a proceeding; further, it extends outside the proceeding itself and embraces appeals there from and applications which, whilst not made in the proceeding, are properly to be seen as collateral thereto - so much flows from the definition of proceeding in s 4 of the Federal Court of Australia Act 1976 (Cth).

...

[12]   Finally, once it is concluded that the Court's power to prevent a litigant from commencing or pursuing proceedings has been enlivened, the considerations germane to the exercise of that power are unconfined. However, the factors which will be relevant are informed by the protective purpose which the order serves. Where a litigant displays insight into their previous litigious history this will, no doubt, be relevant for it will suggest - although not determine - a diminution in the risk posed to the public. On the other hand, the manner in which a litigant conducts herself in her affairs generally is also capable of throwing light on whether the commencement of further vexatious proceedings is likely. Those general affairs include the litigant's defence to the proceedings by which the order restraining him is sought. Because of the protective nature of the jurisdiction it is also relevant to know the extent of the damage and inconvenience the litigant's forays into the courts have caused, pecuniary or otherwise."

19. As noted above, s 8(1) of the Act authorises this Court to make an order under that section in relation to a person if the Court is satisfied that the person has “frequently” instituted or conducted vexatious proceedings in Australia.

20. The issue of the number and frequency, or pattern, of proceedings has been the subject of discussion in a number of decisions.

21. In general terms, there is no specification as to the number of proceedings that might satisfy the statutory requirement that a person has “frequently instituted or conducted” vexatious proceedings. The Dictionary meaning of “frequently” includes “at frequent or short intervals, often, repeatedly”: Oxford English Dictionary, Online, March (2014), Oxford University Press.

22. In Teoh v Hunters Hill Council (No 8) [2014] NSWCA 125, Beazley P, Emmett JA and Sackville AJA, in relation to the provisions of s 8(1)(a) observed that the dictionary meaning to which I have referred:

“… does not mean that the test can be satisfied only if a person institutes successive vexatious proceedings at short intervals. Nonetheless, a pattern of repeated vexatious applications within a limited period of time may be an important consideration in determining whether the language of s 8(1)(a) of the … Act has been satisfied …”

Orders Sought in the Present Proceedings

23. The form of orders sought in the Summons filed on 6 May 2014 are in the following terms:

“1. In so far as it is necessary, leave to commence these proceedings under Section 8(5) of the Vexatious Proceedings Act 2008 (NSW) (“The Act”).

2. A Vexatious Proceedings Order pursuant to Section 8(7)(a) of the Act staying the whole of proceedings no. 2014/63258 commenced by the defendant against the first plaintiff on 28 February 2014 in the Local Court at Wyong for an Apprehended Personal Domestic Violence Order.

3. A Vexatious Proceedings Order pursuant to Section 8(7)(a) of the Act staying the whole of proceedings no. 2014/63277 commenced by the defendant against the second plaintiff on 28 February 2014 in the Local Court at Wyong for an Apprehended Personal Domestic Violence Order.

4. A Vexatious Proceedings Order pursuant to Section 8(7)(b) of the Act prohibiting the defendant from commencing proceedings in New South Wales.

5.   Such further or other orders as the Court deems appropriate in the circumstances.

6.   Costs.”

24. I do not consider that the grant of leave is necessary under s 8(5) of the Act because the plaintiffs have standing under s 4(d) and do not rely upon s 4(e).

Factual Chronology of Proceedings

25. A chronology of relevant events was set out in the Plaintiffs’ Outline of Submissions dated 20 March 2015 at [6]. There was no substantive matter raised as to the accuracy of the chronology, the relevant parts of which are reproduced below, except as to the event on 29 April 2012 which was acknowledged by Mr Wilson for the plaintiffs to be inaccurate, and the entry on 18 April 2012 which I have concluded occurred on 18 April 2011. I note, of course, that the chronology is but a brief summary of the events and is the plaintiffs’ version of events. In relation to the proceedings relied upon by the plaintiffs as being vexatious, the chronology was supplemented by observations as to facts and contentions which I refer to in summary form below.

26. Accordingly, the chronology and the alleged factual matters and contentions set out in the Plaintiffs’ Outline of Submissions provides, subject to observations made below, a convenient framework of events relating to the proceedings between the first plaintiff and the defendant, and the proceedings instituted by the defendant against the first plaintiff.

27. In the chronology set out below, the relevant proceedings instituted and/or maintained by the defendant are emphasised by underlining.

X/X/1969	Date of birth of the Defendant
X/X/1990	Date of birth of the First Plaintiff
2008
Oct 2008	The First Plaintiff meets the Defendant on an internet dating site. They commence a romantic relationship.
26/12/2008	The First Plaintiff relocates to Cleveland, Queensland with her family and ends her relationship with the Defendant but maintains limited contact with him after that time.
2010
15/2/2010	First Plaintiff files a Domestic Violence Order (Protection Order) Application against the Defendant in the Cleveland Magistrate’s Court, Queensland
19/8/2010	The Defendant pleads guilty in the Cleveland Magistrate’s Court to a charge of unlawful stalking and using a postal service to harass. He is sentenced to 5 months imprisonment. The Magistrate’s Court also grants a Protection Order in favour of the First Plaintiff expiring 18/8/12.
30/8/2010	The Defendant files an Application for a Domestic Violence Order against the First Plaintiff in the Wyong Local Court NSW.
24/9/2010	The Protection Order made by the Cleveland Magistrate’s Court on 19/8/10 is registered with the Tweed Heads Local Court in New South Wales.
2011
20/1/2011	The Defendant commences civil proceedings in the Wyong Local Court against the First Plaintiff for the return of goods and repayment of money totalling $5,116. The Statement Claim is not served on the First Plaintiff.
22/2/2011	The First Plaintiff receives a telephone call from the Defendant said to be in breach of the Protection Order made on 19/8/10 in Queensland.
2012
18/4/2012	The Defendant obtains default judgment against the First Plaintiff in the Wyong Local Court in respect of the 20/1/11 proceedings.
29/4/2012	The Defendant’s Application for an Apprehended Violence Order in the Wyong Local Court is withdrawn. He is ordered to pay costs of $5,336. The costs have not been paid to the First Plaintiff.
12/7/2012	The First Plaintiff applies to the Cleveland Magistrate’s Court for an extension of the Protection Order which was due to expire on 18 August 2012.
8/8/2012	The First Plaintiff applies to set aside the default judgment obtained by the Defendant in the Local Court at Wyong.
3/9/2012	The Defendant files a fresh Application for a further Domestic Violence Order against the First Plaintiff in the Wyong Local Court.
31/10/12	The Domestic Violence Order granted by the Cleveland Local Court is extended for a further 2 years to 30/10/14.
20/12/12	The Defendant fails to appear in the Wyong Local Court for the hearing of his Application for an Apprehended Domestic Violence Order against the First Plaintiff. The matter is adjourned until 25/1/13
2013
11/1/2013	The Defendant files a Notice of Appeal in the Queensland District Court appealing the decision on 31/10/12 extending the Domestic Violence Order for 2 years.
25/1/2013	The Defendant again fails to appear in the Wyong Local Court for the hearing of his Application for a Domestic Violence Order. The Application is dismissed and he is ordered to pay costs of $5,336. These costs remain outstanding.
13/6/2013	The Defendant’s appeal to the Queensland District Court is allowed. The matter is remitted to the Magistrate’s Court for rehearing.
2014
26/2/2014	Magistrate Sarra of the Cleveland Magistrate’s Court orders a domestic violence order against the Defendant for a period of 6 years expiring 25/2/2020.
28/2/2014	The Defendant commences proceedings no.2014/63258 in the Local Court at Wyong for an Apprehended Personal Domestic Violence Order against the First Plaintiff.
28/2/2014	The Defendant commences proceedings no.2014/63277 in the Local Court at Wyong for an Apprehended Personal Domestic Violence Order against the Second Plaintiff.
Mar 2014	The Defendant files an Appeal in the Queensland District Court from the decision of Magistrate Sarra on 26/2/14.
6/5/2014	Date of filing of the Summons in these proceedings.

28. The first plaintiff, Ms Bathis-Brown met the defendant, Mr Woods, on an internet dating website in September or October 2008. They communicated online and on the phone before eventually meeting in person towards the end of October 2008. They began a romantic relationship which, according to Ms Bathis-Brown’s affidavit evidence, ended on 26 December 2008. On or about that date she said she moved to Cleveland, Queensland from New South Wales with her family. I note, however, that in her statement to police on 17 February 2010, annexed to her affidavit, she states that the family moved in February 2009 to ‘Brisbane’.

29. The first plaintiff and the defendant were in contact with one another throughout 2009, however the nature and frequency of that contact was not clear. Ms Bathis-Brown alleges that the defendant on one or more occasions travelled to Queensland to see her.

30. Ms Bathis-Brown said in her affidavit at [10] that in February 2010 she provided Cleveland Police with an account of what she termed had been “continual aggressive behaviour” by the defendant. On 15 February 2010 she filed a Protection Order Application in the Cleveland Magistrate’s Court.

31. Ms Bathis-Brown gave a statement to police in Cleveland which resulted in the defendant being arrested and charged with unlawful stalking and using a postal service to harass. He pleaded guilty to charges brought against him on 19 August 2010 after having spent five months in prison. On 19 August 2010 the Cleveland Magistrate’s Court also made the Protection Order sought by Ms Bathis-Brown against the defendant expiring 18 August 2012. The Protection Order was registered with the Tweed Heads Local Court in New South Wales on 24 September 2010.

