Jorgensen v Wilson
[2023] ACTCA 45
•30 November 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Jorgensen v Wilson |
Citation: | [2023] ACTCA 45 |
Hearing Date: | 19 June 2023 |
DecisionDate: | 30 November 2023 |
Before: | Curtin AJ |
Decision: | (1) I grant leave to the respondents nunc pro tunc to file the application in proceeding dated 14 June 2023 and, to the extent necessary, lift the stay imposed by s 67A of the Supreme Court Act 1933 (ACT) for the hearing and determination of that application. (2) The appeal is permanently stayed. (3) The appellant/respondent to the application is to pay the respondents/applicants to the application costs of the application. |
Catchwords: | APPEAL – Procedure – Vexatious litigant – whether appellant has been declared a vexatious litigant – whether appellant has right of appeal from declaration that he is a vexatious litigant – Section 67A of the Supreme Court Act 1933 (ACT) – whether an order declaring appellant a vexatious litigant is interlocutory or final – whether leave is required under s 67A to bring an application for leave to appeal – definition of “proceeding” – whether the filing of a notice of appeal is a “proceeding” – application stayed |
Legislation Cited: | Acts Interpretation Act 1954 (Qld), s 32A |
Cases Cited: | Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 |
Texts Cited: | DC Pearce and RS Geddes, Statutory Interpretation in Australia, LexisNexis Butterworths, 6th ed, 2006 |
Parties: | Alan Jorgensen ( Appellant) Cheryl Wilson ( First Respondent) Graham Ashworth (Second Respondent) Ailsa Wilson (Third Respondent) Graeme Donald (Fourth Respondent) |
Representation: | Counsel Self-represented ( Appellant) J R Clarke SC w/ T Kane ( Respondents) |
| Solicitors Self-represented ( Appellant) Ashurst ( Respondents) | |
File Number: | AC 15 of 2023 |
| Decision Under Appeal: | Court: ACT Supreme Court Before: Mossop J Date of Decision: 10 March 2023 Case Title: Jorgensen v Wilson (No 2) Citation: [2023] ACTSC 40 |
CURTIN AJ:
Introduction
The four central questions (three legal and one practical) with which this judgment is concerned are:
(1)Does a person declared to be a vexatious litigant under s 67A of the Supreme Court Act 1933 (ACT) (the SCA) have a right of appeal from such an order or is leave to appeal required?
(2)Alternatively, is an order declaring a person a vexatious litigant pursuant to s 67A of the SCA an interlocutory order (from which leave to appeal is ordinarily required) or a final order (from which a right of appeal generally exists but for question 1 above)?
(3)Whether a right of appeal exists, or whether leave to appeal is required, is it first necessary for a person who has been declared to be a vexatious litigant to seek and obtain leave pursuant to s 67A(5)(a) of the SCA before bringing an appeal or an application for leave to appeal?
(4)If leave is required pursuant to s 67A(5)(a) of the SCA in order to bring an application for leave to appeal, how are the two applications to be dealt with on a practical level?
For the reasons that follow, I am of the opinion that:
(1)A person declared to be a vexatious litigant under s 67A of the SCA does not have a right of appeal from that order.
(2)An order declaring a person to be a vexatious litigant is interlocutory in nature, and thus a litigant wishing to appeal such an order requires leave to appeal.
(3)Section 67A(5)(a) of the SCA requires an applicant to first obtain leave of the Court to bring an appeal (if I am wrong about (1) above) or an application for leave to appeal.
(4)Ordinarily, any application for leave under s 67A(5)(a) of the SCA to bring an application for leave to appeal may be heard at the same time as the application for leave to appeal itself (with the judge sitting concurrently as a judge of the Court pursuant to s 8 of the SCA and as the Court of Appeal constituted by a single judge pursuant to s 37J of the SCA).
For completeness I will also mention four other issues which arose in this case, and which may arise in other cases involving self-represented litigants.
