SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
GEORGANAS v BARKLA
[2021] SASC 47
Judgment of the Honourable Justice Livesey
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - VEXATIOUS LITIGANT
Since 2011 the respondent has instituted over thirty proceedings, primarily in Western Australia, but also in the Federal Court and High Court which are all concerned in one way or another with the respondent’s worker’s compensation claim in 2010.
Orders have been made in the Western Australian and Federal jurisdictions prohibiting the respondent from instituting further proceedings without leave due to his persistent and vexatious litigation of what is referred to as the Form 3B issue.
The applicant is the Federal parliamentary representative of the respondent. On 4 July 2019, the respondent lodged a claim in the Magistrates Court due to the applicant’s alleged failure to respond to a letter sent by the defendant on the Form 3B issue.
The applicant seeks declaratory relief and orders prohibiting the respondent from instituting “any proceeding" in any court or tribunal of this State without leave pursuant to s 39 of the Supreme Court Act 1935 (SA) (the Act). In the alternative, the applicant seeks the same relief pursuant to this Court’s inherent jurisdiction or power.
The applicant also invited this Court to exercise the powers and functions of a Magistrate under the Magistrates Act 1983 (SA) and the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA).
Held per Livesey J, dismissing the s 39 application and making orders in the exercise of the Court’s inherent jurisdiction so as to prevent the respondent pursuing or commencing proceedings against the applicant or others re-litigating or concerning, whether directly or indirectly, the Form 3B issue.
1.To declare a person to be a vexatious litigant and make an order under s 39 of the Act represents a serious incursion on that person’s right of access to the courts. The Court is only empowered to consider exercising its discretion to make an order where the requirements of s 39 are clearly satisfied.
2.Where the respondent has commenced one proceeding, or possibly two sets of proceedings, in courts or tribunals of this State he has not "persistently instituted vexatious proceedings" within the meaning of s 39 of the Act and the exercise of the statutory discretion does not arise. Observations made as to whether other processes were "proceedings". It is a matter for Parliament whether the definition of “proceedings” in s 39 should be broadened so as to permit the Court to take into account proceedings commenced in any Australian court or tribunal.
3.As no South Australian Act or rules of court relevantly limit or circumscribe this Court’s inherent jurisdiction, the exercise of this Court’s inherent power extends beyond the power to restrain the commencement of new applications in existing proceedings and permits an order to be made restraining the initiation of new proceedings, at least where they represent an attempt to re-litigate, or are otherwise concerned…
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- Georganas v Barkla [2021] SASC 47
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- [2021] SASC 47
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CaseChat Overview and Summary
Orders
Orders of the court
Held per Livesey J, dismissing the s 39 application and making orders in the exercise of the Court’s inherent jurisdiction so as to prevent the respondent pursuing or commencing proceedings against the applicant or others re-litigating or concerning, whether directly or indirectly, the Form 3B issue.
1. To declare a person to be a vexatious litigant and make an order under s 39 of the Act represents a serious incursion on that person’s right of access to the courts. The Court is only empowered to consider exercising its discretion to make an order where the requirements of s 39 are clearly satisfied.
2. Where the respondent has commenced one proceeding, or possibly two sets of proceedings, in courts or tribunals of this State he has not "persistently instituted vexatious proceedings" within the meaning of s 39 of the Act and the exercise of the statutory discretion does not arise. Observations made as to whether other processes were "proceedings". It is a matter for Parliament whether the definition of “proceedings” in s 39 should be broadened so as to permit the Court to take into account proceedings commenced in any Australian court or tribunal.
3. As no South Australian Act or rules of court relevantly limit or circumscribe this Court’s inherent jurisdiction, the exercise of this Court’s inherent power extends beyond the power to restrain the commencement of new applications in existing proceedings and permits an order to be made restraining the initiation of new proceedings, at least where they represent an attempt at, or are otherwise concerned with, the re-litigation of an issue which has been finally determined.
4. The exercise of this Court’s inherent power also permits an order restraining the respondent from commencing new proceedings which comprise an abuse of process in other courts and tribunals of this State, at least where this Court exercises supervisory jurisdiction over those other courts and tribunals.