32. Soon after his release from prison the defendant, on 30 August 2010, filed an Application for a Domestic Violence Order against the first plaintiff in the Wyong Local Court (the defendant’s first application). In circumstances discussed below, this application was withdrawn by him on 29 April 2012.

33. On 20 January 2011 the defendant commenced civil proceedings in debt against the first plaintiff by way of Statement of Claim in Wyong Local Court claiming a sum of $5116.50 for goods and money he claimed should be returned to him by the plaintiff, as well as interest and costs. Ms Bathis-Brown gave evidence that the Statement of Claim was not served on her. Default judgment against her was entered by the Wyong Local Court on 18 April 2011. Ms Bathis-Brown subsequently applied to have the default judgment set aside, though not until 8 August 2012. The evidence as to the nature and basis of this claim is discussed below.

34. Ms Bathis-Brown gave evidence that on 22 February 2011 she received a phone call from the defendant in breach of the Protection Order against him. She gave evidence that the defendant, during that call, had said words to the effect of “I have taken pills and I am going to die.” She formally reported the incident to the police on 23 February 2011. At the hearing, Mr Woods denied having made the phone call or breaching the protection order in any way.

35. The defendant filed a second Application for a Domestic Violence Order against the first plaintiff in the Wyong Local Court on 3 September 2012 (the defendant’s second application). That application accordingly was filed approximately five months after the withdrawal by him of his first application. The first plaintiff’s case is that this application constituted a “retaliation” by the defendant for her having made an application to set aside the default judgment. The defendant’s second application was dismissed on 25 January 2013 after he failed to appear at two hearings in relation to it. A costs order was made against him which, on the plaintiff’s evidence, remains outstanding.

36. On 12 July 2012 the first plaintiff applied to the Cleveland Magistrate’s Court to have her protection order against the defendant, which was due to expire, extended. On 31 October the Order was extended for two years. However, on 11 January 2013 the defendant filed a Notice of Appeal in the Queensland District Court in relation to the decision to extend the Order. The appeal was allowed on 13 June 2013 and the matter was remitted to the Magistrate’s Court for rehearing. On 26 February 2014, at the rehearing, the Magistrate (Magistrate Sarra) made a Protection Order against the defendant for six years, to expire on 25 February 2020. In March 2014 the defendant filed a Notice of Appeal in respect of the latter order.

37. Two sets of proceedings were commenced by the defendant on 28 February 2014 in the Wyong Local Court in which he made applications for Apprehended Personal Domestic Violence Orders against both Ms Bathis-Brown and her father (the defendant’s third and fourth applications). These applications were filed two days after the order made by the Cleveland Magistrate’s Court (Magistrate Sarra) extending the Protection Order in favour of Ms Bathis-Brown for a period of six years.

Overview

38. The defendant has filed a total of three Applications for Domestic Violence Orders against the first plaintiff, one of which was withdrawn, one of which was dismissed and one which is the subject of the plaintiffs’ current application for a stay order. Only one application has been made by the defendant against the second plaintiff, which is also the subject of the current proceedings. The defendant, as discussed above, has also pursued civil proceedings in the Wyong Local Court against the first plaintiff as referred to above.

39. The first plaintiff has had a Protection Order in place against the defendant since August 2010 which she alleges the defendant breached at least by telephoning her in early 2011. The defendant has twice appealed from decisions made by the Magistrate’s Court in Queensland in relation to the extension of this order. On one occasion he was successful in his appeal, however the order was subsequently extended for a longer period upon being remitted to the Magistrate’s Court. As also noted above, the defendant has also in the past been subjected to criminal proceedings following complaints made by the first plaintiff, resulting in him being imprisoned for a five-month period.

40. The plaintiffs rely upon the five proceedings instituted by the defendant, four of which involve proceedings in which he sought Apprehended Domestic Violence Orders (referred to as “AVOs”) and one set of civil proceedings for debt being that commenced by the defendant on 20 January 2011. The plaintiffs contend that the civil proceedings constitute an abuse of process and were retaliatory in nature to proceedings brought by the first plaintiff. In final submissions Mr Wilson submitted that the civil proceedings were vexatious, inter alia, upon the basis that certain items given by the defendant to Ms Bathis-Brown were gifts, as was an amount of $4,000 which Ms Bathis-Brown claimed she had, in any event, returned to the defendant. A similar submission was made on behalf of the second plaintiff in respect of the proceedings commenced by the defendant on 28 February 2014 in which an Apprehended Domestic Violence Order was sought against him.

41. It was submitted on behalf of the plaintiffs that the proceedings should be properly characterised as vexatious and frequently instituted within the meaning of s 8(1) of the Act. In that respect the submission was as follows:

“Within the period of three and a half years from 30 August 2010 until 28 February 2014, the Defendant commenced four sets of proceedings against the First Plaintiff, each of which constituted an abuse of process and were designed to harass and annoy. On 28 February 2014 the Defendant commenced proceedings against the Second Plaintiff which were also an abuse of process and were designed to harass and annoy. There is a clear case that the Defendant is a person who ‘has frequently instituted or conducted vexatious proceedings in Australia’ within the meaning of s 8(1)(a) of the Act. As observed by Toohey J in Jones v Cusack [1992] HCA 40; 109 ALR 313 the term ‘frequently’ is a relative term that must be understood in the context of the proceedings instituted by the person against whom the orders are sought. This is a case where the Defendant’s conduct can properly be characterised as a ‘pattern of repeated vexatious applications within a limited period of time’. (see Teoh, ibid, at [49]).” (Plaintiffs’ Outline of Submissions at [14])

42. In addition, it was submitted on behalf of the plaintiffs that the proceedings brought by the defendant by way of appeal may be taken into account.

Analysis

The Evidence

43. In the analysis that follows I will refer to the evidence adduced at the hearing and proceed to make findings of fact upon factual disputes or issues.

44. At the time of affirming her affidavit on 10 September 2014, Ms Bathis-Brown was aged 23 years. In her affidavit she stated that her relationship with the defendant effectively broke down in late 2009. As noted above, a few months later she attended on Cleveland Police and made a detailed statement, a copy of which was exhibited to her affidavit (Exhibit LBB-1). The statement was taken by police on two days, 17 February 2010 and 11 March 2010. It is dated 17 February 2010.

45. In summary, the first plaintiff’s statement to police referred to a number of events which she alleged occurred involving the defendant, including in particular, alleged aggressive and harassing conduct by him. In her account to police she stated that the defendant travelled to, and arrived in Cleveland in the latter part of January 2010. The statement includes a detailed account of the alleged events which she said took place between approximately late January 2010 and 4 February 2010.

46. It is unnecessary here to reproduce the detail of her account to police. In circumstances addressed by her statement she said that on 8 February 2010 she attended Cleveland Court House and obtained an application form for a Protection Order. Later in the week she said she filed the application.

47. The statement then contains reference to deliveries of objects said to have been made by courier or by express post to her at [83]-[87] which by inference she attributed had been deliveries directed or ordered by the defendant.

48. According to Ms Bathis-Brown, on 4 March 2010 her application for a Domestic Violence Order against the defendant was listed in the Cleveland Magistrate’s Court. However, at that time she said she understood that the defendant was in police custody.

49. On 19 August 2010, her application was again listed before the Cleveland Magistrate’s Court. A Protection Order was made against the defendant pursuant to the Domestic and Family Violence Protection Act 1989 (Qld). A copy of the order was annexed to her affidavit (Annexure A).

50. The order recorded both the relevant finding and orders made. In particular, the Protection Order stated:

“The Court is satisfied that the respondent has committed an act of domestic violence against the aggrieved and that the respondent is likely to commit an act of domestic violence again or is likely to carry out a threat to commit an act of domestic violence.”

51. The Protection Order required, inter alia, the defendant to be of good behaviour towards the plaintiff and not to contact or try to contact or have someone else try to contact her or any other named person. The order was said to continue and remain in force up to and including 18 August 2012 “unless it is sooner varied or revoked”.

Evidence as to Past Events

52. In his defence of the present proceedings the defendant set out to establish that the first plaintiff was responsible for phone calls he said had been made to him in which he claimed serious threats were made against him, in particular, threats of physical violence and death.

53. The first plaintiff strenuously denied the allegations made in this respect.

54. The defendant additionally relied upon what he claimed were MSN messaging records and emails sent to him from time to time, although it was not suggested that these messages and emails carried threats of the kind allegedly said to have been made in the phone calls.

55. The defendant, in order to establish these matters, relied upon his affidavit evidence. Two observations are to be made in that respect. Firstly, the affidavit contained inadmissible material. The defendant was granted leave to supplement his affidavit evidence with oral evidence dealing with matters raised in the inadmissible paragraphs. Secondly, the affidavit sworn on 20 October 2014 by the defendant was made some four years after certain of the alleged phone calls to which I have referred were said to have been made (ie, at or about August 2010 and thereafter).

56. In a case such as this, contemporaneous documentation and evidence as to the history of relevant events are of importance in establishing the facts. To that end, in addition to an analysis of the evidence given by both plaintiffs and the defendant, attention has been given to:

• The grounds set out in each of the AVO applications filed by the defendant.

• A written statement that was made by the defendant in support of the first AVO application.

• Evidence as to the defendant’s follow-up, or lack of follow-up, and the outcome of each of the three AVO applications.