First, in the associated judicial review proceedings (which I will describe later in this judgment, but which were heard concurrently with the application in this appeal with which this judgment is concerned) I made what is known in NSW as a Teoh direction. A Teoh direction (from Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324) is occasionally made when a litigant brings multiple proceedings or applications in a court each of which is substantially the same and each of which is dismissed. A Teoh direction prevents further (substantially similar) proceedings and applications being made. My judgment in the judicial review proceedings (see Jorgensen v The Supreme Court of the ACT (No 2) [2023] ACTSC 358) describes the matter more fully.
Second, whilst judgment was reserved in this appeal and in the judicial review proceedings, and after subsequent receipt of more than one uninvited email from Mr Jorgensen to my chambers and to other officers of the Court, I made orders in Chambers in both matters that no party was to communicate with my Chambers, nor the Chambers of any judge or registrar of this Court until judgment was delivered in these matters. The background and reasons for those orders, and the power and authority of the Court to make such orders, are set out in a separate judgment: see Jorgensen v The Supreme Court of the ACT [2023] ACTSC 357. A reader interested in the subject may also wish to refer to my judgment in Ezekiel-Hart v The Council of the Law Society of the ACT (No 5) [2023] ACTSC 218 where similar orders were made, and the authorities referred to.
Third, it bears remembering that a judge is not required to treat any application made by email (or other informal means) as an application in proceedings: see Central Coast Animal Care Facility Incorporated v Wyatt [2022] NSWSC 1373 at [155]-[157]; Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 at [11]; Magjarraj v Asteron Life Limited [2010] NSWCA 207 at [5]; The Estate of Alberto Magri [2022] NSWSC 873 at [32]; Ezekiel-Hart v The Council of the Law Society of the ACT (No 5) [2023] ACTSC 218 at [25]-[35]. Indeed, there are many disadvantages avoided by not accepting any application made by email (or other informal means) as an application in proceedings.
Fourth, whilst Mr Jorgensen has appeared by audio-visual link in this appeal and the judicial review proceedings up until the hearing of those matters on 19 June 2023, I have reservations about continuing that leave if there be future applications or proceedings brought by Mr Jorgensen. I have not heard from Mr Jorgensen on this matter, and of course I will keep an open mind on the issue until and if I am required to address it, but I simply wish to note at this point that there are considerations warranting not granting that leave. I note that in Turan Ahmed v Ziynet Ahmed [2022] NSWSC 921 Hammerschlag CJ in Eq refused an application by a self-represented litigant to himself conduct, that is without legal representation, proceedings instituted by him by audio-visual link in circumstances where serious allegations were made by that self-represented litigant. For the reasons given by Hammerschlag CJ in Eq, there is much to recommend requiring self-represented litigants to appear in person where they make serious allegations against other litigants.
Background
On 10 March 2023, Mossop J delivered judgment in Jorgensen v Wilson (No 2) [2023] ACTSC 40 (Wilson (No 2)) and most relevantly declared Mr Jorgensen to be a vexatious litigant.
His Honour made the following orders:
(1)The application for a further adjournment of the proceedings is refused.
(2)The proceedings are permanently stayed.
(3)The oral application by the plaintiff to discontinue the proceedings is dismissed.
(4)Declare pursuant to s 67A of the Supreme Court Act 1933 (ACT) that Mr Alan Bradley Jorgensen is a vexatious litigant.
(5)The plaintiff is to pay the defendants’ costs of the proceedings on a solicitor and client basis.
(6)Direct that any application by the defendant for a gross sum costs order may only be made within 28 days of the date of these orders.
The factual background relevant to those orders is set out in Wilson (No 2) and this judgment assumes familiarity with those facts.
One result of Order 4 above was that pursuant to the terms of s 67A(5)(a) of the SCA, Mr Jorgensen was prima facie prohibited from instituting or continuing any proceedings without the leave of the Court.
