Conomy v Maden

[2019] HCATrans 49

[2019] HCATrans 049

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P3 of 2019
  No P11 of 2019

B e t w e e n -

JERROD JAMES CONOMY

Applicant

and

CHRISTOPHER MADEN

Respondent

KEANE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 20 MARCH 2019, AT 9.47 AM

Copyright in the High Court of Australia

KEANE J:   These applications for special leave to appeal were heard on 6 March 2019 by Justice Edelman and me. The applicant was also given an opportunity in writing and at the hearing on 6 March to make submissions on the question whether a vexatious proceedings order, under s 77RN(2) of the Judiciary Act1903 (Cth), should be made against him.

For the reasons that I now publish, Justice Edelman and I would dismiss the applications for special leave to appeal and make the vexatious proceedings order. 

In each matter the orders are:

1.The applications for special leave to appeal be dismissed.

2.The summons filed on 22 February 2019 be dismissed.

3.The summons filed on 27 February 2019 be dismissed.

4.The applicant be prohibited from instituted any further proceedings in this Court relating to the convictions the subject of Conomy v Maden [2016] WASCA 30 and Conomy v Maden [2016] WASCA 31.

I publish those orders.

Justice Edelman and I direct that the reasons as published be incorporated into the transcript.

On 11 January 2019 and 31 January 2019, Mr Jerrod James Conomy filed two applications for special leave to appeal to this Court from the decision of the Court of Appeal of the Supreme Court of Western Australia in Conomy v Maden [2016] WASCA 30. That decision was delivered on 18 February 2016.

On 13 February 2019, the Deputy Registrar wrote to Mr Conomy, informing him that his applications for special leave to appeal had been listed for hearing before a Full Court on 6 March 2019. In that letter, the Deputy Registrar also informed Mr Conomy that, given the history of applications by him, a vexatious proceedings order under s 77RN(2) of the Judiciary Act 1903 (Cth) might be made against him following the hearing of his applications. Mr Conomy was directed to file any written submissions upon which he might wish to rely on in this regard by 4.00 pm on 1 March 2019.

On 22 February 2019, after the applications for special leave had been listed for hearing on 6 March 2019, Mr Conomy filed in each application a summons seeking leave to amend the application.  He sought an immediate determination in respect of each summons.  He was informed by the Deputy Registrar that each summons would be heard on 6 March 2019.

On 27 February 2019, Mr Conomy filed a further summons in each application seeking an extension of time in which to file written submissions in respect of the foreshadowed vexatious proceeding order, and requesting information in relation to the provision of documents by the Court for his assistance.  Mr Conomy was informed by the Deputy Registrar that each summons would be heard with his applications for special leave and other summonses on 6 March 2019.

At the hearing on 6 March 2019, Mr Conomy sought an adjournment to enable him to file written submissions.  Given the opportunity already afforded him to do so, and his failure to identify any circumstance which would justify an adjournment, the application for an adjournment was refused.  Mr Conomy was then invited to make oral submissions in support of his position, but declined that opportunity on the basis that he had not been able to prepare his case.

In order to understand the two applications for special leave before the Court, and the considerations which bear upon whether, if those applications are dismissed, a vexatious proceedings order should also be made against Mr Conomy, it is necessary to recount the history of Mr Conomy's proceedings in this Court.

Background

In 2014 and 2015, Mr Conomy was convicted of two offences in the Magistrates Court of Western Australia.  The first was for stalking (“the stalking conviction”), and the second was for breaching a Violence Restraining Order (“VRO”) (“the breach of a VRO conviction”).  All of Mr Conomy’s subsequent proceedings in this Court relate to those two convictions.  It is convenient to deal separately with the proceedings relating to each conviction.

The stalking conviction

By a prosecution notice lodged in the Magistrates Court on 15 August 2013, Mr Conomy was charged that in the period 23 December 2012 to 12 August 2013 he pursued the complainant in a manner that could reasonably have been expected to intimidate and that did, in fact, intimidate her, contrary to s 338E(2) of the Criminal Code 1913 (WA)[1].  The presiding Magistrate delivered his decision on 7 August 2014.  His Honour found Mr Conomy guilty of the charge and imposed a fine of $3,000[2].