(1) First Application by Defendant for an Apprehended Violence Order

57. On 30 August 2010, that is some eleven days following the making of the Protection Order in favour of Ms Bathis-Brown on 19 August 2010, the defendant filed an application for an Apprehended Domestic Violence Order against Ms Bathis-Brown in the Wyong Local Court. The submission for the plaintiffs was that the overwhelming inference is that the proceedings were commenced for the collateral purpose of retaliating against the Protection Order made by the Cleveland Magistrate’s Court on 19 August 2010.

57. It was further contended that the defendant’s application to the Wyong Local Court on 30 August 2010 was an abuse of process. In this respect it was noted that the defendant attended the hearing of the application but that it was subsequently withdrawn on 29 April 2012 (the reference to 29 April 2011 in the plaintiffs’ chronology appears to be an error). No order for costs was made.

58. In the Grounds of Application filed by the defendant it was stated, inter alia, that he had been:

“… sent to gaol in relation to this relationship. That [he] has only recently been released from gaol. Since this time [he] has been receiving harassing phone calls. [He] feels that these phone calls are from [Ms Bathis-Brown] and is seeking an order seeking [Ms Bathis-Brown] from harassing him.”

Facts as to Alleged Threatening Phone Calls August 2010

60. The defendant’s affidavit evidence of having received “threatening messages” and other communications from the first plaintiff and/or her family was in an inadmissible form. As noted above, on 31 March 2015, he was given an opportunity to provide specific details as to the phone calls he alleged he received: at T 90.

61. He said that within a week or so of his release from gaol he filed an AVO application “because I’d had two phone calls”: T 90:35-40. He added:

“… so basically from that I went to the court to take out an AVO because I don’t know specifically who was making the calls but it was mentioning a certain individual in Queensland, as in Ms Bathis-Brown, so I didn’t know who specifically was behind it, but obviously she was, because they had my details and that’s why I went to take out the AVO.” (T 90:45-T 91:2)

62. He was asked to give his best recollection of what was said in the phone calls: T 91:1-20. He said a male person spoke. He said that person did not identify himself. He was asked:

“Q.   Try again, what was said, to the best of your recollection, trying to create – so that we know what was said?

A.   Yeah. Just basically said, ‘If you contact Lauren again you’re dead’ so that was not the exact wording but that was the gist of what went on. It was probably no more than literally a ten second call.

Q.   Is that the extent of your recollection about that call?

A.   Yes.” (T 92:1-10)

63. He said he received a second call from a male person. He was asked:

“Q.   What was said by that male voice to the best of your recollection?

A.   To the best of my recollection it would have been again, ‘If you contact Lauren you’re dead’, basically. ‘You’re going to get it’. So, I mean, after those two calls is when I went to Wyong Local Court to take out the AVO. I told them what had happened and that I have received threats from a third person and they said that I was able to take an AVO out on her because if you believe a third person is contacting you due to them I was able to, so that’s why I took out the AVO.” (T 92:25-40)

64. As has been noted, the Grounds of Application filed on 30 August 2010 refer to “harassing phone calls” without specificity. There was no reference in the Grounds to threats of physical violence or to any form of death threat.

65. The defendant was closely cross-examined in relation to the “harassing phone calls” in the Grounds of Application. The Grounds said that the phone calls “… are from the [Ms Bathis-Brown] …”. In evidence the defendant said they were not made by Ms Bathis-Brown but were made by an unidentified male. As will be discussed below, the second plaintiff, Mr Bathis, admitted to making a phone call to the defendant in early 2010.

66. In the cross-examination on 31 March 2015 (commencing at T 104), the defendant was challenged in relation to his account of having received three calls within a two-week period after he returned to New South Wales.

67. His evidence was that the calls threatened him with physical violence and an additional threat that “they were going to kill me”: T106:1-5.

68. In cross-examination he stated that when filing the AVO application on 30 August 2010 he provided details to the Registrar of the court who typed up the application. It was put to him that he used the expression “harassing” phone calls but that there was no mention in the account set out in the Grounds of Application of serious threats of a criminal nature, that is, no mention was made of any threat or threats of physical violence or a threat of death. He was asked:

“Q.   Do you recall telling the registrar you had received some death threats?

A.   I’ve no idea at the time what I’ve told him. I can’t remember the conversation from five years ago with him.” (T 108:40-45).

69. He was cross-examined upon the statement in the Application that the threats were from Ms Bathis-Brown. It was put to him:

“Q.   Your evidence here today is that the calls were not from [Ms Bathis-Brown] but from other persons, correct?

A.   Well, actually that is correct because a third person – if I get someone to contact you, you are responsible for that action. She has – that’s right. If she hands out my number, if she’s forcing someone to contact me she is responsible for it. I told them at the registrar and they knew all about it. They said ‘that’s fine, take it out. If you believe they are the third person doing it’.

Q.   I want you to focus closely on my question. When your application says, ‘the PINOP feels that these calls are from [Ms Bathis-Brown]’, it is inaccurate because they were not from [her], correct?

A.   They were from her associates doing it, yes.

Q.   Did you tell the registrar that the calls were not from [Ms Bathis-Brown] but from other persons who you thought she might have been --.

A.   Yes I did.

Q.   --asking to make the calls?

A.   Yes, I did because they said you can put them both under the same thing because if you feel she is responsible for those calls, it’s her you can take the AVO out on. That’s what they told me.” (T 109:20-45)

70. The defendant’s evidence in this segment was far from impressive. He gave the distinct impression of crafting his answers to explain discrepancies as to the absence of any reference to threats of physical violence or death threats as well as his allegation that the phone calls had been made by Ms Bathis-Brown. Had in fact threats of death or physical violence been made, such threats would have gone well beyond “harassing” or occasional annoyance and would have been of such seriousness that one would have expected some reference to them in the Grounds of Application. There was in fact, of course, no mention of any such threats.

71. The defendant was also cross-examined on a statement he said was lodged in support of the AVO application, but sometime after the Application was filed. The statement contained 111 paragraphs and was included in a Court Book provided to the Court at pp 40-53. He was cross-examined on the fact that in para [109] of the statement he claimed that on at least three occasions he received “threatening” messages from the first plaintiff on MSN Messenger (not phone calls). Reference was made to “numerous death threats” being made by the second plaintiff.

72. The defendant was cross-examined, in particular, on statements made by him in para [110] of his statement where he said:

“I have provided the last 12 months of our conversation on MSN to back up my statement and show the amount of deceit Lauren has been involved in. I also have recordings and hundreds of messages on my mobile phone [number provided] showing that Lauren has constantly lied in her statements to police. She has had four mobile numbers.”

73. Behind the defendant’s statement at Court Book pp 54-55, was a list of alleged messages between the first plaintiff and the defendant which referred to date, time of message, email site and alleged statements under the heading “History”. The two-page document contains messages allegedly sent between 2 September 2010 and 16 November 2010. He was cross-examined on this material at T 101-112. The messages do not demonstrate or support the defendant’s statements of deceit. However, even if that construction were open, there is a very live issue as to the authenticity of the alleged MSN messaging.

74. By reference to the last entry, 16 November 2010, Mr Wilson asked the defendant whether it would be fair to conclude that his detailed statement had been made some time at or after that date. The defendant replied that he had “no idea” when the statement was made: T 111:15-20.

75. The defendant was challenged further in respect of the list of alleged messages sent by Ms Bathis-Brown between 2 September 2010 and 16 November 2010. Three pages of MSN messaging history between the same dates also comprised Exhibit 2 tendered by the defendant.

76. The defendant agreed in cross-examination that he had produced both the record attached to his statement and Exhibit 2. The mechanics or processes used by him to do this were not established in evidence. The two records of MSN communications were almost identical, however the defendant’s attention was drawn to the fact that whilst there was an entry for 16 November 2010 on page 2 of the history attached to his statement, the three-page document purporting to record MSN communications between 2 January 2010 and 16 March 2012 (Exhibit 2) omitted to include any alleged communication for 16 November 2010.

77. It was put to the defendant in cross-examination that he had created the documents:

“Q.   The fact is, you can’t explain why the entries for 16 November 2010 are on p 54 and 55 of the Court Book but not in Exhibit 2, can you?

A.   Probably because they just weren’t printed up at the time, that’s all.

Q.   Could it have been that you manufactured both of them and just forgot to put the 16 November 2010 in Exhibit 2?

A.   No, because if it was manufactured then wouldn’t it be already there? It kind of defeats the purpose, doesn’t it?

Q.   Mr Woods, you cut and pasted the creation of Exhibit 2 and you forgot to put in the 16 November 2010 entries which you fabricated; isn’t that the case?

A.   No, it’s not the case.” (T 115:15-30)

78. Whilst the evidence does not permit unequivocal finding as to fabrication of the documents, the discrepancy concerning the entry of 16 November 2010 (and I accept on the evidence it was a discrepancy) certainly provides grounds for suspicion as to the authenticity of the MSN messaging summaries referred to above. Without confirmatory evidence as to their authenticity it is impossible to accept them as authentic records of MSN messaging.

Defendant’s Withdrawal of the First AVO Application

79. The defendant agreed that on 29 April 2012, in respect of his application for an AVO filed 30 August 2010, the application came before the Wyong Local Court and the application was withdrawn.