Mr Jorgensen desired to have Mossop J’s orders overturned and sought to do so in two ways.
First, on 11 April 2023 he filed a Notice of Appeal purporting to appeal from his Honour’s orders.
Second, on 14 April 2023 he filed an Originating Application seeking judicial review of those orders.
On 6 June 2023, both the appeal and the judicial review proceedings came before me for directions.
On that occasion, and subsequently, I was sitting as a single judge of the Supreme Court in dealing with the judicial review proceedings pursuant to s 8 of the SCA and concurrently sitting as the Court of Appeal constituted by a single judge in determining whether the Notice of Appeal should be dismissed pursuant to s 37J(1)(h) of the SCA.
When the matters came before me on 6 June 2023 it appeared to me that there were potential difficulties with both matters.
With the consent of Mr Jorgensen and the respondents to the appeal (who were granted leave to make submissions in the judicial review proceedings on the application heard by me on 19 June 2023) a regime was put in place so that those difficulties could be addressed and resolved at an early stage of both matters.
In the appeal and in accordance with that regime, the respondents filed an application in proceeding seeking the following orders:
(1)a permanent stay pursuant to s 67A(11) of the SCA;
(2)the determination of a separate question (being the second question described at [1(2)] above;
(3)in the alternative to the permanent stay, an order that the appeal be dismissed; and
(4)costs.
In the judicial review proceedings three separate questions were identified for determination. Those three questions are more comprehensively described in my judgment in those proceedings.
Both the respondents’ application referred to above, and the determination of the three separate questions in the judicial review proceedings, were listed for hearing before me at 2:00 pm on 19 June 2023.
In relation to that hearing date, I granted leave to Mr Jorgensen to appear by audio-visual link by reason of the fact he resides in the United States of America and because there were only 13 days between the directions hearing of 6 June 2023 and the hearing on 19 June 2023.
Directions had been made at the directions hearing on 6 June 2023 for the filing and service of written submissions for the hearing of the two matters on 19 June 2023. The respondents were directed to file and serve their written submissions by 12:00 pm on 13 June 2023, and Mr Jorgensen by 5:00 pm on 16 June 2023.
The respondents complied with those directions. Mr Jorgensen did not.
Pre-hearing adjournment application
On Saturday, 17 June 2023 at 8:32 am Mr Jorgensen emailed my Associate and the respondents seeking an adjournment of the hearing of the matters on Monday, 19 June. Mr Jorgensen’s email said (errors in original):
Dear Registrars and Ms McKean, unfortunately I must seek to adjourn next week's hearing for 7 days due to some serious family reasons i have encountered here in USA.
Without going into detail, my wife and 4 yo are not to be found, so I must focus all my attention on this worrying problem.
Hence really can.t avoid this adjournment and furthermore, I suspect it really doesn't prejudice the Respondents.
Ms McKean can i respectfully ask you to consent to this week or so, adjournment?
My Apologies to all
Thanks.
That email did not come to my attention until the morning of 19 June 2023. Mr Jorgensen and the respondents were informed by my Associate by email that morning that the request for an adjournment was refused but that Mr Jorgensen could, if he wished to do so, make another application for adjournment at the start of the hearing at 2:00 pm that day.
The hearing commenced at 2:00 pm on 19 June 2023. Mr Jorgensen did not appear at 2:00 pm but did appear by audio-visual link at about 2:13 pm and remained until the conclusion of the hearing of the matters that day at approximately 3:39 pm.
During the hearing Mr Jorgensen did not make any request for an adjournment of the hearing. Instead, he sought leave to file and serve written submissions within seven days of the conclusion of the hearing in relation to the issues to be determined in both matters.
That request was granted, with a direction that the respondents were to provide Mr Jorgensen with a copy of the transcript of the hearing of 19 June (which they did by email dated 20 June 2023) and a direction that Mr Jorgensen provide his written submissions before 5:00 pm on 27 June 2023, such submissions to be no longer than 15 pages.
