David James Lindsay - Application under Vexatious Proceedings Act 2014 - [2015] VSC 316

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IN THE SUPREME COURT OF VICTORIA
AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

S CI 2014 6632

IN THE MATTER of an Application by DAVID JAMES LINDSAY under s 54 of the Vexatious Proceedings Act 2014

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JUDGE:	RUSH J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2015
DATE OF JUDGMENT:	3 July 2015
CASE MAY BE CITED AS:	David James Lindsay - Application under Vexatious Proceedings Act 2014
MEDIUM NEUTRAL CITATION:	[2015] VSC 316

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VEXATIOUS LITIGANT – Application for leave to commence legal proceedings – Proposed defendant given opportunity to be heard – Previous County Court proceedings – Res judicata – Issue estoppel – Abuse of process – A person may sue once for damages for injuries negligently sustained – Vexatious Proceeding Act 2014 s 3 – Papercorp Pty Ltd v Nicolaou [2006] VSCA 143 – Arthur Robinson (Grafton) Pty Ltd v Carter (1968) 122 CLR 649 – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Proposed Defendant	Mr M J Hooper	Minter Ellison

HIS HONOUR:

David James Lindsay, upon the application of the Attorney-General on 16 July 1998, by order of Kellam J was declared a vexatious litigant pursuant to s 21(2) of the Supreme Court Act 1986.

Section 102 of the Supreme Court Act was repealed by the Vexatious Proceedings Act 2014 (the ‘Act’) in October 2014. The Act provides that the previous order declaring Mr Lindsay a vexatious litigant is now to be taken, pursuant to s 91(1) of the Act, to be ‘a general litigation restraint order’ and thus Mr Lindsay is required to 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.[1] However, the order of Kellam J requires that any leave application by Mr Lindsay is to be made to the Supreme Court; thus, this application by Mr Lindsay to commence a proceeding in the County Court was heard by me in the Supreme Court.
[1]The Act s 54(2).

Section 3 of the Act defines a vexatious proceeding as –

(a)a proceeding that is an abuse of the process of the 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.

Section 56 of the Act requires an application brought under the Act to disclose –

(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 s 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2015] VSC 316
Decision Date: 3 July 2015

CaseChat Overview and Summary

The applicant, David James Lindsay, applied for leave to commence legal proceedings against Papercorp Pty Ltd, citing the Vexatious Proceedings Act 2014. The application followed previous proceedings in the County Court, where Lindsay's claims were dismissed. Papercorp opposed the application, arguing that Lindsay's claims were vexatious and res judicata, with issue estoppel and potential abuse of process. The court was required to determine if Lindsay's application should be granted under the Vexatious Proceedings Act 2014, considering the principles of res judicata, issue estoppel, and abuse of process.

The court examined whether Lindsay's application was vexatious, taking into account his previous County Court proceedings. It assessed whether the claims were barred by res judicata, issue estoppel, and whether there was an abuse of process. The court also considered if Lindsay's proposed action fell within the definition of a vexatious proceeding under the Vexatious Proceedings Act 2014. The court concluded that Lindsay's application was barred by res judicata and issue estoppel, and there was a potential for abuse of process. It found that the application was vexatious as defined by the Act.

The court refused Lindsay's application for leave to commence legal proceedings. It held that the proposed claims were vexatious and barred by res judicata and issue estoppel, and that there was a potential for abuse of process. The court cited Papercorp Pty Ltd v Nicolaou and Arthur Robinson (Grafton) Pty Ltd v Carter as authority for its decision. The court ordered that Lindsay pay Papercorp's costs of the application.

Orders