80. The defendant initially agreed that he was in attendance at Court on 29 April 2012 (T 115:30-45), however, after further cross-examination his evidence changed. He gave evidence that Ms Bathis-Brown’s solicitor gave an undertaking that her client would not make any further contact with the defendant if he dropped the AVO matter. The defendant claimed that:

“… I agreed to this and was informed I no longer needed to attend court and the matter was dealt with.” (T 116:1-5)

81. It was then put to him:

“Q.   But did you go to Court on the occasion it was withdrawn?

A.   I don’t honestly. I can’t remember.

Q.   You don’t remember, do you?

A.   No.

Q.   You have no recollection of the events of that day at all, do you?

A.   As far as I know I was in the courtroom, because I can remember it, but I can’t guarantee, but as far as I know I was in the courtroom. You don’t even know if I was there, you just stated.” (T 116:10-20)

82. The account of the alleged conversation of an agreement having been reached with the plaintiff’s solicitor is one about which I have considerable doubt given the variability and inconsistencies that emerged in the defendant’s evidence in cross-examination.

83. Mr Wilson put to the defendant that Ms Bathis-Brown’s solicitor did not say to him what he alleged. The defendant maintained that he had said the words attributed to him.

84. As put in cross-examination, his recollection of what he says was said to him by the plaintiff’s solicitor is open to question in circumstances in which he said that he could not even recollect whether he was present at Court on 29 April 2012 or not.

85. The defendant, of course, has the evidentiary onus of establishing that the first plaintiff entered into an agreement, through her solicitor, not to make any “threatening contact” with him. Nonetheless, towards the end of the hearing I raised with Mr Wilson for the plaintiffs whether a Jones v Dunkel inference should be drawn in circumstances where the plaintiffs had omitted to produce any evidence as to what occurred on 29 April 2012 leading to the application being withdrawn. Mr Wilson acknowledged that the solicitor would undoubtedly be a witness “in (the plaintiffs’) camp” rather than in the defendant’s. He submitted nonetheless that no negative inference should be drawn and that Ms Bathis-Brown’s denial of any conversation taking place between her solicitor and the defendant should be accepted.

86. There are a number of matters relevant to the question as to whether or not any such agreement between Ms Bathis-Brown’s solicitors and the defendant was made leading to his withdrawal of his application. They include:

1. Although the defendant claimed that the most serious of threats were being made against him (of physical violence and death) the evidence indicates that he failed to take any step in pursuing the application filed on 30 August 2010 before it was dismissed on 29 April 2012.

2. Insofar as the evidence supports the inference that the defendant failed to pursue the application for the AVO filed on 30 August 2010, there was no demonstrable reasons as to why, as at 29 April 2012, he would have had any further concern of contact from the first plaintiff.

3. There was no note or other contemporaneous record of any “agreement” having been made as a basis for the dismissal of the application.

4. There is no evidence of any complaint by the defendant of the first plaintiff making contact with him in the period commencing on 29 April 2012 and prior to 3 September 2012.

5. The defendant’s general unreliability as displayed in the course of his evidence at the hearing.

6. The first plaintiff’s denial of any such agreement having been made.

87. Having given the evidence on this aspect close consideration, I am satisfied that it was not an agreed term of, or basis for, the withdrawal of the AVO application that the first plaintiff undertook not to harass the defendant. I consider Ms Bathis-Brown to have been a reasonable witness and I accept her evidence that no undertaking was sought or given as alleged. As noted above, on the evidence adduced in the proceedings, the defendant had done nothing to bring on or pursue his AVO application after filing it on 30 August 2010 and before its withdrawal on 29 April 2012. That is not consistent with any harassment of him or any threats being made in that period by Ms Bathis-Brown to the defendant.

88. In relation to the first AVO application made by the defendant, I note the following:

1. The defendant’s case was that three calls were received by him within a two-week period after he returned to New South Wales in August 2010 in which he said threats of violence and of death were made and these provided the grounds for his AVO application made on 30 August 2010. Upon consideration, I have concluded that his evidence in this regard should not be accepted. In coming to that conclusion I have taken into account the inconsistencies and other matters to which I have referred above.

2. In brief, the Grounds of the Application speak only of “harassing” phone calls. There is a marked difference between harassing conduct that annoys or disturbs or troubles another, and threats to inflict physical violence and/or death. No reference is made at all in the information to any threats of violence or death having been made against him either by the plaintiff or anyone else.

3. In addition, the reliability of the defendant’s evidence was directly called into question, he having set out in the Grounds of the Application that the alleged threats were made by Ms Bathis-Brown when in evidence he constructed a different situation involving a male caller.

4. When tested in cross-examination on the detail of the alleged threats as to physical violence or death the defendant was unable to say whether the threat to kill that he says was made, was made in one or other of the three calls that he said were made to him: T 106:5-15. He also qualified his evidence to say that there may not have been three calls but only two.

5. There is no evidence that the defendant ever reported any threats of physical violence or death to police.

6. In cross-examination he said that he did not recall what he had said to the registrar at the Local Court who assisted him when filing the application for the AVO on 30 August 2010: T 108. Additionally, he said that he could not recall whether he told the registrar that he had received “harassing” calls: T 108.

89. The first application filed by the defendant was not finally dealt with by way of final orders until the defendant withdrew it on 29 April 2012. The defendant sought to explain the delay as caused by negotiations with the first plaintiff’s solicitors although there is no evidence as to the dates or extent of any negotiations.

90. The defendant’s factual accounts given initially to the Registry at Wyong Local Court on 30 August 2010 and the later statement made by the defendant some time afterwards are not consistent with one another. The extent of the conduct reported when he made his application was that the defendant had received harassing phone calls, but when he came to provide his statement, it escalated from harassing conduct to conduct in which death threats were alleged to have been made by Kevin Bathis. It is noted that in the Grounds to the Application that no reference was made to Mr Bathis having made threatening phone calls. The Grounds in general form allege that Mr Woods “feels that these phone calls were from the defendant…”.

91. The disconformity in the factual accounts given by the defendant to which I refer brings directly into issue questions of his credibility in providing factual accounts exhibiting serious variations one from the other. The application was withdrawn. The only basis upon which he alleged he withdrew the application was that an undertaking was given that the first plaintiff would not contact him. This was disputed. The factual dispute can only be resolved by examination of the credibility of the defendant and the first plaintiff.

92. There was no apparent attempt by the defendant to subpoena or otherwise obtain the court file to confirm any undertaking, and the solicitor’s file was apparently not sought, by subpoena or otherwise, by him. I note that the plaintiffs did not tender any documents from the file. I have taken that into account. The defendant was the party asserting the fact of an undertaking allegedly given upon which he had at least an initial evidentiary onus.

93. In all the circumstances, including the adverse finding I have made as to the defendant’s credibility, I consider the first application was vexatious.

(2) Civil Proceedings Commenced by the Defendant

94. On 20 January 2011, the defendant commenced civil proceedings in the Wyong Local Court claiming an amount of $5,116.50 in respect of alleged unreturned goods.

95. The defendant attached a statement, dated 18 January 2011, to the Statement of Claim in which he claimed that Ms Bathis-Brown had failed to return items or goods including: earrings and a necklace valued at $799, a Nokia mobile phone ($199), repayment for an air ticket ($108.50) and cash in the amount of $4,000 alleged to have been sent by him to Ms Bathis-Brown.

96. The defendant obtained default judgment on 18 April 2011. There was evidence from Ms Bathis-Brown that she was never served with the Statement of Claim. On 8 August 2012, she applied to set aside the default judgment.

94. There is some confusion in the evidence concerning Ms Bathis-Brown’s knowledge of the default judgment which had been entered against her by the defendant. It is apparent that service of an enforcement summons was effected on Ms Bathis-Brown on 4 April 2012 (Exhibit 1). It seems then that she had knowledge of the proceedings at that point although she did not apply to set aside the default judgment until approximately four months later.

95. It was contended on her behalf that the defendant has not established a factual basis for commencing the proceedings and additionally that Ms Bathis-Brown had a good defence to the claim: Plaintiffs’ Outline of Submissions at [8]. Reliance in this regard was placed upon Ms Bathis-Brown’s affidavit in the Local Court proceedings (affirmed 3 August 2012) which was exhibited to her affidavit in these proceedings (LBB-6) and included an attached statement of facts in support of the application to set aside the default judgment.

96. A copy of the defendant’s Statement of Claim alleging debt was set out at page 57 of the Court Book in these proceedings. As mentioned above, the attached statement set out particulars of the claim. He therein alleged that the first plaintiff had not returned items of his for which he was seeking the cost or the return of goods.

97. In cross-examination it was established that:

• The earrings, necklace and a ring were purchased by the defendant and given to the first plaintiff as a gift: T 128:35-40.

• The pink Nokia mobile phone was delivered to the first plaintiff by the defendant in February 2010 and allegedly borrowed by the first plaintiff.

• As to the air ticket it was a disputed fact as to whether the defendant had asked the first plaintiff to come and visit him (and purchased the air ticket for that purpose), or not: T 128-129.

• As to the $4,000 in cash paid to the first plaintiff, the defendant agreed that she had not asked for the money.

101. There was evidence as to the first plaintiff having reported receipt of the $4,000 to police and having returned the same. The defendant acknowledged that the first plaintiff’s police statement in February 2010 recorded her account of having returned the money though he disputed the address to which she said she had sent it: T 130.

