Donohue v Attorney-General for Victoria (Vexatious Proceedings)
[2024] VSC 564
•11 September 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 04352
| NEVILLE DONOHUE | Plaintiff |
| v | |
| ATTORNEY GENERAL FOR VICTORIA | Defendant |
---
JUDGE: | Keogh J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 August 2024 |
DATE OF JUDGMENT: | 11 September 2024 |
CASE MAY BE CITED AS: | Donohue v Attorney-General for Victoria (Vexatious Proceedings) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 564 |
---
PRACTICE AND PROCEDURE — Vexatious proceedings — Whether to make a litigation restraint order on court’s own motion — Where plaintiff has persistently instituted vexatious legal proceedings related to previous criminal conviction, sentence and imprisonment — Vexatious Proceedings Act 2014 (Vic) s 17 — Attorney-General (Vic) v Whittingham [2021] VSC 91 — Making of extended litigation restraint order appropriate in circumstances.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Self-represented | |
| For the Defendant | L Brown SC with M Narayan | Victorian Government Solicitor |
HIS HONOUR:
This proceeding is the 21st attempt by the plaintiff, Neville Donohue (‘Donohue’), to challenge the circumstances of his criminal conviction, sentence and/or imprisonment for various offences in 2018. Each of Donohue’s attempts to quash or remove the effect of his conviction have failed.
The principal subject matter of the current proceeding is Donohue’s second petition for mercy submitted to the Attorney-General on 14 February 2022 (‘second petition’). On 13 June 2024, I heard Donohue’s application for an order compelling the Attorney-General to recommend that the second petition be granted and that there be an exercise of the prerogative power in respect of his criminal conviction; or alternatively, that the Attorney-General refer his case to the Court of Appeal. I dismissed that application on 20 June 2024 on the basis that it was without merit.[1]
[1]Donohue v A-G (Vic) [2024] VSC 339.
After delivering judgment, I raised for consideration by the parties whether an order against Donohue should be made under Part 3 or 4 of the Vexatious Proceedings Act 2014 (Vic) (‘VP Act’). I ordered that the defendant file and serve a document setting out the provisions, principles and authorities relevant to the court’s power to make orders under the VP Act. My orders also provided a timetable for the filing of evidence and submissions by the parties.
For the following reasons, I conclude that an extended litigation restraint order should be made pursuant to s 17 of the VP Act relating to Donohue’s conviction, sentence and imprisonment, and any decision by any person or court related to those subjects.
Materials
The following materials were filed by the parties relevant to the consideration of whether to make an order under the VP Act:
(a) A notice of provisions, principles and authorities filed by the defendant on 28 June 2024;
(b) Affidavits of:
(i) Sophie Miller (‘Miller’), solicitor at the Victorian Government Solicitor’s Office with conduct of the proceeding for the defendant, affirmed 12 July 2024; and
(ii) Donohue, affirmed 12 July 2024;
(c) The defendant’s submissions dated 2 August 2024; and
(d) Donohue’s submissions dated 2 August 2024.
The defendant also provided the court with an aide memoire summarising the relevant proceedings in tabular form.
In her affidavit, Miller said that Donohue had commenced 20 proceedings since late 2018. Those proceedings include 12 appeals, five applications for judicial review and three claims in tort. Miller summarised each of the relevant proceedings and exhibited a copy of each judgment delivered. Donohue agreed that Miller’s affidavit was accurate.
Background
On 19 September 2018, Donohue was found guilty of 12 charges of making a false document, three charges of attempting to pervert the course of justice and four charges of perjury.[2] The charges arose from his falsification of documents purporting to be from medical professionals and making of false statutory declarations, each for the purpose of avoiding the finalisation of other criminal charges then pending against him.[3]
[2]DPP v Donohue [2018] VCC 1578, [1].
[3]Ibid [11]-[52].
On 25 September 2018, Donohue was sentenced to 53 months’ imprisonment.[4] Donohue has served his term of imprisonment and is no longer in custody.
[4]Ibid [102].
Since 2018, Donohue has instigated 21 proceedings relevant to the Court’s current determination of whether to make an order under the VP Act. These proceedings fall into three categories. The first category of proceedings concerns Donohue’s conviction in 2018. These include:
(a) eight applications in this Court for leave to appeal and/or extensions of time to seek leave to appeal;
(b) three applications in the High Court of Australia for special leave to appeal against decisions of the Court of Appeal; and
(c) two applications for judicial review concerning petitions for mercy made in relation to his conviction (including the one relevant to the current proceeding).
The second category of proceedings concerns the sentence arising from Donohue’s criminal conviction. These include three applications in this Court, being one for an extension of time to appeal and two for review of decisions made to refuse documents for filing; and one application for special leave to appeal to the High Court.
The third category includes proceedings related to the circumstances of Donohue’s imprisonment while under sentence for his criminal convictions. This category includes four proceedings in this Court:
(a) One judicial review proceeding concerning a decision to refuse him ‘emergency management days’ while in prison;
(b) Two proceedings in negligence concerning the refusal of emergency management days and the suspension of contact visits; and
(c) One application for review of a decision to refuse to accept for filing documents commencing a negligence proceeding concerning the suspension of contact visits.