[1]Conomy v Maden [2015] WASC 179 at [1].

[2]Conomy v Maden [2015] WASC 179 at [2].

Mr Conomy appealed and applied to the Supreme Court of Western Australia for leave to appeal against the conviction and the sentence imposed[3].  Martino J refused leave to appeal on all grounds, and accordingly the appeal was taken to have been dismissed[4]:  see Conomy v Maden [2015] WASC 179.

[3]Criminal Appeals Act 2004 (WA) s 9(1).

[4]Criminal Appeals Act 2004 (WA) s 9(3).

Mr Conomy then appealed and applied to the Court of Appeal of the Supreme Court of Western Australia for leave to appeal against the decision of Martino J.  The Court (Buss and Mazza JJA and Mitchell J) refused leave to appeal on all grounds, and dismissed the appeal, on 18 February 2016:  see Conomy v Maden [2016] WASCA 30.

Mr Conomy applied for special leave to appeal to this Court on 29 April 2016:  see P19/2016.  The application was subsequently deemed abandoned.  Mr Conomy then applied for reinstatement of the application, which was granted by Gordon J on 29 July 2016.  Subsequently, Bell and Gageler JJ dismissed the application on 12 October 2016:  see Jerrod James Conomy v Christopher Maden [2016] HCASL 242.

Since then, Mr Conomy has filed, or attempted to file, 12 further applications in this Court relating to the stalking conviction:

(a)Three applications were not accepted for filing: see P-NAF 10/2017; P‑NAF 7/2018; P‑NAF 11/2018. In each case a Justice of this Court made a direction pursuant to r 6.0.7.2 of the High Court Rules 2004 (Cth) (“the Rules”) that the summons and affidavit not be filed without the leave of a Justice of the Court.

(b)Three applications were applications for leave to issue or file documents in the proceeding concerning the original special leave application, namely P19/2016.  In each case a Justice of this Court refused leave:  see P23/2016; P67/2017; P48/2018.  As to these proceedings:

(i)Proceeding P23/2016 was an application for leave to issue or file summons for directions in P19/2016, which was the original special leave application. In the summons, Mr Conomy sought various directions and dispensations from the Rules. Nettle J refused the application on 3 June 2016. As noted above, Bell and Gageler JJ ultimately dismissed the special leave application in P19/2016 on 12 October 2016.

(ii)Proceeding P67/2017 was an application for leave to issue or file a summons and affidavit in P19/2016.  In the summons Mr Conomy sought an order that P19/2016 be reinstated for it to be ordered, among other things, that the order made by Bell and Gageler JJ dismissing the special leave application be set aside.  Gordon J, in dismissing the application, noted that “[t]o the extent that this application is an application for redetermination of an application for leave to issue a summons already rejected by Nettle J [in P23/2016], it is incompetent and an abuse of process”.  Her Honour further noted that “[t]o the extent that this application seeks to reopen the application for special leave to appeal determined by Bell and Gageler JJ on 12 October 2016, it is incompetent and an abuse of process”.

(iii)Proceeding P48/2018 was an application for leave to issue or file a summons and affidavit in P19/2016 with a view to advancing an attempt to re‑agitate the issues resolved by the dismissal of the special leave application.  Keane J, in dismissing the application, noted that insofar as the application sought to advance Mr Conomy’s attempt to re‑agitate the matters determined by the decision of the Court in P19/2016 – the original special leave application which had been dismissed – Mr Conomy was engaged in “an exercise in futility”.

(c)One application was an application for leave to issue or file documents in P23/2016, which was itself an application for leave to issue or file documents in P19/2016, which was the original special leave application.  The application was dismissed by Edelman J:  see P33/2018.  His Honour noted that the application was in substance identical to the application filed in P34/2018 (see below), and dismissed the application for the same reasons.

(d)Three applications were for leave to appeal from decisions of single Justices dismissing applications for leave to issue or file:  see P20/2018; P52/2018; P56/2018.  Each of these applications was dismissed by two Justices of this Court.  In relation to these applications:

(i)Proceeding P20/2018 was an application for leave to appeal from the decision of Gordon J refusing leave to issue or file in P67/2017.  The application was dismissed by Kiefel CJ and Gageler J:  see In the matter of an application by Jerrod James Conomy for leave to appeal [2018] HCASL 241.