102. In cross-examination the defendant said that he had sent the $4,000 to the first plaintiff because of things she had told him about her family situation. He added: “I didn’t say she stole it”: T 130:45-46. He stated:

“… the reason I wanted it back is because I found out what she was – what I thought was happening was false, that’s why I wanted it back.” (T 130-131)

103. However, the defendant agreed that when he made a statement on 21 September 2012 in support of his second application for an AVO order he said he had commenced proceedings against the first plaintiff “to recover stolen money and items”: T 131:10-20 (emphasis added). That statement is inconsistent with his evidence in cross-examination referred to above (as to gifting objects and voluntarily sending her money).

104. In summary, the cross-examination established considerable doubt as to the validity of the small debt claim brought by the defendant against the first plaintiff. The securing of a default judgment appears on the evidence to be a classic example of “judgment snapping”. The default judgment was, as earlier noted, subsequently set aside on the first plaintiff’s application.

105. In the Plaintiffs’ Outline of Submissions it was noted that the defendant has not taken any steps to prosecute the claim on its merits: at [8]. In those circumstances I accept that the civil proceedings were vexatious.

(3) Second Application by Defendant for an Apprehended Domestic Violence Order

106. The defendant’s second application for an AVO (case number 2012/00274940) was filed in the Local Court at Wyong on 3 September 2012. The Grounds of Application were stated to be as follows:

“The parties were in a relationship for a period of about 18 months. This ended beginning January 2010. From that time [Ms Bathis-Brown’s] father commenced calling the [defendant] and made threats that [he] was going to hunt the [defendant] down. [Ms Bathis-Brown] was harassing the [defendant] by phone calls and with the internet. The [defendant] applied for an avo and consented to withdraw the application on the basis that [Ms Bathis-Brown] would not contact him any more.

It was quiet for a period of about four to five months and then towards the end of the year commenced again and has been worse since about May 2012. [Ms Bathis-Brown] was contacting [the defendant] by phone and her mobile. The [defendant] has changed his home phone number three times but [Ms Bathis-Brown] keeps obtaining it. [Ms Bathis-Brown] bullies the [defendant] by putting things onto the internet including youtube and also put a profile of [the defendant] onto a dating site and then sent the [defendant] the link. The profile is insulting. [Ms Bathis-Brown’s] father as recently as the 10.8.12 has also made threats against the [defendant]. On the 25.8.12, [Ms Bathis-Brown] threatened that she was going to burn the [defendant’s] house down. The [defendant] currently has a civil court order against [Ms Bathis-Brown] which was the subject of an application by [Ms Bathis-Brown] to set aside the judgment which will result in [Ms Bathis-Brown] continuing to contact and harass [the defendant]. The [defendant] fears that this will continue until [Ms Bathis-Brown] is restrained by way of court order.”(CB at p 70)

107. In the Plaintiffs’ Outline of Submissions it was noted that the second application for an Apprehended Domestic Violence Order made by the defendant was filed within one month (on 3 September 2012) of Ms Bathis-Brown’s application to set aside the default judgment which was filed on 8 August 2012. The submission was that the clear inference again was that the second application for Apprehended Domestic Violence Order was made for a collateral purpose, as a retaliatory action to Ms Bathis-Brown’s application to set aside the default judgment. In any event, so the submission ran, the application was an abuse of process as the defendant did not appear before the Local Court to prosecute the claim on 20 December 2012 or on 25 January 2013 when it was dismissed with an order for costs in favour of the first plaintiff. It was further contended that the defendant had failed to pay the costs order in the sum of $5,336: Plaintiffs’ Outline of Submissions at [9].

108. Mr Wilson in his opening address noted that the defendant did not attend court on 20 December 2012 but, as he understood it, had asked for an adjournment. On 25 January 2013 the defendant’s case was that his mother had died and he had to attend a funeral in Bathurst. Mr Wilson noted that the defendant said he applied to someone (unidentified) in the Court, without himself physically attending, to have it adjourned but the Court dismissed his AVO application with costs: T 35-45. I note that a Court Attendance Memo tendered (Exhibit B) indicates that the defendant had put in a written request for an adjournment prior to 25 January 2013.

109. There is no evidence of the defendant attending at the Court after 25 January 2013 to enquire into the outcome of the hearing on 25 January 2013. There is, in particular, no evidence of the defendant having taken any action to have his second AVO restored on the basis that he had been unable to attend on 25 January 2013. There is no evidence of him seeking to re‑lodge, if necessary, a further application in lieu of the application dismissed on 25 January 2013.

110. Finally, it was submitted in the Plaintiffs’ Outline of Submissions that the defendant had failed to establish that there was any factual foundation supporting the applications for Apprehended Domestic Violence Orders filed with the Local Court at Wyong on 30 August 2010 and 3 September 2012 against the first plaintiff: Plaintiffs’ Outline of Submissions at [10].

111. The facts asserted by the defendant in the Grounds of Application reproduced in para [106] above were the subject of significant dispute, with the defendant being cross-examined at some length on 31 March 2015: T 120-125.

112. It was put to the defendant in cross-examination that the real motivation for his second application for an AVO on 3 September 2012 was as a responsive act to the first plaintiff’s application to set aside the default judgment he had obtained against her:

“Q.   Your 2012 application for an apprehended violence order was a direct response to the application by Ms Bathis-Brown to set aside the default judgment, wasn’t it?

A.   No, it wasn’t.” (T 124:35-40).

113. It had earlier been put to him:

“Q.   Are you saying then that in the last four or five months before you filed the application in September 2012, things had been quiet. Is that what you are saying?

A.   It had been quieter before I started getting problems, yeah.” (T 120:10-15)

114. Relevant to considering the validity of the second application is evidence from proceedings which occurred later in time. As the chronology identifies, in 2012 the first plaintiff applied to extend her Protection Order against the defendant. The decision of the Magistrates Court at Cleveland to make an extension was successfully appealed by the defendant and the matter was remitted to the Magistrates Court. These events will be detailed further below. It is relevant to note in the context of the defendant’s second application that in the course of proceedings heard in the Magistrates Court at Cleveland on 26 February 2014, upon the matter being remitted, the defendant made statements to the Magistrate concerning the circumstances behind his second application. The transcript records Mr Love, who appeared on behalf of Ms Bathis-Brown on that occasion, referring to the fact that two AVO applications had by then been filed by the defendant as well as a Statement of Claim against Ms Bathis-Brown for debt in the Local Court (which Mr Love referred to as “… a vexatious Statement of Claim”) all of which Mr Love claimed had put his client, “… to trouble and expense”: T 26 February 2014 at p 7.

115. The defendant is recorded as responding to Mr Love’s comments on the first and second AVO applications by him at the transcript of 26 February 2014 at pp 7 – 8 as follows:

“Respondent:   Firstly, the order actually expired in 2012, not last year. So that information’s incorrect. This one’s actually been going on since she had a judgment against her – it wasn’t vexatious – in relation to monies that were owed. She just basically lied, stating she never got the forms from the court, etc etc so they had to put it aside to give her the [indistinct] hasn’t been yet. The AVOs were not vexatious in the slightest because the first one was taken out after I received phone call threats, which I have, and I’ve got here today, along with email messages galore, MSN messages galore from the person threatening me. Along with that – that was only dropped after speaking to her lawyer and they agreed not to contact me again, which hasn’t happened. And the only reason I’ve taken one out again after that was because she started taking another one out up here in relation to the debt owed and I had to cover myself and protect myself. So as – she continued to do that, so I took another one out and used the threats I had before to take out the AVO again. There’s nothing vexatious whatsoever in it.

Bench:   So when you say you used it again, are you recycling old material?

Respondent:   No, it’s the same stuff I’ve had before. She’s had – I’ve had absolutely no contact with her in four years – none. She sat there with a phone call stating I’d made a phone call which she said the police traced to [indistinct] which is ---“

116. I note at this point the following observations:

1. The defendant placed no reliance when addressing the Magistrates Court (set out above) upon the series of allegations contained in his “Grounds” for the AVO application filed by him on 3 September 2012.

2. The defendant told the Magistrate that the two reasons for taking out the second application were, firstly, the “phone call threats” etc which also prompted him to take out the first AVO and, secondly, that “the only reason” that he took out the second application was “… because she started taking another one out up here in relation to the debt owed and I had to cover myself and protect myself …”.

117. It was then that the Magistrate intervened querying whether he was “recycling old material”. Although the defendant responded in the negative he then stated “it’s the same stuff I’ve had before” without any particularisation or any specific reference to any fresh or new threats having been made to him by phone by anyone.

118. These matters reflect adversely both upon the defendant’s credibility and the question as to whether there existed any proper or reasonable basis for his second AVO application.

119. It is apparent from the transcript extracted above, and the evidence referred to above, that Ms Bathis-Brown’s application to set aside the default judgment played a material part in the defendant’s decision to file the second AVO application. In cross-examination in the present proceedings he was asked:

“Q.   Reading paragraph 23, it was the events since the small claims hearing which caused you to bring the September 2012 second application for an apprehended violence order; is that correct?

A.   No.” (T 135:30-35)

120. However, a little later the defendant claimed that the second application arose “after the small claims hearing because of what had been going on …”. He claimed that he had “no choice” but to take out the AVO: T 135:35-45. See also T 135:40-50.