Procedural history
There is considerable overlap between the subject matter of the applications and submissions made by Donohue in each of the 21 proceedings commenced or sought to be commenced by him, and the determinations made by the relevant courts to which he applied (or attempted to apply). A brief outline of each proceeding follows.
Appeals and attempted appeals in respect of conviction and/or sentence
Donohue v The Queen (No 1) [2019] VSCA 160
On 9 December 2018, Donohue applied to the Court of Appeal for an extension of time to seek leave to appeal against his sentence.[5] The proposed grounds of appeal concerned hardship to his family said to have been occasioned by the sentence, and errors alleged to have been made by the sentencing judge in assessing certain medical evidence.[6]
[5]Donohue v The Queen (No 1) [2019] VSCA 160, [2] (Priest and Beach JJA).
[6]Ibid [3].
The Court of Appeal refused the application on 2 July 2019 on the basis that the proposed appeal enjoyed no prospects of success and that it would be futile to grant the extension of time sought.[7]
Donohue v The Queen (No 2) [2019] VSCA 274
[7]Ibid [54].
On 8 July 2019, Donohue applied to the Court of Appeal for an extension of time to seek leave to appeal against his conviction.[8] The proposed grounds of appeal variously alleged that prosecution witnesses had given false or misleading evidence; the prosecutor withheld evidence; evidence was otherwise withheld from the jury; the judge should have obtained certain evidence; and the jury verdict was ‘unsafe and unsatisfactory’.[9]
[8]Donohue v The Queen (No 2) [2019] VSCA 274, [4] (Priest and Beach JJA).
[9]Ibid [10]-[12].
On 25 November 2019, the Court of Appeal refused the application on the basis that the proposed appeal was ‘hopeless’ and, therefore, that it would be futile to grant an extension of time.[10] In doing so, the Court held that the proposed grounds were ‘bereft of any substance’ and ‘utterly devoid of merit’.[11]
Donohue v The Queen [2020] HCASL 130
[10]Ibid [7].
[11]Ibid [14], [23].
Following the Court of Appeal’s decision on 25 November 2019, Donohue sought special leave to appeal that decision to the High Court.
On 12 June 2020, the High Court dismissed the application on the bases that Donohue had not identified a question of principle which it would be in the interests of justice for the High Court to consider, or any reason to doubt the correctness of the Court of Appeal’s judgment; and that an appeal to the High Court would enjoy no prospects of success.[12]
Donohue v The Queen [2020] HCASL 242
[12]Donohue v The Queen [2020] HCASL 130.
Following the Court of Appeal’s decision on 2 July 2019, Donohue sought special leave to appeal that decision to the High Court and an extension of time within which to do so.[13] On 12 November 2020, the High Court dismissed the application on the basis that the proposed appeal would enjoy insufficient prospects of success and that it would be futile to grant the extension of time sought.[14]
Donohue v The Queen (No 3) [2020] VSCA 302
[13]Donohue v The Queen [2020] HCASL 242.
[14]Ibid.
On 9 September 2020 Donohue brought another application for leave to appeal against his conviction, this time purportedly pursuant to s 326A of the Criminal Procedure Act 2009 (Vic).[15] He sought to rely on what he submitted was ‘fresh and compelling evidence’.[16]
[15]Donohue v The Queen (No 3) [2020] VSCA 302, [16] (Priest, Niall and T Forrest JJA).
[16]Ibid [1].
On 26 November 2020, the Court of Appeal dismissed the application as an abuse of process, on the basis that it sought to re-agitate matters finally determined against him by the Court of Appeal and the High Court.[17] In doing so, the Court further observed that the evidence Donohue relied on was ‘not fresh’ and ‘far from compelling’, and that ‘precious judicial time [had] once more been expended dealing with another entirely hopeless proceeding brought by this applicant’.[18]
Donohue v The Queen [2021] HCASL 45
[17]Ibid [1], [5]-[13].
[18]Ibid [14]-[15].
Donohue sought special leave to appeal against the Court of Appeal’s decision in Donohue v The Queen (No 3) [2020] VSCA 302. On 11 March 2021 the High Court refused the application on the basis that it sought to re-agitate issues that had been finally determined, and that it was an abuse of process.[19]
Donohue v Phillips [2022] VSC 558
[19]Donohue v The Queen [2021] HCASL 45.
On 20 July 2022, Donohue attempted to commence judicial review proceedings seeking to impugn the validity of various decisions made by the judge and informant during his criminal trial.[20] On or about 26 July 2022, the Prothonotary declined to accept his documents for filing on the basis that the proposed proceeding sought to re-agitate matters which were the subject of his sentencing appeal.[21] Donohue subsequently sought that the Court direct that the originating process be sealed or accepted for filing pursuant to r 27.06(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’).[22]
[20]Donohue v Phillips [2022] VSC 558, [1], [4]-[7].
[21]Ibid [8].
[22]Ibid [9].