During the hearing on 19 June, Mr Jorgensen did not appear to be in any apparent distress. Nothing in his physical appearance, oral delivery of submissions or the content of his oral submissions suggested that he was inhibited or detrimentally affected in any way with making his submissions.
Given those events, my reasons for declining the application for an adjournment made by email on the preceding Saturday morning may be shortly stated.
First, there was no supporting evidence provided with the email to support the assertions made.
Second, the assertion that Mr Jorgensen’s wife and child were “not to be found” was so vague and imprecise as to be essentially meaningless.
Third, Mr Jorgensen had previously applied for an adjournment of proceedings in this Court by email dated 20 February 2023 for similar reasons, namely that his “excitable de facto wife” had “run off somewhere” and he had “not much idea where”. His wife had evidently returned since that email which led me to think her present absence (if that was the case) was not the result of foul play.
Fourth, given his wife’s earlier return, the possibility existed that she would return again after Mr Jorgensen’s email of 17 June.
Fifth, Mr Jorgensen would have the opportunity on 19 June to provide more precision and detail, as well as relevant evidence if it existed, in relation to the assertion that his wife and child could not be found.
As it transpired, Mr Jorgensen was able to appear as detailed above and did not seek any adjournment of the hearings.
Jurisdiction and powers
My jurisdiction and power to hear and determine the respondents’ application in the appeal derive from the following.
Section 37J of the SCA provides that the Court of Appeal may be constituted by a single judge for hearing and deciding a number of identified matters (defined as ‘incidental matters’) in relation to an appeal including leave to appeal, dismissal of an appeal for any reason prescribed under the Rules or any other question of practice and procedure in the Court of Appeal.
Rule 5604 of the Court Procedure Rules 2006 (ACT) (the Rules) provides that the Court of Appeal may be constituted by a single judge in relation to hearing and deciding the dismissal of an appeal under that part for a number of reasons including that the appeal is incompetent or because the appellant had failed to comply with any relevant rules of Court or practice note.
Further to the SCA and the Rules, the Court of Appeal has inherent power to protect its processes and to avoid any abuse of process: Teoh v Hunters Hill Council (No 4) [2011] NSWCA 324.
It follows that I had power to determine the matters before me pursuant to s 37J(1)(h), (k) and (l) [the latter capturing matters incidental to the matter mentioned in (a), namely leave to appeal] together with the inherent power to protect the Court of Appeal’s processes. No party suggested otherwise.
The notice of appeal
Mr Jorgensen sought the following orders in his Notice of Appeal:
1. That the entire decision of Mossop J be set aside and the strike out action by the four defendants be dismissed.
2. In the alternative, the decision of Mossop J that the Appellant is a vexatious litigant, be set aside.
The grounds of appeal need not be traversed for the purposes of this judgment.
It is appropriate at this point to set out the terms of the central statutory provision which is the subject of this judgment, the most critical parts of which are the definition of “proceedings” in s 67A and the terms of s 67A(5)(a).
Section 67A of the Supreme Court Act
Section 67A of the Supreme Court Act 1933 (ACT) says:
67A Vexatious litigants
(1)In this section:
aggrieved person, in relation to proceedings, means a person aggrieved by the institution of those proceedings.
proceedings means any cause, matter, action, suit or proceeding of any other kind within the jurisdiction of any court or tribunal and includes any proceeding taken in connection with any such legal proceedings pending before any court or tribunal.
vexatious proceedings means proceedings—
(a)the purpose of which is to harass or annoy, to cause delay or for some other ulterior purpose; or
(b)that lack reasonable grounds.
(2)If, on the application of the Attorney-General or an aggrieved person, the court is satisfied that a person has frequently instituted vexatious proceedings, the court may declare the person to be a vexatious litigant.
(3)A declaration may be expressed to apply only in relation to a particular type of matter.
(4)A declaration may be expressed to be subject to the conditions the court considers appropriate.