121. The Grounds stated in the defendant’s second application for an AVO contained general allegations, in particular that Ms Bathis-Brown had bullied him by putting insulting things about him on the internet and a dating site. The most serious allegation was that Ms Bathis-Brown had threatened to burn the defendant’s house down, which Ms Bathis-Brown denied. Such a serious threat being made, the defendant could be expected to have taken prompt steps to report the matter and seek an order on an urgent basis. However, the subsequent history of the matter demonstrates that the hearing of the application on 20 December 2012 was adjourned on the defendant’s application. The defendant’s failure to attend on the adjourned date of 25 January 2013 was said to have been related to his mother’s funeral. Again, if a threat had been made to burn his house down, it would be expected that an urgent application would have been made before that date or by way of a fresh application being filed. As stated, this did not occur.

122. Upon consideration of the evidence I do not consider that the defendant has established there were reasonable grounds for the second application to the Court for an AVO.

(4) The Defendant’s Appeal to the Queensland District Court (2013)

123. As previously mentioned, on 31 October 2012 the first plaintiff’s Protection Order against the defendant was extended for two years. On 11 January 2013, the defendant filed a Notice of Appeal in the Queensland District Court in respect of the judgment given on 31 October 2012.

124. Whilst the defendant’s appeal to the Queensland District Court was allowed on 13 June 2013 and remitted to the Magistrates Court for hearing, the ultimate outcome for the first plaintiff’s application was adverse to the defendant.

125. On 26 February 2014, the Cleveland Magistrates Court (Magistrate Sarra) made an order pursuant to s 91 of the Domestic and Family Violence Protection Act 2012 (Qld) in favour of Ms Bathis-Brown against the defendant in the following terms:

“Respondent:   David WOODS

Aggrieved:   Ms Lauren Ann BATHIS-BROWN

It is ordered that the protection order made at Magistrates Court Cleveland on 31/10/212 be varied to read as follows:

(1)   The respondent must be of good behaviour towards the aggrieved and must not commit domestic violence.

(2)   The respondent must be of good behaviour towards any named person in this order and must not commit an act of associated domestic violence against the named person.

(3)   The respondent is not to contact, try to contact or ask someone else to contact, the Aggrieved or any other Named Person listed in this order, either directly or indirectly, by writing, telephone, e-mail, texting, or any other means of communication.

(4)   The respondent is not to go to, enter, or remain in any place where the Aggrieved or any other Named Person listed in this order is living, staying, or working.

(5)   The respondent is not to stalk nor follow the Aggrieved or any other Named Person listed in this order, nor loiter outside the Aggrieved or any other Named Persons residence, or workplace of such other place that the Aggrieved or other Named Person frequents.

The respondent was present in Court when this order was made.

THIS ORDER SHALL UNTIL FURTHER ORDER CONTINUE IN FORCE TO AND INCLUDING 25/02/2020.”

126. A copy of the Protection Order as varied was exhibited to Ms Bathis-Brown’s affidavit (Exhibit LBB-8).

127. As mentioned, a copy of the transcript of proceedings before Magistrate Sarra of 26 February 2014 was also annexed to the affidavit. On that occasion, Ms Bathis-Brown was legally represented. The defendant was self-represented.

128. Mr Love, who appeared on behalf of Ms Bathis-Brown before Magistrate Sarra, stated at T 7 that the basis for the application was an alleged breach of the Protection Order by reason of a telephone communication. He also stated:

“… there’s also been an ongoing issue with vexatious proceedings being commenced in the Wyong Court. There’s been, so far, two AVOs filed and a vexatious Statement of Claim, all of which have put my client to trouble and expense. And it indicates, in my submission, an ongoing obsession with my client, that is he simply won’t keep his distance and will continue to file documents …”

129. In response the defendant is recorded at T 7 denying that the civil proceedings were vexatious and also denying that the applications for AVOs were vexatious, it being contended by him that he had received phone call threats, email messages and MSN messages threatening him. It appears that the submission made by the defendant in this regard was not supported by any admissible evidence.

130. Based on the transcript the Magistrate appears to have proceeded on the first plaintiff’s affidavit evidence before the court, there being no other evidence called on the factual matters raised therein, the defendant simply having proceeded by making a number of unverified statements in the course of exchanges with the Bench.

131. The defendant unsuccessfully appealed the decision of Magistrate Sarra and his appeal was dismissed on 14 August 2014: T 17:45-50.

132. Given that the defendant’s first appeal to the Queensland District Court was successful, and without having the benefit of that Court’s reasons in relation to either appeal, it cannot be said that the appeals lacked merit or prospect.

(5) Defendant’s Third and Fourth Application for Domestic Violence Orders: February 2014

133. On 28 February 2014, the defendant filed two applications, one being a further application for an Apprehended Domestic Violence Order against Ms Bathis-Brown (case no. 2014/63258) and the other an application for an AVO against her father, Kevin Bathis (case no. 2014/00063277). A copy of the application against Mr Bathis was exhibited to the first plaintiff’s affidavit (Exhibit LBB-10). A copy of the application against the first plaintiff was separately tendered and marked as Exhibit A in the present proceedings: T 17.

134. The lastmentioned AVO applications by the defendant have been adjourned pending determination of the present proceedings: T 17:40-45. It is noted that the two AVO applications were filed on 28 February 2014, two days after Magistrate Sarra’s decision in the Cleveland Magistrates Court extending the Protection Order in favour of Ms Bathis-Brown.

133. In the Plaintiffs’ Outline of Submissions at [12], it was submitted that there is no factual basis for the applications filed on 28 February 2014. It was also submitted that they constitute an abuse of process.

134. I have referred earlier to the transcript of proceedings before the Cleveland Magistrates Court (Magistrate Sarra). That transcript of the proceedings on 26 February 2014 recorded the following exchange between the Magistrate and the defendant at T 21:1-20:

“Bench:   … but what I’m prepared to do today is I am satisfied that there is sufficient basis to grant the order. Now, what I propose to do is I’m going to look at that order that was made on 31 October 2012 and I’m going to extend that for a period of two years from today’s date.

Respondent:   And if [indistinct] to do with my life, you stupid arsehole, fuck me.

Bench:    No, don’t …

Respondent:   Four years, four years I haven’t had contact with her and now you’re saying you’ve got no rights to be putting an AVO on me for that – it’s been four years. I want nothing to do with her and you just keep slapping AVOs on. This is the third one.

Bench:      All right.

Respondent:   Forget it. It’s done. I’ll take it and put one out in New South Wales.”

137. The Grounds of the defendant’s Application against the first plaintiff were in the following terms:

“The applicant relies on the following grounds:

The parties were involved in an intimate relationship that finished approximately 4 years ago.

The defendant current [sic] resides in Queensland, however, the applicant says she continues to threaten and harass him by way of telephone calls and on-line messaging. Threats have included a threat to burn his house down. The applicant also believes that the defendant has incited her father (against whom an ADVO is also sought) to contact the applicant and make threats to the applicant.”

138. A number of observations may be made about these grounds. Firstly, the Grounds do not provide any particulars or specificity as to any threat or harassment alleged against the first plaintiff, simply referring to her alleged continued threats and harassment without any supporting detail.

139. Secondly, the “threats” referred to are stated to include a threat to burn the defendant’s house down. Again, there is no specificity or particulars provided as to date or occasion or terms in which the alleged threat is said to have been made.

140. Thirdly, there are no particulars and there is no specificity in the general allegation as to the defendant’s belief that the first plaintiff had incited her father to contact the applicant as alleged.

141. The Grounds of the defendant’s application against the second plaintiff, Mr Bathis, firstly, rely upon alleged conduct in November and December 2013 in which he claims that voice messages were left on his phone in the following words: “I’m going to hunt you down like a dog and kill you”.

142. The Grounds to the application then referred to “similar behaviour from the defendant” as having occurred in 2010. That is in the application, I should make clear, against Mr Bathis, the second plaintiff.

143. That is then followed by the statement in the Grounds “the applicant is fearful that [this] will re-occur, especially now that he is applying for a domestic violence order against the defendant’s daughter.” It should be noted that Mr Bathis admitted in cross-examination to making a threatening phone call to the first defendant in February 2010 but denied making any phone calls after that time.

144. It is to be noted that following the second application made by the defendant for an AVO made on 3 September 2012, no additional or further allegations of threats made after that date by either of the plaintiffs was alleged until the defendant filed the applications against them on 28 February 2014. The only intervening event of any materiality or relevance is the fact that on 26 February 2014 Magistrate Sarra extended the Protection Order in favour of Ms Bathis-Brown for a six-year period. The recorded statement made by the defendant to the Magistrate on 26 February 2014 plainly indicates that the applications filed on 28 February 2014 were retaliatory to the making of the extended Protection Order on 26 February 2014 and that there were no other intervening facts or events by way of threats or harassment by either of the plaintiffs towards the defendant. In other words, the two applications filed by the defendant on 28 February 2014 were without any reasonable grounds and constitute an abuse of process.

Alleged Breach of Protection Order by the Defendant

145. It is necessary to address the factual dispute surrounding Ms Bathis-Brown’s allegation that the defendant breached the Protection Order she had in place against him by making a phone call to her on 22 February 2011 referred to above at [34].

146. Ms Bathis-Brown gave evidence in her affidavit that she received a call on that date and heard a male voice who said words to the effect of, “Hello, I have taken pills and I am going to die”: Affidavit of Lauren Bathis-Brown at [16]-[17]. She stated that she initially thought the caller was a friend so spoke to him and told him to call an ambulance. She stated:

“19   The male caller then said ‘I’m going to die and I’m not going back to jail again, because I called you’. From this statement I then realised that the caller was David.