On 19 September 2022, the Court refused the application on the basis that the proposed judicial review proceeding sought to re-agitate matters already determined against Donohue by both the Court of Appeal and the High Court.[23] It is apparent from the Court’s reasons that the Court considered the application to be an abuse of process.[24]
Donohue v The King (No 4) [2022] VSCA 206
[23]Ibid [16]-[17].
[24]Ibid [17].
On 5 September 2022, Donohue sought to file an application for leave to appeal against his conviction and against the decisions of the Court of Appeal made on 25 November 2019 and 26 November 2020.[25] The Registrar of the Criminal Division of the Court of Appeal refused to seal the application on the basis that the application would be an abuse of process.[26] Donohue subsequently sought that the Registrar’s decision be referred to the Court of Appeal under r 1A.04(4) and (5) of the Rules.[27]
[25]Donohue v The King (No 4) [2022] VSCA 206, [5]-[6], [10]-[11], [13] (Kaye JA).
[26]Ibid [1].
[27]Ibid.
On 21 September 2022 the Court of Appeal upheld the Registrar’s decision, on the basis that the application sought to re-agitate matters already determined by the Court of Appeal and would therefore constitute an abuse of process.[28]
Donohue v The King (No 5) [2022] VSCA 232
[28]Ibid [17]-[30].
On 26 September 2022, Donohue again sought to file an application for leave to appeal against his conviction purportedly pursuant to s 326A of the Criminal Procedure Act 2009 (Vic).[29] The proposed grounds alleged that certain evidence was not adduced in his criminal trial and that the charge to the jury was flawed.[30] On 6 October 2022, the Registrar again refused to seal the documents on the basis that the documents, if filed, would constitute an abuse of process.[31] On 10 October 2022 Donohue sought that the Registrar’s decision be referred to the Court of Appeal.[32]
[29]Donohue v The King (No 5) [2022] VSCA 232, [1]-[2], [9] (Kennedy JA).
[30]Ibid [10]-[12].
[31]Ibid [3].
[32]Ibid [4].
On 25 October 2022, the Court of Appeal upheld the Registrar’s decision. It found that the application sought to re-agitate matters previously determined by the Court of Appeal and the High Court, and would therefore constitute an abuse of process.[33]
Donohue v The King [2023] HCASL 28
[33]Ibid [13]-[18].
Following the Court of Appeal’s decision on 25 October 2022, Donohue sought special leave to appeal to the High Court from that decision. On 9 March 2023, the High Court refused the application on the basis that it sought to re-agitate issues that had already been finally determined and was an abuse of process.[34]
Donohue v The King (No 6) [2023] VSCA 224
[34]Donohue v The King [2023] HCASL 28.
On 29 July 2023, Donohue sought to file another application for leave to appeal against his conviction purportedly pursuant to s 326A of the Criminal Procedure Act 2009 (Vic).[35] On 10 August 2023, the Registrar again refused to seal the application on bases including that, if sealed, the documents would constitute an abuse of process.[36] On 14 August 2023, Donohue again sought that the Registrar’s decision be referred to the Court of Appeal.[37]
[35]Donohue v The King (No 6) [2023] VSCA 224, [1]-[2] (Taylor JA).
[36]Ibid [3]-[4].
[37]Ibid [5].
On 15 September 2023, the Court of Appeal upheld the Registrar’s decision. It found that the documents lodged by Donohue on 29 July 2023 did not vary in substance from those which were the subject of the Court of Appeal’s decision in Donohue v The King (No 5) [2022] VSCA 232; sought to re-agitate matters that had been argued in support of applications finally determined by the Court of Appeal and the High Court; and, if accepted, would constitute an abuse of process.[38]
Donohue v Chief Justice of the Supreme Court of Victoria [2023] VSC 686
[38]Ibid [32]-[35].
On 18 September 2023, Donohue sought to file an originating motion for judicial review in respect of a purported decision of the Chief Justice of this Court to ignore complaints made by him concerning decisions of other judicial officers.[39] The Prothonotary rejected the filing on bases including that Donohue had not identified any legal basis for a power of the Chief Justice to direct another Judge to overturn or reconsider a decision made in open court, and that Donohue’s documents if sealed would constitute ‘a particularly egregious abuse of process’.[40] On 20 September 2023, Donohue sought review of the Prothonotary’s decision under r 28A.04(5) of the Rules.[41]
[39]Donohue v Chief Justice of the Supreme Court of Victoria [2023] VSC 686, [1], [13]-[20].
[40]Ibid [21]-[23].
[41]Ibid [4], [24]-[25].
On 23 November 2023, the Court upheld the Prothonotary’s decision. It determined that the proposed originating motion was misconceived as a matter of law; was an attempt to relitigate issues already determined by the Court as part of previous appeals and review processes concerning Donohue’s conviction and sentence; and would, if sealed, constitute an abuse of process.[42]
Donohue v The King (No 7) [2024] VSCA 91
[42]Ibid [26]-[35].
