David James Lindsay – Application under the Vexatious Proceedings Act 2014 (Vic)
[2015] VSC 129
•9 April 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2014 6632
IN THE MATTER of an application by David James Lindsay under section 54 of the Vexatious Proceedings Act 2014 (Vic).
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JUDGE: | J FORREST J |
DATE OF RULING: | 9 April 2015 |
CASE MAY BE CITED AS: | David James Lindsay – Application under the Vexatious Proceedings Act 2014 (Vic) |
MEDIUM NEUTRAL CITATION: | [2015] VSC 129 |
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PRACTICE AND PROCEDURE – Vexatious litigant – General litigation restraint order – Application for leave to commence legal proceedings – Vexatious Proceedings Act 2014 (Vic) – Whether proposed proceeding is a vexatious proceeding – Whether there are reasonable grounds for the proposed proceeding – Whether proposed proceeding is an abuse of process.
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APPEARANCES: | Counsel | Solicitors |
| No appearances – application dealt with on the papers | ||
HIS HONOUR:
Introduction
David James Lindsay, AKA Sjostrom Clemens-Lindsay, is a vexatious litigant with a long history of bringing claims in this Court.
During the 1980s and in 1992 Mr Lindsay sustained injuries to his leg and back in the course of his employment with Carlton and United Breweries (CUB). Over the past 25 years he has received payments of compensation under the Accident Compensation Act 1985 (Vic). He now wants to issue a common law proceeding in the County Court against his employer.
To bring such a claim, given his status as a vexatious litigant, Mr Lindsay must obtain the leave of this Court. The central issue is not that he may at some point in time have possessed a viable substantive claim. Rather, it is whether the Court can be satisfied that Mr Lindsay’s claim is not vexatious and that there are reasonable grounds for the proceeding.[1] It is readily apparent that CUB may rely on a defence under the Limitation of Actions Act 1958 (Vic) and/or a jury verdict (and judgment) in a previous claim brought by Mr Lindsay against CUB.
[1]Vexatious Proceedings Act 2014, s 55.
For the following reasons I think that CUB and, if he wishes, the Attorney-General, should be given the opportunity to be heard before I grant Mr Lindsay leave to proceed.
Background to Mr Lindsay’s application
Vexatious Litigant Order
In July 1998, Mr Lindsay was declared a vexatious litigant, under s 21 of the Supreme Court Act1986 (Vic) upon the application of the Attorney-General.
Kellam J found that a number of proceedings commenced by Mr Lindsay –
… were vexatious proceedings in the sense that they disclosed no reasonable cause of action or were or are oppressive, embarrassing and an abuse of process of the Court… Each of [the proceedings] contain pleadings which were or are oppressive, embarrassing and were or are so untenable as to have no prospect of being successfully established at trial.
His Honour was satisfied that each of those proceedings had been brought without any reasonable grounds and had been instituted both ‘habitually and persistently’ within the meaning of s 21(2)(a) and (b) of the Supreme Court Act, as it then stood.
Kellam J, having declared Mr Lindsay to be a vexatious litigant under s 21(2) of the Supreme Court Act, made the following order:
[David James Lindsay] must not, without the leave of this Honourable Court, continue or commence legal proceedings in this Court or any inferior Court or Tribunal.
Subsequent to the declaration Mr Lindsay has, on several occasions, pursuant to s 21 of the Supreme Court Act, been granted leave by judges of this Court to commence proceedings.[2]
[2]See Phillip Morris Limited v Attorney-General for the State of Victoria & Anor (2006) 14 VR 538 and Attorney-General for the State of Victoria v David James Clemens (formerly Lindsay) [2008] VSC 370.
The Vexatious Proceedings Act 2014
Before October 2014, Victoria’s regime for dealing with vexatious litigants was set out in s 21 of the Supreme Court Act. It permitted the Supreme Court to declare a person to be a vexatious litigant if he or she habitually, persistently and without reasonable grounds instituted vexatious proceedings against the same or different persons.[3]
[3]Supreme Court Act 1986, s 21(2).
Section 21 of the Supreme Court Act was repealed by s 102 of the Vexatious Proceedings Act 2014 (Vic) (the Act) which, in October 2014, introduced an elaborate scheme dealing with vexatious litigants and vexatious litigation. The Act’s introduction was a direct response to the never-ending and growing queue of querulous litigants making their way to Victorian courts.
The Act provides that an order made under the former s 21(2) of the Supreme Court Act, declaring a person to be a vexatious litigant is now taken to be a ‘general litigation restraint order’.[4] A person who is subject to a ‘general litigation restraint order’ may apply for leave to commence or continue a proceeding to the Victorian Court or tribunal that would hear the proceeding to which the application relates.[5]
[4]Vexatious Proceedings Act 2014, s 91(1).
[5]Vexatious Proceedings Act 2014, s 54(2).
Although Mr Lindsay’s application relates to the institution of a proceeding in the County Court, the order of Kellam J mandates that any leave application must be brought before the Supreme Court, thus trumping s 54(2) of the Act.
An application brought under the Act must disclose a number of matters, including:[6]
[6]Vexatious Proceedings Act 2014, s 56.
(a) details of each application for leave to proceed made by the applicant;
(b) details of each application for leave to commence or continue a proceeding made by the applicant under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;
(c) details of each interlocutory application made or proceeding commenced or conducted by the applicant —
(i) that is a vexatious application or a vexatious proceeding; or
(ii) which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;
(d) an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) if any; and
(e) any other facts material to the application, whether in support of or adverse to the application, that are known to the person.
