Crown Solicitor v Bird

Case [2019] QSC 147

SUPREME COURT OF QUEENSLAND

CITATION:

Crown Solicitor v Bird [2019] QSC 147

PARTIES:

CROWN SOLICITOR

(Applicant)

v
GEOFFREY JAMES BIRD

(Respondent)

FILE NO/S:

BS No 4585 of 2018

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

12 June 2019

DELIVERED AT:

Brisbane

HEARING DATE:

12 December 2018

JUDGE:

Brown J

ORDER:

1. It is declared that, pursuant to s 10(1)(a) of the Vexatious Proceedings Act 2005 (Qld) (the 2005 Act), the respondent was prohibited from commencing the originating application filed 1 May 2018 (BS4585/18), pursuant to s 7 of the 2005 Act, seeking to set aside the vexatious proceedings order made against him on 27 February 2004 (Originating Application), without leave of the Court under s 13(3) of the 2005 Act.

2. It is declared that, unless leave is granted in respect of the Originating Application, the proceeding is stayed pursuant to s 10(2) of the 2005 Act; and

3.   No order as to costs.

CATCHWORDS:

PROCEDURE – MISCELLANEOUS PROCEDURAL MATTERS – VEXATIOUS LITIGANTS AND PROCEEDINGS – where the respondent has been declared a vexatious litigant under the Vexatious Litigants Act 1981 (Qld) – where order continues in force under the Vexatious Proceedings Act 2005 (Qld) – where in March 2018 the respondent filed an originating application for leave to bring an application pursuant to s 7 of the 2005 Act – where the Court determined in March 2018 that the respondent did not require leave to serve the application pursuant to s 7 on the Crown Solicitor – where the respondent then served the application pursuant to s 7 and a supporting affidavit on the Crown Solicitor – where the Crown Solicitor then applied to state a case for consideration by the Court of Appeal as to whether a person subject to a vexatious proceedings order requires leave to bring an application pursuant to s 7 –where the Court then refused the application by the Crown Solicitor and determined that the more appropriate course was for the Crown Solicitor to apply for a declaration that such leave is necessary under r 16 of the Uniform Civil Procedure Rules 1999 (Qld) – where the Crown Solicitor now applies for a declaration that the respondent was prohibited from commencing the originating application to set aside the vexatious proceedings order against him pursuant to s 7 by s 10 of the 2005 Act – whether an application under s 7 to vary or set aside a vexatious proceedings order is a “proceeding” for which the person the subject of the order requires leave to institute

Acts Interpretation Act 1954 (Qld), s 14A, s 32A

Supreme Court Act1986 (Vic), s 21

Vexatious Litigants Act 1981 (Qld) s 2, s 5

Vexatious Proceedings Act 2005 (Qld), s 4, s 5, s 6, s 7, s 8, s 10, s 11, s 12, s 13, s 16

Vexatious Proceedings Act2008 (NSW), s 8, s 9

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Crown Solicitor v Bird [2019] QSC 147
Case
[2019] QSC 147
Decision Date

CaseChat Overview and Summary

In Crown Solicitor v Bird, the respondent, Mr Bird, sought to set aside an order declaring him a vexatious litigant. The central legal issue was whether Mr Bird needed to obtain leave from the Court before he could apply to set aside the vexatious litigant order. The Court had previously determined that Mr Bird did not require leave to serve the application on the Crown Solicitor. However, the Crown Solicitor argued that leave was required to institute the application to set aside the order and sought a declaration to that effect. The Court needed to decide whether an application under section 7 of the Vexatious Proceedings Act 2005 (Qld) to vary or set aside a vexatious proceedings order constituted a "proceeding" for which leave was necessary, as per section 10 of the Act.

The Court examined the definitions of "proceeding" and "institute" in the 2005 Act and found that the broad definitions applied to an application under section 7. The Court concluded that the literal construction of the definitions suggested that leave was required to institute such proceedings. This interpretation aligned with the Act's purpose to prevent vexatious litigation and conserve public resources. The Court also noted the similarity between the Queensland legislation and the Supreme Court Act 1986 (Vic), where leave was not required to set aside a vexatious proceedings order. However, the Court found that the Queensland legislation, with its broader definitions and specific exclusions, indicated a legislative intent that leave was necessary. Consequently, the Court declared that Mr Bird was prohibited from commencing the application without leave and that the proceeding would be stayed unless leave was granted.