On 28 February 2024, Donohue again sought to file documents applying for leave to appeal against his conviction, in a form substantially identical to the documents which were the subject of the Court of Appeal’s decision in Donohue v The King (No 6) [2023] VSCA 224.[43] The Registrar refused to seal his documents on the basis that they sought to re-litigate matters already dealt with by the Court of Appeal and by the High Court, and would therefore be an abuse of process. Donohue again sought review of the Registrar’s decision.[44]
[43]Donohue v The King (No 7) [2024] VSCA 91, [15]-[18] (T Forrest JA).
[44]Ibid [19].
On 10 May 2024, the Court of Appeal upheld the Registrar’s decision on the basis that sealing the documents would perpetuate an abuse of process. The Court noted that it ‘[would] not countenance re-agitation of already determined issues’.[45]
Donohue v The King (No 8) [2024] VSCA 135
[45]Ibid [20].
On or around 14 May 2024, Donohue again sought to file documents applying for leave to appeal against his conviction, in a form that was substantially the same as those the subject of Donohue v The King (No 7) [2024] VSCA 91.[46] The filing was again rejected. 21 minutes after receiving reasons for that rejection, Donohue sought review of the decision.[47]
[46]Donohue v The King (No 8) [2024] VSCA 135, [4]-[5] (T Forrest JA).
[47]Ibid [5].
On 17 June 2024, the Court of Appeal upheld the rejection on the basis that sealing the documents would perpetuate an abuse of process identified on several occasions by the Court of Appeal and the High Court.[48]
[48]Ibid [6].
Proceedings concerning imprisonment
Donohue v Westin (No 1) [2022] VSC 37
By amended originating motion filed on 25 February 2021, Donohue brought an application for judicial review in respect of a refusal of his application for emergency management days during his imprisonment. The application was brought under s 58E of the Corrections Act 1986 (Vic). The grounds of review alleged that the decision was attended by error including failure to consider matters required to be considered, misapplication of the law, unreasonableness and/or failure to comply with s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic).[49]
[49]Donohue v Westin (No 1) [2022] VSC 37, [1], [6]-[14], [15]-[71].
On 9 February 2022, the Court dismissed the application on the basis that none of the grounds of review had been made out.[50]
Donohue v Westin (No 2) [2022] VSC 794
[50]Ibid [2], [72], [74].
On 12 April 2022, Donohue brought an action for damages in negligence against the defendant (in her capacity as a representative of Corrections Victoria) arising from the decision to refuse Donohue’s application for emergency management days during his imprisonment under s 58E of the Corrections Act 1986 (Vic).[51]
[51]Donohue v Westin (No 2) [2022] VSC 794, [13].
On 19 December 2022, the Court summarily dismissed the proceeding on bases including that there was no real prospect of Donohue establishing that imposition of a duty of care in the circumstances would not be inconsistent with the statutory scheme.[52] Donohue was ordered to pay the defendant’s costs of the proceeding.
Donohue v Secretary, of the Department of Justice and Community Safety (No 1) [2023] VSC 789
[52]Ibid [85]-[98].
In early February 2023, Donohue filed documents seeking to commence a proceeding in negligence against the Secretary of the Department of Justice and Community Safety. The application related to a decision of the Secretary to suspend contact visits to Donohue while he was in prison. The Prothonotary refused to seal the filing on the basis that the documents sought to re-litigate matters already determined by the Court — relevantly in Donohue v Westin (No 2) [2022] VSC 794 above — and would, if sealed, be an abuse of process. On 24 February 2023, Donohue sought review of the Prothonotary’s decision.[53]
[53]Donohue v Secretary, of the Department of Justice and Community Safety (No 1) [2023] VSC 789, [1]-[2], [11], [24]-[29].
On 21 December 2023, the Court upheld the Prothonotary’s decision. Although the Court did not consider that the proposed proceeding sought to re-litigate matters it had already determined, the Court ultimately held that the documents, if sealed, would nevertheless constitute an abuse of process because the proposed claim was foredoomed to fail.[54]
Donohue v Secretary, Department of Justice and Safety (No 2) [2024] VSC 337
[54]Ibid [30]-[42], [53]-[61].
On or about 22 January 2024, Donohue lodged documents in substantially the same form as those which were the subject of the Court’s decision in Donohue v Secretary, of the Department of Justice and Community Safety (No 1) [2023] VSC 789 above. The documents were accepted for filing.[55]
[55]Donohue v Secretary, Department of Justice and Safety (No 2) [2024] VSC 337, [1]-[5].
On 21 June 2024 the Court summarily dismissed the proceeding on the basis that, for the reasons given by the Court in Donohue v Secretary, of the Department of Justice and Community Safety (No 1) [2023] VSC 789, the proposed proceeding was foredoomed to fail.[56]
[56]Ibid [8]-[17].
The Court also ordered Donohue to pay the Secretary’s costs of and incidental to her application for summary dismissal on an indemnity basis, and to otherwise pay the Secretary’s costs of and incidental to the proceeding on a standard basis. The Court considered that a special costs order was justified in circumstances where a judicial officer had previously informed Donohue that his claim was hopeless, and where Donohue had breached certain obligations under the Civil Procedure Act 2010 (Vic).[57]
[57]Ibid [18]-[22], [26]-[27].