(ii)Proceeding P52/2018 was an application for leave to appeal from the decision of Edelman J refusing leave to issue or file in P33/2018.  The application was dismissed by Bell and Gageler JJ:  see In the matter of an application by Jerrod James Conomy for leave to appeal [2018] HCASL 395.

(iii)Proceeding P56/2018 was an application for leave to appeal from the decision of Keane J refusing leave to issue or file in P48/2018.  The application was dismissed by Nettle and Gordon JJ:  see In the matter of an application by Jerrod James Conomy for leave to appeal [2019] HCASL 9.

(e)The final two applications are the two applications presently before the Court:  see P3/2019; P11/2019.  Each is an application for special leave to appeal from the decision of the Court of Appeal, delivered on 18 February 2016, refusing leave to appeal and dismissing Mr Conomy’s appeal from the decision of the Supreme Court refusing leave to appeal against his stalking conviction:  see Conomy v Maden [2016] WASCA 30.

Breach of a Violence Restraining Order conviction

By a prosecution notice lodged in the Magistrates Court on 14 August 2013, Mr Conomy was charged that on 13 August 2013 he, having been personally served with a VRO, breached that order by sending text messages to the complainant, contrary to s 61(1) of the Restraining Orders Act 1997 (WA)[5].  On 16 January 2015, after a trial, Mr Conomy was convicted.  A fine of $1,200 was imposed[6].

[5]Conomy v Maden [2015] WASC 178 at [4].

[6]Conomy v Maden [2015] WASC 178 at [1].

Mr Conomy appealed and applied to the Supreme Court for leave to appeal against his conviction and the sentence imposed.  Martino J refused leave to appeal on all grounds, and accordingly the appeal was taken to have been dismissed:  see Conomy v Maden [2015] WASC 178.

Mr Conomy then appealed and applied to the Court of Appeal for leave to appeal against the decision of Martino J.  The Court (Buss and Mazza JJA and Mitchell J) refused leave to appeal on all grounds, and dismissed the appeal, on 18 February 2016:  see Conomy v Maden [2016] WASCA 31.

Mr Conomy then applied for special leave to appeal to this Court on 10 May 2015:  see P20/2016.  The application was deemed abandoned on 7 June 2016.  Mr Conomy then applied for reinstatement of the application, which was refused by Gordon J on 19 April 2017.  Mr Conomy again applied for reinstatement, which was refused by Nettle J on 17 May 2017.

On 17 May 2017, Nettle J also made a “global” direction pursuant to r 6.0.7.2 of the Rules directing the Registrar to refuse to issue or file any further document tendered by Mr Conomy for issue or filing in the proceeding without the leave of a Justice first had and obtained by him. Mr Conomy sought to avoid this restriction, either by seeking to file documents in the proceedings relating to his stalking conviction, or by filing his documents in later proceedings relating to his breach of a VRO conviction.

Mr Conomy has filed, or attempted to file, 10 further applications in this Court relating to his breach of a VRO conviction:

(a)One application was not accepted for filing: see P‑NAF 8/2018. A Justice of this Court made a direction pursuant to r 6.0.7.2 of the Rules that the summons and affidavit not be filed without the leave of a Justice of the Court.

(b)Five applications were applications for leave to issue or file.  Each was refused by a Justice of this Court:  see P24/2016; P24/2017; P54/2017; P21/2018; P34/2018.  As to those proceedings:

(i)Proceeding P24/2016 was an application for leave to issue or file a summons for directions in P20/2016, which was the original special leave application. In the summons, Mr Conomy sought various directions and dispensations from the Rules. Nettle J refused the application on 3 June 2016.

(ii)Proceeding P24/2017 was an application for leave to issue or file a summons and affidavit seeking the reinstatement of the application for special leave to appeal.  Keane J held that the application for special leave was bound to fail, and refused the application for leave.