Orders

Orders of the court

1. It is declared that, pursuant to s 10(1)(a) of the Vexatious Proceedings Act 2005 (Qld) (the 2005 Act), the respondent was prohibited from commencing the originating application filed 1 May 2018 (BS4585/18), pursuant to s 7 of the 2005 Act, seeking to set aside the vexatious proceedings order made against him on 27 February 2004 (Originating Application), without leave of the Court under s 13(3) of the 2005 Act.

2. It is declared that, unless leave is granted in respect of the Originating Application, the proceeding is stayed pursuant to s 10(2) of the 2005 Act; and

3. No order as to costs.

Background

Background to the litigation

Mr Bird was declared a vexatious litigant by this Court on 27 February 2004.[1] He seeks to have the order declaring him a vexatious litigant rescinded. The question for this Court is whether he needs to seek leave before he is able to apply for the decision to be rescinded or whether he can make such an application without such leave. In the event that leave is required, he seeks a determination of that question.[2] The history of how this matter has come before the Court today is of some relevance and I set out a summary below. [1] Lohe v Bird [2004] QSC 23. The declaration was made pursuant to s 3 of the Vexatious Litigants Act 1981 (Qld). The order continues in force under the Vexatious Proceedings Act 2005 (Qld), s 16.[2] See Re Application by Geoffrey James Bird [2019] QSC 148.Background In January 2018, Mr Bird made an application pursuant to s 7 of the Vexatious Proceedings Act 2005 (Qld) (“the 2005 Act”) to set aside the vexatious proceedings order against him. On 6 March 2018, Mr Bird filed an originating application for leave to bring an application under s 7 to set aside the vexatious proceedings order. On 15 March 2018, the Court determined that Mr Bird did not require leave to serve the application on the Crown Solicitor.[3] [3] Reasons of Burns J, 15 March 2018. Following Mr Bird serving an originating application to set aside the vexatious proceedings order and supporting affidavit on the Crown Solicitor, the Crown Solicitor applied to state a case for consideration by the Court of Appeal as to whether a person subject to a vexatious proceedings order requires leave to apply for the variation or setting aside of the order under s 7 of the 2005 Act. On 29 May 2018, this Court made an order that the Crown Solicitor prepare and file an application to the Court to state a case for the opinion of the Court of Appeal under r 483(2) of the Uniform Civil Procedure Rules 1999 (Qld) (“the UCPR”), with respect to the aforementioned question. Following the hearing of that application, this Court refused the application on 18 September 2018. The Court determined that if the Crown Solicitor wished to argue leave is necessary, the more appropriate course was for the Crown Solicitor to apply for a declaration to that effect in the proceeding pursuant to r 16 of the UCPR, on the basis that leave was required before the commencement of the proceeding.[4] The Crown Solicitor now applies for a declaration that: “…pursuant to s 10(1)(a) of the Vexatious Proceedings Act 2005 (Qld) (the 2005 Act), the applicant was prohibited from commencing the originating application filed 1 May 2018 (BS4585/18), pursuant to s 7 of the 2005 Act, seeking to set aside the vexatious proceedings order made against him on 27 February 2004 (Originating Application), without the leave of the Court under s 13(3) of the 2005 Act…”[4] Reasons of Boddice J, 18 September 2018. Mr Bird submits that he did not consider that he could make an application without leave and does not contend that the Crown is wrong in their construction of s 7 of the 2005 Act, under which leave is required to make an application to rescind an order declaring somebody to be a vexatious litigant. However, the Court having made an order that leave was not required, he contends that order should remain unless overturned by appeal. Legislation