Proceedings concerning petitions for mercy
On 29 January 2020, Donohue petitioned the Governor of Victoria for exercise of the prerogative of mercy in respect of his conviction (‘first petition’). On 21 April 2021, he commenced judicial review proceedings seeking to compel the Attorney-General to make a decision on the first petition. The Attorney-General subsequently made a decision on the first petition and the proceeding was dismissed by consent on 13 October 2021.[58]
[58]Donohue v A-G (Vic) [2024] VSC 339, [6].
Donohue’s second petition with respect to his conviction, submitted to the Attorney-General on 14 February 2022, is the subject of the current proceeding. By originating motion filed on 17 August 2023, he sought an order compelling the Attorney-General to make a recommendation to the Premier of Victoria and/or the Governor of Victoria that the second petition be granted, and that there be an exercise of the prerogative of mercy in respect of his conviction. It became clear at trial that Donohue’s alternative position was that the Attorney-General should be ordered to refer his case to the Court of Appeal under s 327 of the Criminal Procedure Act 2009 (Vic) so that the appeal against his conviction could be heard, allowed and a further jury trial ordered.
At the hearing before me on 13 June 2024, Donohue made submissions to the effect that he believed that he was wrongfully convicted and has been the victim of a ‘severe miscarriage of justice’. He also accepted that he had repeatedly sought to have that belief vindicated by proceedings and applications in this Court and applications in the High Court, and that he did not consider those repeated efforts to have been improper.
When I indicated during the hearing that I was considering making an order against Donohue under the VP Act in light of his litigation history, the following exchange occurred:
MR DONOHUE: I understand, Your Honour. I've - what Your Honour is, in layman's terms, saying is, I've had my fair shake at it, and, in each case, I haven't been able to get my evidence before a new jury, and the system is unlikely to allow me to do so. As you say, I've been through the Supreme Court, the High Court, and now through the Attorney-General.
And without any of my evidence that I’ve put forward regarding what I consider a wrongful conviction and severe miscarriage of justice actually being addressed, and without being able to put it before an actual jury to determine, I should consider giving up.
HIS HONOUR: Well, my concern is that you won’t give up, and that what will continue to happen is that we’ll continue to have proceedings raising the same argument.
MR DONOHUE: Look, I’d – I’d agree with Your Honour…
I refused Donohue’s application on 20 June 2024. After delivering my reasons, I again raised with the parties that I was considering making an order under the VP Act. In response, Donohue accepted that his history of dealings with the Court could raise this issue.
Statutory provisions and principles
The purposes of the VP Act include ‘balanc[ing] individual rights of access to the courts with the public interest in an efficient and effective justice system’.[59] In furtherance of that purpose, this Court is empowered in prescribed circumstances to make an extended litigation restraint order under Part 3,[60] and a general litigation restraint order under Part 4 (‘restraint orders’).[61] The Court may make either type of order on its own motion.[62]
[59]Vexatious Proceedings Act 2014 (Vic) s 1(a) (‘VP Act’).
[60]Ibid s 17.
[61]Ibid s 29.
[62]Ibid ss 17(4)(a), 29(4)(a).
An extended litigation restraint order may direct that the person must not commence and/or continue a proceeding in a ‘Victorian court or tribunal’[63] against a named person or entity or in respect of a matter described in the order, without leave of the Court or the Victorian court or tribunal in which the proceeding is being heard.[64] Such an order may include any other direction or order that the Court considers appropriate.[65] A general litigation restraint order may operate in the same way, with the exception that such an order is not confined by reference to named parties or particular matters.[66]
[63]Ibid s 3.
[64]Ibid s 20(1).
[65]Ibid s 20(2), (3).
[66]Ibid s 30.
The following definitions in s 3 of the VP Act are relevant to restraint orders:[67]
[67]Ibid s 3.
vexatious proceeding includes the following—
(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[.]
…
proceeding means any matter in an Australian court or tribunal, whether civil or criminal, including—
(a)any cause, matter, action, suit, proceeding, trial, complaint or inquiry of any kind within the jurisdiction of an Australian court or tribunal;
(b)any proceeding (including any interlocutory application) taken in connection with or incidental to a proceeding before an Australian court or tribunal;
(c)any appeal, review or other challenge, including an application for judicial review or an application for leave to appeal.
…
Australian court or tribunal means—
(a)a Victorian court or tribunal; or
(b)a court or tribunal of the Commonwealth or of another State or a Territory[.]
The effect of a restraint order is that subject to its terms, a proceeding to which it relates is stayed and a proceeding commenced in contravention of the order is of no effect.[68] However, an extended litigation restraint order does not affect a person’s right to commence or continue a proceeding in the relevant jurisdiction against a person or entity or in respect of a matter not specified in the order.[69]
[68]Ibid ss 25, 32.
[69]Ibid s 26(1).
Restraint orders remain in force for the period specified in the order. This may be indefinite or extended, if the Court considers extension to be in the interests of justice.[70]
[70]Ibid ss 27, 33.