20   I then asked David, ‘How did you get my number?’ David then replied with words to the effect, ‘I’ve had your number all along’. At this point I took the phone away from my ear and hung up on him.

21   I subsequently immediately called my mother and whilst I was on the phone to her I kept getting an incoming call from a private number on the call waiting function on my mobile phone.”

147. As mentioned above, the defendant repeatedly denied making the phone call. To corroborate his denial he relied upon a document exhibited to his affidavit of 20 October 2014 (Exhibit A4). The document was part of the records of Cleveland Police which dealt with a statement made by Ms Bathis-Brown to the police on 23 February 2011 in relation to the alleged phone call. The defendant did not deny that Ms Bathis-Brown had formally reported the incident but said the records comprising Exhibit A4 cast doubt upon her report. In cross-examination he was asked by Mr Wilson:

“Q.   You rang Ms Bathis Brown on 22 February 2011, didn't you?

A. No, I actually believe the date that you've got incorrect, that she's trying to make out I called, was 19 February. She actually went to the police station on 22 February. The police report which I've received from the police ethics unit I think it was exhibit A4 maybe clearly states it was not me. If there was a call it wasn't me, anyway. So the police seemed to would disagree with what you state.

Q.   You rang Ms Bathis Brown on her mobile at 11.09 on 22 February 2011, didn't you?

A.   No, I did not, as the police and I both state.” (T 125: 40-50).

148. Exhibit A4 was heavily redacted. As such, at the conclusion of the hearing on 31 March 2015 I directed the plaintiffs to make inquiries of the Cleveland Police as to whether or not an unredacted copy of the records could be obtained and forwarded to my associate. The plaintiffs issued a subpoena to the Queensland Police on 13 April 2015 in response to which various documents were produced including the first plaintiff’s police statement dated 23 February 2011.

149. The police records dealing with Ms Bathis-Brown’s report of the alleged telephone conversation, is identified as ‘Report no. QP1100159087’. Although the document was not subsequently formally tendered by the defendant, I have made allowance for the fact that he is not legally represented and the last mentioned report is plainly relevant to the issues raised during the hearing. I have accordingly marked it as Exhibit 4.

150. The document indicates that the report was made on 23 February 2011. On 15 March 2011 its status was stated to be “unfounded”. The following comments were included on page 3 of the document under the entry for 15 March 2011:

“The alleged breach of Domestic Violence Order occurred as a result of an alleged phone call made by the Respondent to the Aggrieved at the nominated date and time, which was displayed on the Aggrieved’s mobile phone as a private number. Reverse CCR checks were conducted by the Wynnum District Intel Office with providers Telstra, Vodafone and Optus, which established there was no record of any call made to the Aggrieved’s mobile phone at the nominated date and time of the offence. Due to this information the evidence indicates the offence did not occur and this matter has been unfounded…” (Emphasis added).

151. Subsequent entries in relation to report no. QP1100159087 deal with other alleged breaches of the protection order and investigations by the police. The final entry on 17 August 2011 confirms the report’s status as “unfounded” and this is said on p 5 of the report to be “due to lack of evidence linking the respondent/suspect to the mobile phone used…”.

152. It is apparent that the alleged telephone call, said to be a breach by the defendant of a Protection Order, was relied on by Ms Bathis-Brown to some extent in her applications to the Magistrates Court in Cleveland to extend the Protection Order. The transcript of proceedings on 26 February 2014 before Magistrate Sarra records the following exchange:

“Bench:   ….I’ve had the opportunity to talk with your counsel, Mr Love, and I have had an opportunity to talk to David in regard to his position. Now, he’s saying to me quite clearly that he wants to have nothing more to do with you. He wants to get on with his life and get on with it without any more contact with you whatsoever. What do you think about that?

Aggrieved:   I don’t think it’s true. He – with my first application I did get that phone call where he was threatening to kill himself. He wanted me to listen to him basically…

Bench:      When did that come through?

Mr Love:    I’ll just find a date, your Honour.

Aggrieved:   I’ll just find the exact date for you.

Respondent:    They’re saying three years ago.

Bench:      Is that the basis for the application, Mr Love?

Mr Love:    No, the basis for the – that’s one of the issues, again, we’re just looking at special reasons to stand.

Bench:   And when people threaten to kill themselves that comes within the definition of domestic violence.”

153. I am not satisfied that the information contained in the police report proves determinatively that Ms Bathis-Brown fabricated the telephone call she alleges she received. However, the evidence casts doubt upon the incident and her evidence given in proceedings in this Court and below. Overall I am not satisfied, given the evidence, that the inconsistency arising in respect of Ms Bathis-Brown’s evidence on the question of the alleged contact by the defendant on 22 February 2011 is material to evaluating the merits and nature of the proceedings commenced by him against her in light of the reasons that have been given in the remainder of this judgment.

Plaintiffs’ Final Submissions

154. In the Plaintiffs’ Outline of Submissions it was submitted that the four sets of proceedings instituted by the defendant against the first plaintiff were vexatious. In that respect the plaintiffs relied upon the following:

“If, as is submitted, the four applications by the Defendant for an Apprehended Domestic Violence Order and the civil proceedings in the Local Court at Wyong constitute an abuse of process and were retaliatory in nature, they can only have been commenced in order to harass and annoy the First Plaintiff (and the Second Plaintiff in the case of the 28 February 2014 application against him)”. (Plaintiffs’ Outline of Submissions at [13])

155. As noted above, the plaintiffs’ contention was that within the period of three and a half years from 30 August 2010 until 28 February 2014, the defendant commenced the abovementioned proceedings against the first plaintiff, each of which constituted an abuse of process and were designed to harass and annoy her.

156. As to the proceedings commenced on 28 February 2014 against the second plaintiff, it was also contended that those proceedings were an abuse of process and were designed to harass and annoy. It was submitted:

“… there is a clear case that the Defendant is a person who ‘has frequently instituted or conducted vexatious proceedings in Australia ‘within the meaning of s 8(1)(a) of the Act.”

The Evidence of Ms Bathis-Brown

157. Ms Bathis-Brown’s affidavit evidence was supplemented by oral evidence given on 30 March 2015 on which date the defendant cross-examined her: T 60-65.

158. The cross-examination focussed on a number of issues including those referred to below. The defendant at times appeared to direct questions on matters that may strictly be relevant in Protection Order (or AVO) proceedings rather than in proceedings brought under the Act. The matters raised by the defendant with the first plaintiff challenged Ms Bathis-Brown’s evidence as to whether he made certain calls to her and additionally whether or not she sent MSN messages to the defendant after 2010.

159. Apart from the evidence contained in the police records which relates to the alleged call said to have been made on 22 February 2011 in breach of the Protection Order in place (see from [145] above), I do not consider that any other evidence elicited by the defendant in the cross-examination of Ms Bathis-Brown undermined the evidence she had relied upon in the Cleveland Magistrates Court when applying for the Protection Order made in her favour on 26 February 2014. Whilst the evidence is very limited, the Cleveland Magistrates Court, it appears, accepted that the evidence before it was such as to justify an extension of the Protection Order earlier made for a further six‑year term. Nor did the defendant’s cross-examination of Mr Bathis elicit evidence relevant to any material issue in the vexatious proceedings claim brought by the plaintiffs.

The Evidence of Mr Bathis

160. It was put to the defendant, contrary to the grounds stated in his application for the AVO, that apart from the message left by Mr Bathis on his phone in February 2010, there were no other calls as alleged by him made by Mr Bathis. The defendant asserted that there were: T 84:20-25.

161. Mr Bathis, in addition to his affidavit evidence affirmed 27 August 2014, gave oral evidence on 30 March 2015: T 68-74. He was also cross-examined by the defendant at T 74-84.

162. His evidence was that the defendant rang him a number of times in February 2010 and also sent text messages. He said that the verbal communications by phone resulted in threats being made by each of them to one another: Affidavit of Kevin Bathis at [7].

163. He stated that several weeks after the Protection Order was extended by Magistrate Sarra he was served with an application for a Domestic Violence Order filed by the defendant and that a similar application was also served upon his daughter: Affidavit of Kevin Bathis at [20].

164. Mr Bathis denied the allegations outlined under the heading “Grounds of Application”. He said that he had never telephoned the defendant or left messages on his phone. He said he was not aware of his personal telephone number: Affidavit of Kevin Bathis at [21].

165. Mr Bathis further stated that he had no contact with the defendant since early 2010 when he was in Queensland.

166. During the course of the hearing the defendant produced two recordings which he indicated he wished to rely upon. The first was said to be a recording of a telephone call in which he alleged Mr Bathis had threatened him. He said that the call had taken place a few days before giving evidence on 30 March 2015: T 40-41. The recording was marked as MFI-2 at T 41.

167. Mr Wilson was granted leave to uplift MFI-2. He stated that having listened to it there was nothing in the recording which linked it to Mr Bathis. Mr Wilson stated that the recording contained the words “Hello fucker, don’t you fucking get an AVO on Lauren or you’re dead”: T 43. Mr Wilson noted that the voice did not sound like that of Mr Bathis at all. There was said to be no way of identifying who said the words recorded: T 43.

168. The second recording was A8 to the defendant’s affidavit. It was marked with the date 17 January 2011. Mr Bathis in his oral evidence was asked about the recording, which is a compact disc. It was put to him that it commenced with the words “talk about being a man, you’re not a man, you’re a snake’s belly” and ended with the words “I’ll hunt you down you dog”. Mr Bathis agreed that he said those words: T 69:30-35. He said to the best of his recollection the words were said in February 2010 on the phone: T 69:40-45.