(iii)Proceeding P54/2017 was an application for leave to issue or file documents including a summons seeking orders setting aside a previous order and reinstating Mr Conomy’s proposed amended application for special leave.  In refusing the application, Bell J noted that, against the background of Mr Conomy’s earlier proceedings, and in particular the previous refusal of leave to reinstate the application for special leave, the filing of the documents would constitute an abuse of the process of the Court.

(iv)Proceeding P21/2018 was an application for leave to issue or file a summons and affidavit in P20/2016.  Nettle J held that there was nothing to be achieved by enabling the application for special leave to advance to the Full Court, and refused the application for leave.

(v)Proceeding P34/2018 was an application for leave to issue or file a summons and affidavit in P24/2016, which was itself an application for leave to issue or file a summons in P20/2016, which was the original special leave application.  In refusing the application, Edelman J noted that the whole of the applications sought to be agitated in the proposed summons were frivolous and vexatious.

(c)Three applications were applications for leave to appeal from decisions of single Justices dismissing applications for leave to issue or file:  see P63/2017; P35/2018; P53/2018.  Each application was dismissed by two Justices of this Court.  As to these applications:

(i)Proceeding P63/2017 was an application for leave to appeal from the decision of Bell J refusing leave to issue or file in P54/2017.  The application was dismissed by Kiefel CJ and Gageler J:  see Re Conomy [2018] HCASL 74.

(ii)Proceeding P35/2018 was an application for leave to appeal from the decision of Nettle J refusing leave to issue or file in P21/2018.  The application was dismissed by Keane and Edelman JJ:  see In the matter of an application by Jerrod James Conomy for leave to appeal [2018] HCASL 306.

(iii)Proceeding P53/2018 was an application for leave to appeal from the decision of Edelman J refusing leave to issue or file in P34/2018.  The application was dismissed by Bell and Gageler JJ:  see In the matter of an application by Jerrod James Conomy for leave to appeal [2018] HCASL 395.

(d)One application was an application for leave to appeal from Nettle J’s “global” direction in proceeding P20/2016:  see P41/2018.  The application was dismissed by Bell and Gageler JJ:  see In the matter of an application by Jerrod James Conomy for leave to appeal [2018] HCASL 316.

The current applications for special leave to appeal

The applications in proceedings P3/2019 and P11/2019 seek to re‑agitate Mr Conomy’s challenge to the decision of the Court of Appeal in Conomy v Maden [2016] WASCA 30, which challenge was dismissed on 12 October 2016. Mr Conomy now seeks to rake over again the merits of that decision by agitating arguments that either were, or reasonably could and should have been, advanced and dealt with in the Court of Appeal or his first application for special leave to appeal. Further, nothing in the reasons for the Court of Appeal’s decision or the first application for special leave gives any reason to doubt its correctness.

The amendments which Mr Conomy seeks by each summons filed on 22 February 2019 do not alter the circumstance that Mr Conomy seeks to challenge the correctness of the decision of the Court of Appeal on grounds that were either raised by him, or could and should have been raised by him, before that Court or in his first application for special leave to appeal.  Each summons is part of the overall exercise in futility in which Mr Conomy is engaged.  Each summons should be dismissed.

In none of the proceedings instituted by Mr Conomy since the decision of Bell and Gageler JJ on 12 October 2016 to refuse his application for special leave to appeal has any ground been advanced by Mr Conomy that would justify a reconsideration of whether special leave should be granted.  Yet, for reasons that are apparent only to Mr Conomy, he persists in his refusal to take “no” for an answer.

Mr Conomy’s persistence in refusing to accept that the litigation relating to this matter has been concluded since 12 October 2016 is clearly vexatious.  For that reason, his applications in P3/2019 and P11/2019 must be dismissed.

Section 77RN

Section 77RN of the Judiciary Act empowers this Court to make an order dismissing proceedings in this Court instituted by a person if the Court is satisfied that the person has frequently instituted or conducted vexatious proceedings in Australian courts. If so satisfied, this Court may also make an order prohibiting the person from instituting proceedings in this Court. By s 77RN(3), this Court may make such orders of its own motion.