Requirements for the making of each type of order
Restraint orders restrict a person’s right of free access to the courts, and are therefore not made lightly.[71] Nevertheless, the increasing disruption of the efficient management of the Court’s business caused by allowing vexatious proceedings to be instituted and maintained without check is also a serious matter.[72]
[71]A-G (Vic) v Whittingham [2021] VSC 91, [2] (‘Whittingham’);A-G (Vic) v Horvath [2001] VSC 269, [5] (‘Horvath’).
[72]Storry v Parkyn [2024] FCAFC 100, [18] (Lee, Feutrill and Jackman JJ).
The Court may make an extended litigation restraint order against a person if it is satisfied, relevantly, that the person has ‘frequently’ commenced or conducted vexatious proceedings against a person or other entity, or in relation to a matter.[73] Whether the threshold of ‘frequently’ is satisfied will depend on all the circumstances of the case.[74] When considering an analogous power conferred on the Federal Court of Australia, that Court held that ‘[t]he number of proceedings instituted need not be large in order for it to be considered frequent … if a litigant attempts to re-litigate or re-agitate an issue previously determined by the Court’.[75]
[73]VP Act (n 59) s 17(1).
[74]Explanatory Memorandum, Vexatious Proceedings Bill 2014 (Vic) cl 17.
[75]Fokas v Mansfield as Bankrupt Estate of Maria Fokas (No 2) [2020] FCA 30, [38] (Wheelahan J).
The Court may make a general litigation restraint order against a person if the Court is satisfied that the person has ‘persistently and without reasonable grounds’ commenced or conducted vexatious proceedings.[76] The term ‘persistently’ in this context has been interpreted to mean ‘continually and repeatedly’[77] and ‘suggest[ing] determination and an element of stubbornness’.[78] Whether the requirement of ‘persistently’ is satisfied depends on all the circumstances of the case. It may be satisfied by a small number of proceedings that seek to re-litigate already decided issues.[79] Further, in Attorney-General (Vic) v Whittingham [2021] VSC 91, Ginnane J found that the proceeding was brought ‘without reasonable cause’ in the sense that it was brought without a proper basis.[80]
[76]VP Act (n 59) s 29(1).
[77]Whittingham (n 71) [147].
[78]A-G (Vic) v Weston [2004] VSC 314 [23](5) (‘Weston’), citing A-G (NSW) v Wentworth (1988) 14 NSWLR 481, 492 (Roden J).
[79]A-G (Vic) v Gargan [2013] VSC 222, [9]; Weston (n 78) [21].
[80]Whittingham (n 71) [147].
In determining whether the requirements for the making of a restraint order are satisfied, the Court may take into account any matter it considers relevant, including, relevantly: a proceeding commenced or conducted by the person in any Australian court or tribunal; the existence of an order made by an Australian court or tribunal against the person; or any other matter relating to the way in which the person conducts or has conducted litigation.[81] A person against whom the Court is considering making a restraint order has a right to be heard.[82]
[81]VP Act (n 59) ss 17(2), 29(2).
[82]Ibid s 45(1).
The requirement for there to have been ‘vexatious proceedings’ is central to enlivening the Court’s power to make a restraint order. In accordance with relevant authorities, the ‘vexatious proceedings’ requirement may be satisfied where, among other circumstances:
(a) a person brings proceedings to right the wrong of a perceived conspiracy against them;[83]
[83]Whittingham (n 71) [146]; citing Granich Partners v Yap [2003] WASC 206 (‘Granich Partners’).
(b) proceedings involve ‘outlandish allegations’ and seek ‘forms of relief that the courts do not grant’ (even if it may be possible for the Court to identify a cause of action for which, arguably, there may be some form of remedy);[84]
[84]A-G (WA) v Michael [1999] WASCA 181, [126] (Pidgeon J) (‘Michael’).
(c) proceedings are an attempt to re-litigate matters which have already been determined by a final and binding decision of a court;[85]
[85]Granich Partners (n 83) [46]; citing Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478, 488 (Yeldham J). See also Whittingham (n 71) [148].
(d) proceedings are so obviously untenable or manifestly groundless as to be utterly hopeless;[86] or
(e) a person has caused others to incur legal costs in responding to hopeless applications, in circumstances where they have blithely disregarded costs orders made against them.[87]
Proceedings may be vexatious even though they are not completely devoid of merit or brought in bad faith.[88]
[86]Weston (n 78) [14]-[15].
[87]Soden v Croker (No 2) (2016) 334 ALR 540, 595 [221] (Perry J); applying A-G (NSW) v Croker [2010] NSWSC 942, [134].
[88]Whittingham (n 71) [148]; Weston (n 78) [15]; Michael (n 84) [126] (Pidgeon J).
In determining whether proceedings are vexatious, it is necessary to have regard to their ‘nature and substance’.[89] It is generally necessary only to have regard to any reasons for judgment or order of the relevant court. If a proceeding has been dismissed or struck out on the ground that it is vexatious or an abuse of process, it is usually unnecessary to look behind that order.[90] In this respect, the Court ‘is not concerned with a minute individual examination of each proceeding’, but with ‘the overall impression created by the number of proceedings, their general character and their results’.[91]
[89]Whittingham (n 71) [146]; citing Horvath (n 71) [28].