Assuming an application satisfies the requirements of s 56, then ss 51, 53 and 55 of the Act enable a court to grant leave to an applicant to proceed with their claim if satisfied of two matters: first, that the proceeding is not a ‘vexatious proceeding’ (as defined) and second, that there are ‘reasonable grounds for the proceeding.’
This threshold contrasts to s 21 of the Supreme Court Act, pursuant to which leave could be granted if it was found that the proposed proceeding was not, or would not be, an abuse of process.
Under the Act, a vexatious proceeding is defined as:[7]
[7]Vexatious Proceedings Act 2014, s 3.
(a) a proceeding that is an abuse of the process of a court or tribunal;
(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;
(c) a proceeding commenced or pursued without reasonable grounds;
(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.
As I have mentioned, provided the claim is not vexatious the applicant must also establish that there are reasonable grounds for the proceeding. This, it would seem, requires the applicant to provide sufficient material to substantiate a reasonable basis for the institution of the claim.
The proposed respondent is only notified of the leave application if the court considers that the application should be permitted to proceed.[8] In those circumstances, the Court must direct the applicant to give notice of the application to the Attorney-General and proposed respondent (among others),[9] and may give those persons an opportunity to be heard before leave is granted.[10]
[8]Vexatious Proceedings Act 2014, s 60(2).
[9]Vexatious Proceedings Act 2014, s 60(2).
[10]Vexatious Proceedings Act 2014, s 62.
This Application
On 15 December 2014, Mr Lindsay applied to the Supreme Court, seeking orders for leave to commence a proceeding in the County Court against CUB.
Mr Lindsay’s application is discursive and difficult to follow. I am prepared to accept that Mr Lindsay has done his best to satisfy the requirements of s 56. As discussed at [14], above, he must satisfy the Court that the proceeding is not vexatious and that he has reasonable grounds to proceed with the claim.
Mr Lindsay has prepared a draft statement of claim.[11] He seeks to recover ‘pecuniary loss compensation’ in relation to three separate injuries sustained by him in the course of his employment with CUB on:
(a)12 November 1984;
(b)17 July 1987; and
(c)11 November 1987.
The statement of claim contains no claim for pain and suffering and is confined to a claim for ‘pecuniary loss compensation’.
[11]Exhibit DJ11.001.
The statement of claim does not contain any particulars of negligence in relation to any of the events but that, presumably, could be cured by their provision in due course.
The application also contains details of a verdict and subsequent judgment obtained by Mr Lindsay against CUB in a jury trial in the County Court before His Honour Judge Byrne in October 1992. As best I can determine upon the material provided, including what appears to be a summary of the jury verdict, Mr Lindsay succeeded in obtaining a favourable verdict and judgment in relation to each of the accidents which are the subject of the proposed proceeding in this application (on 12 November 1984, 17 July 1987 and 11 November 1987).
Judge Byrne, on 14 October 1992, entered judgment for Mr Lindsay in the sum of $114,000 with interest in the sum of $6,000, with CUB to pay Mr Lindsay’s costs to be taxed on County Court Scale D.
It is apparent from the verdict and the judgment that the damages awarded were solely for pain and suffering and no award was made for pecuniary loss.
It also appears that Mr Lindsay has received payments of compensation under the Accident Compensation Act for many years. As I follow the material, he is still receiving weekly payments of compensation.
Analysis
For present purposes, I am prepared to accept that Mr Lindsay’s application complies with s 56 of the Act.
I am also prepared to accept that at this point in time the claim against CUB cannot, given the contents of the statement of claim, be regarded as vexatious – although it may be demonstrated to be so by material produced by CUB, or by its submissions in relation to the matters contained in the following paragraph.
In determining whether Mr Lindsay can satisfy the Court that there is a reasonable basis upon which he can proceed with the claim there are at least three issues which need to be resolved:
(a)whether he is able to maintain a claim for pecuniary loss in the light of subsequent amendments to the Accident Compensation Act;
(b)whether the jury verdict and the entry of the judgment in relation to the claim for pain and suffering arising out of the three accidents creates a res judicata (or issue estoppel) precluding Mr Lindsay from pursuing the claim;
(c)whether Mr Lindsay can arguably circumnavigate a plea by CUB based upon the Limitation of Actions Act.
None of these points are easy to determine. They cannot be resolved by simply plucking a textbook from the shelf or going to Wikipedia.
On the material provided by Mr Lindsay I can form no concluded view one way or another as to whether he should be given leave to proceed with his claim. However, there are two factors that persuade me that it is in the interests of justice to allow Mr Lindsay to justify why he should be permitted to proceed:
(a)he was successful in satisfying a jury that he had a viable claim in negligence in relation to the three accidents;
(b)he has not received an award of pecuniary loss damages although he has been paid compensation under the Accident Compensation Act over a very long period of time.
Accordingly, I think that the sensible way to proceed, consistent with the provisions of the Act, is for Mr Lindsay and the Court to give notice to CUB and the Attorney-General of the application. Both should be given the opportunity to make submissions relating to the issues I have identified (and any other issue that may stymy Mr Lindsay’s claim).
In my opinion, it would be contrary both to the interests of justice and the underlying purpose of the Act to allow the claim to proceed to issue, and inevitable trial, without the viability of the claim being determined at the outset.
Orders
I will make the following orders:
1.That CUB and the Attorney-General be given notice of this application and be provided with copies of Mr Lindsay’s affidavit, the exhibits and these reasons.
2.That Mr Lindsay’s application be listed for hearing before a judge of this Court on 20 May 2015.
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