Although Mr Conomy does not seek to raise issues relating to the breach of a VRO conviction in the applications presently before the Court, his proceedings in this Court relating to that conviction are relevant to the question whether the Court should make a vexatious proceedings order against him.  The comments made above are equally applicable to the many proceedings he has commenced relating to that conviction since the decision of Gordon J to refuse reinstatement on 19 April 2017.  In none of those proceedings has any ground been advanced by Mr Conomy that would justify the special leave application being reinstated and considered by the Full Court.  Mr Conomy’s persistent refusal to accept that his application for special leave has been abandoned is a further example of his conduct of vexatious proceedings.

The history of proceedings by Mr Conomy establishes that he is a person who has frequently instituted and conducted vexatious proceedings in this Court. The present applications for special leave to appeal are themselves the latest examples of vexatious proceedings. The Court’s discretion to make an order under s 77RN(2) has clearly been enlivened.

The present case is not the occasion to enter upon an exploration of the considerations material to the exercise of the Court’s discretion to make an order under s 77RN of the Judiciary Act; this is a clear case for the exercise of the discretion. It may be said, however, that in exercising the discretion to make an order under s 77RN(2) it must be borne in mind that the effect of such an order is to limit a person’s right of recourse to the Court. That is not something to be ordered without good reason. Here the limit on Mr Conomy’s recourse to the Court will be no more extensive than is necessary to preserve this Court from pointless demands on its time and resources and also to ensure that the other party to litigation concluded long ago is not subjected to the oppression of being confronted again by Mr Conomy’s unreasonable and persistent sense of grievance.

The history of Mr Conomy’s proceedings demonstrates his determination to persist in the pursuit of what is evidently an unfortunate obsession that serves no purpose other than to waste the Court’s time and resources in order to indulge his unreasonable sense of grievance. It is apparent that Mr Conomy’s unreasonable obsession is such that, absent an order under s 77RN(2), his behaviour will continue. There can, therefore, be no doubt that this is an appropriate case in which to exercise the powers conferred by s 77RN(2) and (3) of the Judiciary Act.

As to each summons filed on 27 February 2019, there is no reason to think that the difficulties which confront Mr Conomy in resisting the making of an order under s 77RN(2) of the Judiciary Act would be cured by the grant of an extension of time to make written submissions in that regard.  Mr Conomy did not identify any reasonable basis for his failure to take up the opportunity to provide written submissions afforded by the direction communicated to him by the Deputy Registrar on 13 February 2019.  Further, all of the proceedings brought by Mr Conomy related only to his stalking conviction and the breach of a VRO conviction.  His proceedings are well known to him, and the decisions in respect of his proceedings had been provided to, and were otherwise easily accessible by, him.  Mr Conomy did not identify any specific improvement in his ability to present his case that he might achieve with the benefit of an adjournment that could not already have been achieved by preparation of written submissions. 

Insofar as Mr Conomy sought particulars of the circumstances upon which an order under s 77RN(2) might be made, there is no reason to think that Mr Conomy does not appreciate that his proceedings since 12 October 2016 in relation to the stalking conviction, and his proceedings since 19 April 2017 in relation to the breach of a VRO conviction, constitute the basis on which such an order might be made. Indeed, in a letter from the Deputy Registrar in response to each summons filed on 27 February 2019, Mr Conomy was advised that he would have an opportunity on 6 March 2019 to make submissions on whether the Court should make vexatious proceeding orders in respect of his two pending applications for special leave and related proceedings. Finally, insofar as Mr Conomy, by each summons, sought the Court’s assistance in relation to research, Mr Conomy’s request is of a piece with his exorbitant demands on the time and resources of the Court. It should not be entertained.

Conclusion

Accordingly, we dismiss each of the applications for special leave to appeal in P3/2019 and P11/2019.

In addition, we order that Mr Conomy is prohibited from instituting any further proceedings in this Court relating to the convictions the subject of Conomy v Maden [2016] WASCA 30 and Conomy v Maden [2016] WASCA 31.

As to each summons filed on 22 February 2019, the amendments proposed to the applications for special leave do not remedy the vexatious quality of Mr Conomy’s proceedings.  Indeed, they are of a piece with his vexatiousness.  The same may be said of each summons filed on 27 February 2019.  Accordingly, each summons should be dismissed.

The Court will now adjourn to 10.00 am.

AT 9.48 AM THE MATTERS WERE CONCLUDED