[90]Whittingham (n 71) [126]; A-G (Vic) v Garrett (2017) 51 VR 777, 780-781 [8]-[10] (McDonald J); Weston (n 78) [16]; Horvath (n 71) [28]; Kay v A-G (Vic) (2000) 2 VR 436, 437-8 (Ormiston JA).
[91]Whittingham (n 71) [127], [145]; quoting Horvath (n 71) [28].
Even if the Court is satisfied that the requirements for enlivening its power to make a restraint order are satisfied, the Court retains a discretion as to whether to do so. That discretion must be exercised by reference to the subject matter and purpose of the VP Act, although is otherwise unconfined.[92] Given the protective purpose of the VP Act, it is relevant to the Court’s exercise of discretion that a person lacks insight into their past conduct or otherwise acts in a way that suggests that the commencement of further vexatious proceedings is likely.[93] It is also relevant to know the extent of the damage and inconvenience that a person’s forays into the courts have caused, pecuniary or otherwise.[94] The existence of unpaid costs orders may therefore weigh in favour of the Court exercising its discretion.[95] Ultimately, the Court ‘must look to the person’s conduct as a whole to determine if, in all the circumstances … [the restraint order] ought to be made’.[96]
[92]Interpretation of Legislation Act 1984 (Vic), s 35(a); Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398, [12] (‘Gargan No 2’).
[93]Gargan No 2 (n 92) [12]; quoted in Attorney-General for the State of Victoria v Bahonko [2011] VSC 352, [93] (‘Bahonko’). See also Whittingham (n 71) [148].
[94]Gargan No 2 (n 92) [12]; quoted in Bahonko (n 93) [93].
[95]See also Soden v Croker (No 2) (2016) 334 ALR 540, 595 [221] (Perry J); quoting Attorney-General (NSW) v Croker [2010] NSWSC 942, [134].
[96]A-G (Vic) v Slaveski [2014] VSC 48, [35].
Submissions
Attorney-General
The Court should make an extended litigation restraint order against Donohue under s 17 of the VP Act. The order should be framed by reference to the matters of the plaintiff’s conviction, sentence and imprisonment, including any decision by any person or court related to those subjects.
The Court’s power to make an extended litigation restraint order is enlivened in this case because:
(a) The Court may make an extended litigation restraint order if it is satisfied, relevantly, that the person has ‘frequently’ commenced or conducted ‘vexatious proceedings’ in relation to a ‘matter’.
(b) Since December 2018, Donohue has brought 21 ‘proceedings’ (within the meaning of that term) in this Court and the High Court.
(c) All of these proceedings can be characterised as having been brought in relation to one, or more, of three (albeit, related) matters: Donohue’s conviction for certain dishonesty offences; his sentence for those offences; or the circumstances of his time in prison while under sentence for those offences.
(d) The proceedings can be characterised as ‘vexatious’ in the requisite sense because they have, variously: been an abuse of process; been commenced and/or pursued without reasonable grounds; sought to re-litigate issues already finally determined against him; caused others to incur legal costs in responding to hopeless applications in circumstances where he has blithely disregarded a cost order made against him; and/or been an attempt to right the wrong of a perceived conspiracy against him.
Insofar as the Court has a residual discretion as to whether to make a litigation restraint order once its power to do so is enlivened, it would be appropriate to do so in the circumstances. This is because Donohue has continued to bring proceedings despite a cost order being made against him; and has expressed his intent to continue using the courts to seek to vindicate his beliefs as to the wrongfulness of his conviction, sentence and/or imprisonment.
Irrespective of whether the Court makes an order under the VP Act, the Attorney-General seeks her costs in respect of the Court’s consideration of the issue. The Attorney-General also seeks her costs in respect of Donohue’s application for judicial review the subject of this proceeding, and that the proceeding otherwise be dismissed.
Donohue
The Court should not declare Donohue a vexatious litigant. He should be allowed to continue to pursue justice for the serious miscarriages of justice and wrongful conviction that he has suffered. The Court should also recommend that Donohue’s conviction be referred for appeal before a jury.
Donohue’s proceedings cannot be considered ‘vexatious’ either in the ordinary meaning of the term or in its legal meaning. Each of his applications for leave to appeal his conviction have followed all the correct procedures and contained all necessary grounds sufficient for winning an appeal under relevant provisions of the Justice Legislation Amendment (Criminal Appeals) Act 2019 (Vic) and the Criminal Procedure Act 2009 (Vic). In denying Donohue’s applications for leave to appeal, the courts have failed to explain why the evidence contained in those applications could not be considered ‘fresh and compelling’ for the purposes of an appeal.
Donohue’s conviction was wrongful and constituted a miscarriage of justice due to the improper conduct of the trial judge and his legal representatives. The jury in the criminal trial was denied access to critical factual evidence which would have undoubtedly exonerated him of all charges. The reason his previous proceedings have been deemed an ‘abuse of process’ or ‘finally determined’ is because he has not satisfactorily explained his grounds of appeal. The matters raised in Donohue’s applications cannot be considered ‘finally determined’ until they have been put before a jury in an appeal.