169. Mr Bathis said that the phone call he was referring to was that detailed at para [7] of his affidavit: T 70:10-15.

170. Mr Bathis was adamant that he had never spoken to the defendant in 2011: T 70:30-35; 45-50.

171. Mr Bathis was briefly cross-examined at T 72. I do not consider that any matter that arose in cross-examination was relevant to the vexatious proceedings.

Evidence of the Defendant

172. Mr Woods was cross-examined on 30 March 2015 at T 74-84.

173. It was put to the defendant that he met Ms Bathis-Brown on an internet dating site and introduced himself by the name of ‘Mark’. He said that he had “no idea” whether he had done so, but he had used that name before: T 74:5-25.

174. It was put to the defendant that upon his release from prison in Queensland on or about 19 August 2010 he returned to his home at Charmhaven on the Central Coast and within approximately two weeks of being released commenced proceedings in the Local Court at Wyong for an Apprehended Domestic Violence Order against Ms Bathis-Brown. He agreed. It was put to him that Ms Bathis-Brown had not contacted him by phone at all in the period between his release and 30 August 2010. The defendant did not deny the proposition but stated that Ms Bathis-Brown, “would have contacted me or someone to do with her would have …”: T 78:40-45.

175. He then stated that he received a message or messages from Ms Bathis-Brown in that time period: T 78:50. It was put to him that no messages had been sent by her. It was also put that the MSN messages which he had produced to the court, said to have been sent by the first plaintiff after February 2010 were fabrications. He denied that they were: T 79:1-5.

176. It was put that they were “made up” by him deliberately for the purposes of advancing his defence to the present claim, which he denied: T 79:5-10.

177. He agreed that as at 30August 2010 the relationship had ended, that he wanted no contact with Ms Bathis-Brown and that the relationship between them was the reason that he went to prison: T 79:20-30.

178. It was put to the defendant that proceedings instituted in the Wyong Local Court by him were “a retaliation of Ms Bathis-Brown having obtained a protection order against you in Queensland, wasn’t it”. He responded “No, that’s not correct”: T 79:45-50:

179. Mr Wilson cross-examined the defendant on the transcript of proceedings heard by Magistrate Sarra: T 80:20-50. It was put to him that the Magistrate stated that he was satisfied that there was a sufficient basis to grant the protection order and proposed to make such an order and extend it for a period of two years. A little after this the defendant agreed that he lost his temper in court. The following example from the transcript was put to him:

“… then the magistrate says ‘Alright’ then you say, forget it it’s done. I’ll take it and put one out in New South Wales [a reference to taking out an AVO]”: T 45-50.

180. It was put to the defendant that what he was saying to the magistrate was that, if he was going to extend the AVO for two years he could “forget it” because the defendant would go to New South Wales and take out an AVO application in respect of the first plaintiff. The defendant denied in evidence that this was what he was intending. However, that is clearly what he said he would do.

Additional Findings and Conclusions

181. The relatively short relationship between the first plaintiff and the defendant, effectively terminating in 2009, has since then been followed by ongoing hostilities with applications by both parties against each other. Ms Bathis-Brown initially commenced proceedings for an order in the nature of a Domestic Violence Order against the defendant in the Cleveland Magistrates Court, Queensland. Those proceedings, as has been discussed, were subsequently followed by criminal proceedings instituted against the defendant on charges of unlawfully stalking the first plaintiff and using a postal service to harass, resulting in his imprisonment for a period of five months.

182. The hostilities between the parties accordingly have now been on foot for over five years. In such circumstances it is of central importance that the evidence, and in particular the credibility, of each of the parties to the present litigation be carefully scrutinised having regard to the evident animosity between them. Given the nature of the hostilities and the litigious relationship between the first plaintiff and the defendant, the risk of distortion or exaggeration, or fabrication, is one to be borne in mind when assessing the evidence. I have throughout sought to examine, analyse and assess the evidence of the first and second plaintiffs and the defendant with that in mind.

183. It is necessary at this point to refer to the onus of proof.

184. The plaintiffs, of course, carry the legal onus of establishing that the respective proceedings instituted by the defendant against each of them were vexatious proceedings.

185. To that end, the plaintiffs relied upon the evidence contained in their respective affidavits and upon the oral evidence each gave to this Court on 30 March 2015.

186. Apart from her evidence as to the alleged events arising out of her relationship with the defendant, Ms Bathis-Brown additionally relied upon evidence of the fact of her successful Protection Order applications and, in addition, upon the defendant’s failure in seeking orders against her in applications brought by him in proceedings instituted on 30 August 2010 and 3 September 2012.

187. Ms Bathis-Brown also relies upon her successful application to set aside the default judgment that the defendant had entered in his favour. As earlier noted, it was submitted on the first plaintiff’s behalf that the above proceedings commenced by the defendant against her were instituted without reasonable grounds and/or constituted an abuse of the process of the courts in which the proceedings were brought and/or were instituted in order to harass or annoy her.

188. The Protection Order and extension applications successfully made by Ms Bathis-Brown against the defendant were supported by her sworn evidence in the particular courts in which she was successful. She, as earlier noted, had given a detailed statement to police at an early date (17 February 2010). The success by Ms Bathis-Brown in the AVO proceedings commenced by her may be explained by the following matters:

• Ms Bathis-Brown provided sworn evidence in support of her applications for Protection Orders. The defendant, on the other hand, failed to adduce sworn evidence in order to dispute matters Ms Bathis-Brown relied upon in her affidavit evidence or in order to establish any particular factual matters unfavourable to Ms Bathis-Brown and favourable or supportive of his position or possible defence in those proceedings.

• The defendant did not, either by tendering evidence or by cross-examination of Ms Bathis-Brown in her successful proceedings in the Cleveland Magistrates Court establish that her evidence was false, misleading, incomplete or erroneous in any relevant respect or detail.

189. Similarly, although the defendant’s AVO applications identified “Grounds” for the orders sought by him, many of the matters set out by the defendant in the Grounds contained quite general allegations unsupported by detailed admissible affidavit evidence. The defendant’s failure or lack of success in each application brought by him is accordingly readily explained, at least in part by that fact.

190. Whilst, as I have stated, the plaintiffs carry the onus of proof of establishing that the proceedings instituted by the defendant were vexatious proceedings, insofar as the defendant has chosen to contest these proceedings by raising serious allegations against both plaintiffs, including allegations of threats having been made by the first plaintiff (including a threat to burn down his house) and threats allegedly made by the second plaintiff, her father, of physical violence and even of death, the defendant carries the evidentiary onus to establish, to the requisite standard, the truth of the allegations he makes. Each of those allegations, of course, is of the most serious kind. Accordingly, there is a general requirement on the defendant to adduce cogent evidence to support such allegations made by him. For reasons set out in this judgment, the defendant has failed to do so.

191. As discussed below, the applications for Apprehended Violence Orders taken out by the defendant, in each case, quickly followed applications made by Ms Bathis-Brown for Protection Orders as well as her application to set aside the default judgment obtained by the defendant. In the absence of cogent evidence by the defendant, the timing of his applications cannot be said to have been merely coincidental:

• The defendant’s first application was made eleven days after Ms Bathis-Brown applied for a Protection Order.

• The defendant’s second application made on 3 September 2012 was made within one month of Ms Bathis-Brown making an application to set aside the default judgment entered in favour of the defendant on 18 April 2011.

• The defendant’s third application for an AVO on 28 February 2014 against the first plaintiff, and his application against the second plaintiff filed on the same date, were filed two days after Magistrate Sarra extended the Protection Order for a period of six years.

192. In the absence of any contrary evidence capable of explaining any apparent coincidence in the timing of the defendant’s AVO applications, the inference as to the retaliatory nature of the defendant’s AVO applications relied upon the plaintiffs was available to be drawn, indeed in my assessment, the inference is a compelling one.

193. Overall I consider Ms Bathis-Brown and her father, Mr Bathis, to have been satisfactory witnesses. I did not gain the impression from seeing them and hearing them give evidence that they were evasive or lacking in credibility.

194. I have accordingly concluded, for the reasons set out above, that the three applications made by the defendant for AVO orders against the first plaintiff and the application for an AVO made against the second plaintiff were each made without reasonable grounds, were an abuse of process, and each constituted vexatious proceedings within the meaning of s 6 of the Act.

195. Accordingly I make orders in the following terms:

Orders

1. Pursuant to s 8(7)(a) of the Vexatious Proceedings Act 2008 (“the Act”), the whole of proceedings no. 2014/63258, commenced by the defendant against the first plaintiff on 28 February 2014 in the Local Court at Wyong for an Apprehended Personal Domestic Violence Order, is stayed.

2. Pursuant to s 8(7)(a) of the Act, the whole of proceedings no. 2014/63277, commenced by the defendant against the second plaintiff on 28 February 2014 in the Local Court at Wyong for an Apprehended Personal Domestic Violence, Order is stayed.

3. Pursuant to s 8(7)(b) of the Act, the defendant is prohibited from commencing proceedings in New South Wales against either the first or second plaintiff in which orders in the nature of Apprehended Violence Orders are sought.

4. Unless written application is made to my Associate within seven days for a different order, order the defendant to pay the plaintiffs’ costs of the proceedings.

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Amendments

11 September 2015 - Correction of counsel's name on the Coversheet

Decision last updated: 11 September 2015