FEDERAL COURT OF AUSTRALIA
Commonwealth of Australia v Scott [2011] FCA 768
Citation: Commonwealth of Australia v Scott [2011] FCA 768 Parties: COMMONWEALTH OF AUSTRALIA v RALPH SCOTT and SOPHIE SCOTT File number: VID 402 of 2011 Judge: NORTH J Date of judgment: 20 June 2011 Date of hearing: 20 June 2011 Place: Melbourne Division: GENERAL DIVISION Category: No catchwords Number of paragraphs: 23 Counsel for the Applicant: Mr P Ginnane Solicitor for the Applicant: Australian Government Solicitor Counsel for the Respondents: The Respondents appeared in person
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 402 of 2011
BETWEEN: COMMONWEALTH OF AUSTRALIA
ApplicantAND: RALPH SCOTT
First RespondentSOPHIE SCOTT
Second Respondent
JUDGE:
NORTH J
DATE OF ORDER:
20 JUNE 2011
WHERE MADE:
MELBOURNE
THE COURT ORDERS THAT:
1.The respondents may not institute any proceeding in the Federal Court of Australia without leave of the Court.
2.The affidavits and submissions filed on behalf of the parties in VID 1020 of 2008, in support of, and in opposition to the notice of motion filed on behalf of the second respondent in that proceeding on 23 June 2009 be treated as filed in this application.
3.The respondents pay the costs of the applicant including costs incurred by the applicant in relation to the preparation of affidavits and submissions filed on its behalf and appearances made in relation to its application, but not in relation to the drawing and filing of the notice of motion itself.
Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.
The text of entered orders can be located using Federal Law Search on the Court’s website.
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
VID 402 of 2011
BETWEEN: COMMONWEALTH OF AUSTRALIA
ApplicantAND: RALPH SCOTT
First RespondentSOPHIE SCOTT
Second Respondent
JUDGE:
NORTH J
DATE:
20 JUNE 2011
PLACE:
MELBOURNE
REASONS FOR JUDGMENT
On 2 December 2010, the Court dismissed proceeding VID 1020 of 2008 brought by the respondents against the applicant, the Commonwealth of Australia (the Commonwealth), for the reason that they had no reasonable prospect of successfully prosecuting the proceeding and that it was an abuse of process. In that proceeding, the Commonwealth, the Commonwealth of Australia, filed a notice of motion on 23 June 2009, seeking orders, including under O 21 r 1 of the Federal Court Rules, relating to vexatious litigants. The motion of the Commonwealth was adjourned at the end of the hearing of that proceeding to await judgment on the substantive issues.
Following judgment in the VID 1020 of 2008 proceeding, the Commonwealth apparently became aware of the judgment of the Full Court in Von Reisner v Commonwealth of Australia (2009) 177 FCR 531, which highlighted the correct procedure for seeking orders under O 21 r 1, namely by application in separate proceedings.
As a result, the Commonwealth filed the present application on 15 May 2011. The application seeks an order pursuant to O 21…
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- Case
- [2011] FCA 768
- Decision Date
CaseChat Overview and Summary
The Court concluded that the respondents' absence did not warrant dismissal of the application, as they had notice of the application and had not been prejudiced. The Court also found that the respondents had a history of vexatious litigation, having repeatedly litigated the same matters without reasonable grounds. The Court emphasized that it would be a travesty of justice to accept the respondents' objection to the formal non-compliance with the Federal Court Rules regarding service of the application. The Court also rejected the respondents' argument that the application should not proceed until their most recent High Court application was determined, stating that the High Court had already considered and dismissed the same matters.
The Court made orders prohibiting the respondents from instituting any proceeding in the Federal Court without leave, treating certain affidavits and submissions as filed in the current application, and requiring the respondents to pay the applicant's costs, excluding those related to the drawing and filing of the notice of motion itself.
Orders
Orders of the court
1. The respondents may not institute any proceeding in the Federal Court of Australia without leave of the Court.
2. The affidavits and submissions filed on behalf of the parties in VID 1020 of 2008, in support of, and in opposition to the notice of motion filed on behalf of the second respondent in that proceeding on 23 June 2009 be treated as filed in this application.
3. The respondents pay the costs of the applicant including costs incurred by the applicant in relation to the preparation of affidavits and submissions filed on its behalf and appearances made in relation to its application, but not in relation to the drawing and filing of the notice of motion itself.
Note:
Background
Background to the litigation
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Finally, the respondents pointed to several orders made in other proceedings which they said demonstrated that their applications have not been uniformly unsuccessful. They provided just two examples of success in all the proceedings which have been referred to. One instance was on 3 October 1997, when the Full Court made orders in their favour in VG 192 of 1997, and the other was on 13 April 1999, when the Full Court made orders in their favour in VG 593 of 1998 and VG 594 of 1998. Both of these proceedings were interlocutory appeals. CONSIDERATION It would be a travesty of justice if the Court were to accept the respondents’ objection to the formal non-compliance with the Federal Court Rules in relation to service of the application. The respondents accepted that they had notice of the application. Not only did they receive notice of the application by mail, but they received notice of the substance of the application from service of the notice of motion filed on 23 June 2009 in VID 1020 of 2008. They also filed lengthy written submissions in relation to that motion. There can be no question of any surprise to the respondents in respect of the present application. Furthermore, the respondents filed an affidavit sworn by the second respondent on 14 June 2011 in this proceeding, seeking to raise further facts upon which to base their defence to the application. In that sense, the respondents waived their right to complain of any issue of non-compliance arising from the failure to personally serve them with the application. The respondents’ argument that it would be wrong for the Court to proceed with this application prior to the determination of their most recent High Court application is not accepted. The High Court has already considered the substance of the matters which the respondents wish to raise, and has dismissed that application. It is unlikely that further consideration of the same matters will have a different outcome. In relation to the respondents’ submission that they have not been entirely unsuccessful in previous proceedings, neither of the proceedings to which they referred demonstrates any real history of success in their litigation. On the contrary, the history set out in the reasons for judgment in VID 1020 of 2008, and summarised in these reasons, demonstrates that the respondents have repeatedly litigated essentially the same matters, and have habitually, persistently and without reasonable grounds, instituted vexatious proceedings in this Court, the Federal Magistrates Court and in the High Court. For these reasons, the Court will make the orders sought by the Commonwealth.