5. The exercise of the Court’s inherent power in this way is exceptional and should be reserved for clear cases. Ordinarily, applications to stay or dismiss proceedings as an abuse should be made in the court or tribunal where those proceedings will be heard.
6. Here, the Magistrates Court claim raises no cause of action known to the law and is an attempt by a claim in damages to collaterally attack the many decisions that have put the Form 3B issue to rest. In the circumstances of this case, it is appropriate to make an order staying the Magistrates Court claim.
7. Because the respondent has made it clear that he intends to persist with his litigation campaign, it is also appropriate to make an order that, subject to obtaining leave from a Judge of this Court, the respondent is restrained from commencing new proceedings in the courts or tribunals of this State where they attempt to re-litigate, or are otherwise concerned with, whether directly or indirectly, the Form 3B issue.
8. There is no good reason to exercise the powers of a Magistrate under the Magistrates Act 1983 (SA) and the Judicial Administration (Auxiliary Appointments and Powers) Act 1988 (SA) where the applicant has had the opportunity to seek an order in the Magistrates Court and orders can be made in this Court in the exercise of this Court's inherent powers.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
Alternatively, the applicant seeks the same relief from this Court pursuant to its inherent jurisdiction or power. As will be seen, I am only prepared to make orders in the exercise of this Court’s inherent powers.Vexatious litigant declarations Since 2011, the respondent has instituted over thirty proceedings, primarily in Western Australia, but also in the Federal Court and High Court of Australia.[1] These proceedings all relate in one way or another to the respondent’s workers compensation claim which followed stress injuries sustained at work in Geraldton, Western Australia, in 2010.[1] A list of decisions in prior proceedings is in Schedule A to these reasons. On 21 September 2016, the Attorney-General for Western Australia, the Honourable Michael Mischin MLC, obtained an order pursuant to s 4 of the Vexatious Proceedings Restriction Act 2002 (WA) prohibiting the respondent from instituting any proceedings unless he first obtained the leave of a court or tribunal, as the case requires.[2][2] Attorney-General for Western Australia v Barkla [2016] WASC 298 (Le Miere J). On 20 December 2018, Allianz obtained an order pursuant to s 37AO(2)(b) of the Federal Court of Australia Act 1976 (Cth) prohibiting the respondent from instituting proceedings in the Federal Court.[3][3] Barkla v Allianz Australia Insurance Limited [2018] FCA 2070 (Charlesworth J). These orders were made because the respondent has persistently and vexatiously litigated his view that the workers compensation insurer of his former employer failed to give him notice by way of a Form 3B pursuant to s 57A(3) of the Workers Compensation and Injury Management Act 1981 (WA) (now repealed) (the Form 3B issue). The respondent’s campaign over the Form 3B issue has brought him before the Court of Appeal of the Supreme Court of Western Australia on seven occasions. His attempt to obtain special leave to appeal after one of these hearings was refused by the High Court on the papers.[4][4] Barkla v Allianz Australia Insurance Limited [2015] HCASL 40 (Kiefel and Keane JJ).Disposition of the vexatious litigant application The vexatious litigant application in this case is a response to the respondent’s commencement of one proceeding against the applicant in the Adelaide Magistrates Court on 4 July 2019 (the Magistrates Court claim). That claim discloses no cause of action known to the law and is properly described as frivolous, vexatious or an abuse of the process of the Court within the meaning of r 193 of the Supreme Court Civil Rules 2006 (SA), now r 70.3 of the Uniform Civil Rules 2020 (SA). It is, therefore, liable to be struck out, dismissed or stayed, presumably with costs. However, the applicant elected not to take the conventional course of seeking relief in the Adelaide Magistrates Court. He came straight to this Court, relying on the vexatious litigant legislation. That is problematic because s 39 of the Supreme Court Act 1935 (SA) (the Act) cannot be invoked unless the respondent has “persistently instituted vexatious proceedings” in a court or tribunal of this State.