Analysis
I accept the submissions of the Attorney-General in this proceeding that having regard to Donohue’s litigation history as a whole, the Court should make an extended litigation restraint order against him with respect to the matters of his conviction, sentence and imprisonment, including any decision by any person or court related to those subjects.
The Court’s power to make an order under s 17 of the VP Act with respect to Donohue is clearly enlivened. First, all of Donohue’s proceedings can be characterised as having been brought in relation to one or more of three matters, those being his conviction, sentence, and the circumstances of his time in prison.
Second, the definition of ‘proceeding’ in the VP Act is broad and inclusive. It extends to Donohue’s applications in this Court for extensions of time, leave to appeal, review of decisions refusing to accept documents for filing, judicial review and in negligence, as well as applications for special leave to appeal to the High Court. This Court and the High Court are ‘Australian court[s]’ in the requisite sense.
Third, I am satisfied that the proceedings commenced and continued by Donohue are vexatious. This Court and the High Court have, on multiple occasions, determined that the proceedings are an abuse of process, have been commenced and/or pursued without reasonable grounds, and/or sought to re-litigate issues already finally determined against him. The proceedings have also caused others to incur legal costs in responding to applications deemed to have no prospect of success. Further, to the extent that Donohue believes he was wrongfully convicted because various public officers deliberately misled or withheld evidence from the jury in his criminal trial, his repeated efforts to overturn his conviction can be seen as an attempt to right the wrong of a perceived conspiracy against him. Donohue repeated his belief in his written and oral submissions before me on 22 August 2024. While it is not readily apparent that Donohue’s proceedings were brought in bad faith, or with the intention of causing harassment, delay or detriment, the nature and substance of the proceedings as a whole can be considered vexatious.[97]
[97]Whittington (n 71) [146]-[147].
Fourth, the requirement of frequency is satisfied by reference to the number of proceedings brought by Donohue and the period of time within which those proceedings were brought (21 proceedings in approximately a five-and-a-half-year period), and the fact that most have been attempts to re-litigate previously determined issues.
Insofar as the Court has a residual discretion as to whether to make a litigation restraint order once its power to do so is enlivened, the Attorney-General submitted that it would be appropriate to do so in these circumstances where:
(a) Donohue commenced vexatious proceedings even after costs were awarded against him, suggesting that the risk of an adverse costs order is not a sufficient deterrent to him commencing vexatious proceedings in the future; and
(b) He has demonstrated on multiple occasions that unless restrained he intends to continue to use the courts to seek to vindicate his beliefs as to the wrongfulness of his conviction, sentence and/or imprisonment.
Donohue maintains his assertion that he was the victim of a miscarriage of justice and wrongfully convicted. He appears to have some level of insight into the repetitive and obstinate conduct of his proceedings, accepting that he has raised virtually identical arguments in the numerous proceedings commenced by him since 2018. He said this was because he believed the courts did not correctly understand the grounds for appeal as set out in his submissions. He also indicated during the hearing that he had ‘almost hit the point of giving up’ his attempts to challenge his conviction and imprisonment, due to his repeated failure to be granted an appeal.
However, I consider it unlikely that Donohue will cease commencing proceedings related to his conviction, sentence and imprisonment if a restraint order is not made. Donohue stated that he does not accept that the matters he has repeatedly sought to litigate are ‘finally determined’. He remains steadfast in his conviction that he is entitled to continue bringing legal proceedings until the evidence he claims will exonerate him of the criminal charges is put before a new jury. Donohue also indicated that costs orders made against him are not a sufficient deterrent:
HIS HONOUR: So Mr Brown put as reasons why I should exercise a discretion to make the restraint order. First, that in a number of these proceedings when they’ve been finally determined there had been costs orders made against you that you pay the other side’s costs of the proceeding and that that hasn’t been shown to be any impediment to you continuing to institute further proceedings so that you’re not motivated to stop by the fact of costs orders.
MR DONOHUE: I guess that’s one way of putting it, Your Honour. Motivated to stop if – if the imposing ‑ ‑ ‑
HIS HONOUR: A costs order doesn’t really bear upon your consideration about whether or not to continue.
MR DONOHUE: Yeah, it doesn’t change my feelings about the way things were.
In the interests of balancing Donohue’s right to access the courts with the public interest in an efficient justice system, the making of an extended litigation restraint order is appropriate in this case. Donohue’s litigation history makes clear that the vexatious proceedings brought by him concern principally the three matters referred to above. There is nothing before me that suggests there is a significant risk or likelihood that Donohue will commence further vexatious proceedings on other subjects, such that a general litigation restraint order is more appropriate in the circumstances.
I also accept the Attorney-General’s submissions with respect to the procedure in O 83 of the Rules and the Court’s power to order costs in respect of the Court’s own motion consideration of whether to make an order under the VP Act, notwithstanding that the procedure in O 83 has not been followed in this case.
Conclusion
I will make an extended litigation restraint order pursuant to s 17 of the VP Act. The order will refer to the matters of Donohue’s conviction, sentence and imprisonment and any decision by any person or court related to those subjects.
---
1
29
0