(5)If a person is declared to be vexatious litigant—
(a)the person, or a person acting in concert with the person, shall not institute or continue any proceedings or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, without the leave of the court; and
(b)any proceedings pending at the time of the declaration or, for a declaration expressed to apply only in relation to a particular type of matter, proceedings of that type, are stayed subject to any order of the court in relation to those proceedings.
(6)If the court gives leave to a person for subsection (5) (a), it may impose the conditions it considers appropriate.
(7)Conditions imposed under subsection (6) in relation to proceedings may include conditions—
(a)relating to security for costs in the proceedings; and
(b) specifying matters relating to the issue of process in the proceedings.
(8)Unless expressed to remain in force until the end of a date specified in the declaration, a declaration remains in force until revoked by the court.
(9)The court may vary a declaration.
(10)Subject to any order of the court, an order making, varying or revoking a declaration is a notifiable instrument.
NoteA notifiable instrument must be notified under the Legislation Act.
(11)If proceedings are instituted by a person in contravention of this section, the proceedings shall be taken to have been permanently stayed.
(12)If practicable, any documents filed or lodged with a court or tribunal by a person in proceedings referred to in subsection (11) shall be returned to the person by the registrar or similar officer of a court or tribunal.
(13)Notwithstanding subsection (5), a person declared to be vexatious litigant may, without the leave of the court, apply to the court for the revocation or variation of the declaration or of any conditions to which the declaration is subject.
The Respondents’ Submissions
The respondents submitted that Mr Jorgensen had no right of appeal, but could only seek leave to appeal from (all of) Mossop J’s orders because:
(1)Mr Jorgensen had been declared a vexatious litigant and because of the terms of s 67A(5) of the SCA; or, alternatively,
(2)Mossop J’s orders were interlocutory and because of s 37E(4) of the SCA.
The respondents submitted that, having regard to analogous authorities in other jurisdictions (namely Victoria, Queensland and NSW), s 67A of the SCA would not “prevent an appeal” against a vexatious litigant declaration (if that were the only order appealed from) without leave. That is, if Order 4 were the only order appealed from, there was a right of appeal.
For the reasons given below, I do not accept that submission, primarily because the wording of the ACT provision is different to that of the analogous provisions in those other jurisdictions. I should note that perhaps my reasons and conclusions on this point should be read with a degree of caution because there was no active proponent or contradictor in relation to the view I ultimately took, and was therefore reached without the benefit of assistance from the parties.
The respondents’ primary submission was that because Mr Jorgensen had appealed all of Mossop J’s orders, the appeal was therefore instituted in contravention of s 67A(5) of the SCA and taken to be permanently stayed pursuant to s 67A(11).
The respondents also submitted that although s 67A(13) of the SCA provided that a person declared to be a vexatious litigant could apply to the Court (without leave) to revoke or vary the declaration, that sub-section did not capture an appeal. They submitted that an application to revoke or vary starts from the proposition that the declaration had been properly made, but that circumstances now existed (or were proved to have existed) that would justify a revocation or variation of the original declaration. I accept this submission.
Mr Jorgensen’s Submissions
I identified for Mr Jorgensen’s assistance and in general terms the two central matters at issue in relation to the appeal (described at [1(1) and (2)] above), both at the directions hearing on 6 June and again on 19 June: (T 19.24-.32).
The only discernible point I could identify from Mr Jorgensen’s oral submissions on 19 June was that it would be an injustice and a breach of natural justice to suggest that he would need to seek leave to appeal from Mossop J in relation to his Honour’s orders.
The simple answer to that submission is that an application for leave to appeal from one judge’s orders is always heard by a different judge. Otherwise, this submission did not address the legal issues to be decided.
Mr Jorgensen made a number of other oral submissions, but they were irrelevant to the issues to be decided. Mr Jorgensen was instead fixated on issues not before me (such as the merits of the original issues which were before Mossop J) and irrelevant submissions such as:
… the law being based on fairness, of course you’ve got an absolute unfettered right to challenge the vexatious litigant proceeding and related matters like the judicial review, because that’s just the way justice is.