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Like the Queensland Court of Appeal, the New South Wales Court of Appeal has otherwise considered that the breadth of the definitions of “proceeding” and “institute” permits the inference that there has been a conscious attempt by the legislature to be comprehensive as to the proceedings for which leave is required.[65][65] See Potier v State of New South Wales [2014] NSWCA 359 at [19], per Leeming JA, referring to Patsalis v State of New South Wales [2012] NSWCA 307, per Basten JA. The decisions refer to ss 4 and 5 of the Vexatious Proceedings Act 2008 (NSW), which define “proceedings” and “institute” in substantively the same terms as Queensland’s 2005 Act.Conclusion I have considered all of the arguments both for and against each construction identified by the Crown Solicitor. I consider the proper construction is that the definitions of “proceeding” and “institute” apply to an application under s 7 and leave is required under s 13 of the 2005 Act, for the following reasons. First, the definition of “proceeding” in the 2005 Act is a comprehensive one which would on its literal construction apply to an application under s 7 of the 2005 Act, such that s 10 would prohibit instituting such proceedings without first obtaining leave. The literal construction is consistent with the remedial purpose of the legislation[66] and consistent with providing access to the Courts through legal proceedings if the application is such that the Court is satisfied leave should be granted. [66] Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 321, per Mason and Wilson JJ; Witheyman v Simpson [2011] 1 Qd R 170 at 188 [42], per Muir JA, referring to Saraswati v The Queen (1991) 172 CLR 1 at 21. Secondly, while the purpose of the legislation has not been explicitly said to be the removal of a right to seek a variation or the setting aside of the order without first seeking leave, the clear words of the provision together with the broad definitions of “institute” and “proceeding” manifest such an intention, which is consistent with the overall purpose of the legislation to prevent the pursuit of vexatious proceedings which cause wastage of public resources and the harassment and annoyance of defendants in litigation that lacks a reasonable basis. An application to set aside or vary a vexatious proceedings order without a leave requirement would at least require the Crown Solicitor to respond to the application and potentially other relevant persons identified in s 5(1) of the Act. Thirdly, the expanded breadth of the definition of “proceeding” in the 2005 Act compared with the Vexatious Litigants Act 1981 (Qld), while maintaining a provision for an application to be made by, inter alia, a person the subject of a vexatious proceedings order to vary or revoke that order but not removing it from the leave requirement, strongly suggests a legislative intention that an application under s 7 is not excluded from “proceeding” and s 10 of the 2005 Act.

Ratio Decidendi

Legal Principle Established

Fifthly, sections 7 and 10 of the 2005 Act bear some similarity to s 21(3) of the Supreme Court Act1986 (Vic), under which a vexatious proceedings order may require the vexatious litigant to obtain leave to commence “legal proceedings”, and s 21(5) of that Act, under which a Court may vary, set aside or revoke such an order. In the context of that legislation, the approach of the Victorian Supreme Court appears to have been that leave was not required for a vexatious litigant to seek to have that declaration set aside.[33] [33] See for example: Kay v Attorney-General of Victoria & Anor [2009] VSC 71 at [5]-[6], per Smith J; Attorney-General v Kay [2005] VSC 426 at [5], per Hansen J. Consideration Only one decision of this Court has touched upon the matter in question, other than the reference in Hambleton referred to above. In the case of Re Skyring,[34] Mullins J considered an originating application which sought to set aside an order declaring that Mr Skyring was a vexatious litigant. Mr Skyring had sought, in the alternative to that application, leave to issue proceedings. While her Honour considered it was arguable that a person subject to a vexatious proceedings order is not required to bring an application for leave to make an application under s 7 of the 2005 Act in respect of that order,[35] her Honour did not need to decide the matter. Her Honour found that when properly characterised, the application in that case was not an application to vary, set aside or revoke the vexatious proceedings order. [34] [2013] QSC 197.[35] At [9], referring to Conde v Gilfoyle [2010] QCA 109 at [25]. Fraser JA (with whom McMurdo P and Peter Lyons J agreed) delivered the reasons of the Court in Conde v Gilfoyle & Anor.[36] In that case, the Court of Appeal determined that leave was not required before an appeal could be instituted from orders made under s 6(2)(b) of the 2005 Act. The issue in that case was different from the present. It dealt with an appeal from, amongst other orders, orders under s 6(2)(a) of the 2005 Act which stayed six different proceedings and orders under s 6(2)(b) of the 2005 Act which prohibited the appellant from instituting any proceeding without the prior leave of the Court.[37] One of the issues that the Court of Appeal had to consider was whether the appeal was incompetent because Mr Conde had not sought leave from a Judge of the Supreme Court prior to instituting the appeal. In that case it was contended that the breadth of the definitions of “proceeding” and “institute, in relation to proceedings” included an appeal against a section 6(2)(b) order and therefore leave was required under s 13, with the appeal proceedings otherwise permanently stayed.[38] [36] [2010] QCA 109.[37] At [5].[38] At [19] Fraser JA considered s 32A of the Acts Interpretation Act 1954 (Qld), noting that it evinces an intention for a more flexible approach to be taken in the application of a statutory definition when interpreting Queensland legislation than would be required under some other interpretation provisions.[39] His Honour therefore considered whether the context and subject matter of ss 6(2) and 10 indicate or require that the definition of the term “proceeding” does not apply to those provisions so as to prohibit an appeal from an order under s 6(2)(b) of the 2005 Act.[39] At [20].