You can’t be shut out by the Australian constitution. You’re allowed to sue people …
I encouraged Mr Jorgensen on no less than eleven occasions at the hearing to direct himself to the narrow legal issues I had to determine. That encouragement did not bear fruit.
In accordance with my directions that day for Mr Jorgensen to supply subsequent written submissions, he supplied submissions by two emails both dated 27 June 2023, and one nine-page attachment headed “WRITTEN SUBMISSIONS RE DIRECTIONS HEARING 19th JUNE 2023”.
His written submissions (covering both the appeal and the judicial review proceedings) did not address the substance of the matters I had to decide.
The first-received email said (errors original):
Dear All, It is obvious to everyone who is over age 16, that Mossop J was only ever interested in one thing, and that was for ASIC to proceed funding Ashurst for the 4 Defendants and to use these 4 to set up an artificial scenario for Mossop J to then be in a position to Declare me to be a Vexatious Litigant. So the Vexatious Litigant Decision must be first determined.
That contrived set-up which was a blatant miscarriage of justice, was engineered by Mossop J, so as to protect ASIC and its Chairman, Joe Longo from being brought to Justice for Obstructing Justice and where Joe Longo incited Tasmanian Regional Commissionaire, Simon Dwyer to Reverse his Guilty Finding in his serious Investigation on the ASIC Officers, Graham Ashworth and Glen Cook.
Mossop J failed as a Judge to take into account that the 4 Defendants all admitted to my serious Allegations, since they failed to deny a single word them which Equals an Admission in law.
Anyway, because Curtin J is Mossop J’s colleague and no doubt spends much time with him every day, then the Judicial Review is just a farce and just a waste of time, so may as well be Discontinued against Mossop J.
In Discontinuing, I need no Leave from Mossop J or Curtin J, or anyone else.
So I hereby Discontinue the Judicial Review ACT 15/2023 which is my right, since Mossop J the sole Respondent, has not filed a Defence nor any submissions.
And because the 4 Defendants are not involved in the Judicial Review, then of course there are no adverse costs orders to be considered in their favour.
Afterall, the Judicial Review was none of their business.
At least this Discontinuance simplifies the issues that Curtin J has to preside over, where Curtin J can focus on the Vexatious Litigant issue, which is a first for the ACT Supreme Court and where there’s been no test of the “virgin” Vexatious Litigant rules in the ACT Supreme Court.
So seems to me the Interstate tested slightly, Vexatious Litigant Rules need to be relied on which was the Respondents’ lawyers view point also.
My view is that the Australian Constitution and the HCA are super clear that every Australian Citizen has the unfettered right to sue.
And only a blatant abuse of a litigant prosecuting the same person or party with a case devoid of merit, can cause a person to
forfeit that sacred right to sue against that particular person in that specific state only.
But is free to sue any other party in that state and any person in Australia out of that state.
And in that case, only an Application by the Respondent being sued, or the Attorney General can cause such a Vexatious Litigant Application, not the Court itself.
Of course the Court or Registry has zero basis to impose its own will on a potential vexatious litigant and then it wants to sit and rule on its own Application.
Such a perverse situation is happening in this Court in another matter my 18 yo son, Jesse James is involved in which has nothing to do with these 4 Defendants, and is simply wishful thinking by the Registry, to step in and block that Litigant.
Which shows one and all that this ACT SC has no business abusing their powers.
Mossop J who has never ever had any experience in Vexatious Litigation thinks he can declare any person a Vexatious Litigant and that decision extends to all other parties in ACT.
And such a miscarriage of justice by Mossop J where he has blatantly breached his Judicial Oath requires the experience of a 3 Judge Court of Appeal and certainly not a mate, a single Judge, such as Curtin J.
Curtin J has already declared that he agreed with the 4 Defendants Submissions in the 10 minutes I was late appearing last Friday due to the Password for the Webex meeting not working and where I from the USA, had sought a 7 day Adjournment due to a potential Family suicide involving 2 children too, on that very day, which was a shockingly heartless decision, and which live suicide note I had copied to Partner at Ashurst, Ms McKean.
So Mr Gaffney this farcical case involving Mossop J and Curtin J will likely be left for the HCA to Correct.
In summary, the Judicial Review is being Discontinued and Appeal left to run where only the matters relating to proving against Mossop J’s scandalous Vexatious Litigant decision will be proceeded with and all other matters decided once the Vexatious Litigant Decision is determined.
The second-received email said (errors original):
See attached my Amended Notice of Appeal which reflects that the Issue concerning the Vexatious Litigation decision by Mossop J, has to be heard and determined first, because the Respondents & Curtin J, all decided in my absence for the first 10 minutes, on 19th June, that the Provisions of the Vexatious Litigants legislation was such that the nominated Vexatious Litigant is prevented from issuing any Appeal or Judicial Review because he is deemed a Vexatious Litigant.
That is totally wrong because any deemed Vexatious Litigant has a natural right to Appeal that Decision.
To say otherwise, flies in the face of an accused person having the right to Appeal under the Australian Constitution.
To argue that is a travesty of Justice and contravenes the right to Natural Justice.
So the Pivotal Point of the Appeal, against Mossop J’s Vexatious Litigant Decision must be determined first then the rest of the Appeal be heard on another date.
It should be noted that the Appellant’s Email today to Ashurst’s Thomas Gaffney and to the Judges Associates of Mossop J and Curtin J should be read in conjunction with these Submissions.
It is expected by the Appellant that his Appeal will in the interests of Justice be determined by 3 Appeal Judges not just 1, in accordance with National State and Federal law.
After this next step of considering the Appeal being heard by 3 Appeal Judges and Hearing the Vexatious Litigant matter first, then the Appellant is seeking that these be heard on different dates.
The nine-page “WRITTEN SUBMISSIONS RE DIRECTIONS HEARING 19th JUNE 2023” (which included pages seemingly intended to constitute an Amended Notice of Appeal as referred to in the second email):
(1)recounted many irrelevant matters such as the merits of the matters determined by Mossop J; and
(2)submitted that I must recuse myself on the ground of bias.
From the two emails it appears that in relation to the substance of the matters I had to decide Mr Jorgensen:
(1)relied on the authorities from other jurisdictions (broadly speaking, being those I will refer to below) for the proposition that there was a right of appeal from Mossop J’s orders;
(2)submitted that the Australian Constitution and the High Court were clear that every Australian citizen has the unfettered right to sue; and
(3)made a number of irrelevant submissions concerning natural justice and irrelevant requests about having his matters heard by the Court of Appeal constituted by three judges.
I will come to the first of those three matters shortly but shall not take up any time with the irrelevancies referred to in (3) above.
Before coming to the first matter, it is useful to immediately address the second matter set out above, followed by the submission that I recuse myself.
The Constitution
Mr Jorgensen did not identify any clause in the Constitution or any High Court authority which says or holds that every Australian citizen has the unfettered right to sue.
I am unaware of any clause in the Constitution or High Court authority (or any other authority) which supports Mr Jorgensen’s submission.
Such a submission is inconsistent with the Court’s inherent jurisdiction to prevent the abuse of the Court’s processes.
Further, I note that in Tyne v UBS AG (No 3) [2016] FCA 5 Greenwood J disagreed with a similar proposition. His Honour said at [423]:
More fundamentally, as a matter of principle, the trustee of the Argot Trust does not have an unqualified and absolute right to a trial of its claims on the merits, regardless of any other considerations. It has, without any doubt, a right to an opportunity to have a hearing on the merits on which it can present evidence and arguments to establish the factual foundation for its claims and the legal framework within which those claims are to be made good.
In the appeal to the High Court in that case, UBS AG v Tyne as Trustee of the Argot Trust (2018) 265 CLR 77 Kiefel CJ, Bell and Keane JJ referred to a number of fetters on a party’s right to sue at [38]-[41]. For example, a party does not have an unfettered right to amend his her or its pleadings, but rather only has “... a sufficient opportunity to identify the issues that they seek to agitate …”.
Put another way, parties do not have unfettered rights to sue or unfettered rights to access the processes of courts. Both are subject to restraint in appropriate circumstances so as to, ultimately, prevent or minimise the harm caused to other litigants because the hearing of their cases has been delayed by judges having to deal with vexatious proceedings as defined in s 67A of the SCA or claims of the type dealt with in Teoh (taking but two examples).
Subsequent to reserving judgment in this matter the NSW Court of Appeal handed down its decision in Collier v Attorney General (NSW) [2023] NSWCA 273, a vexatious proceedings case. In that case the Court of Appeal recognised that access to courts was a fundamental legal liberty, but nevertheless one which was capable of restriction in appropriate circumstances: see at [61]-[62].
Recusal
As best I understand it, Mr Jorgensen submitted that I was biased because:
(1)I “wrongly stated” in Mr Jorgensen’s absence that Mossop J’s Order 4 prevented Mr Jorgensen from appealing the “vexatious order”;
(2)a judge is there to adjudicate between the parties, not act as a prosecutor and throw up his own views of the case; and
(3)I had already made up my mind.
I assume Mr Jorgensen’s submission was based on actual bias, but I will touch on facts relevant to apprehended bias for completeness.
The first of those three matters (and particularly Mr Jorgensen’s ‘absence’) is connected with the third last paragraph of Mr Jorgensen’s first-received email quoted at [59] above.
The submission is wrong and also indicates that Mr Jorgensen is not a reliable historian.
First, and as the transcript shows, no substantive aspect of the appeal matter was discussed with the respondents prior to Mr Jorgensen joining the hearing. What was discussed in the 13 or so minutes of Mr Jorgensen’s absence were various issues concerning the judicial review proceedings.
In relation to those, in the absence of any prior written submissions from Mr Jorgensen (which he had been directed to file and serve) and during the 13 or so minutes when he had failed to appear (without any email communication from him that he was having difficulty using the audio-visual link or to otherwise explain his absence or seek some indulgence until he could activate the link), I had said to the respondents’ senior counsel things such as (T 4.1):
You have submitted that they do fall within the definition of 'proceedings'. I can't see any reason why they do not …
(Emphasis added)
And (T 4.45 ff):
I've read your submissions, thank you. I can't see why your submissions are not correct. And I note Mr Jorgensen has not in writing or orally today provided any reason why that may be incorrect. Noting that I'd raised that issue together with the other two with him on 6 June 2023.
(Emphasis added)
After Mr Jorgensen joined the hearing, I explained what had transpired and said in relation to the issues to be decided in the judicial review proceedings (T 8.4 ff):
I haven't decided, Mr Jorgensen. What I had indicated is that I had, in the absence of anything from you and on the basis of my own looking at the issues and the – Mr Clark and Mr Kane's submissions, I couldn't see why their submissions were incorrect. Now, of course, that was always subject to you making submissions to the contrary, and I am inviting you today and inviting you in the next seven days to put something in writing – so you have two opportunities – to put your submissions on those issues.
(Emphasis added)
Second, and as the transcript confirms, no “potential Family suicide involving 2 children” was mentioned by Mr Jorgensen on 19 June 2023 (or any other time), nor was any “suicide note” referred to or tendered. Indeed, and as the transcript confirms, Mr Jorgensen proceeded to make his submissions with no apparent visual, oral or cognitive signs of emotional impairment or distress.
Third, Mr Jorgensen did not seek an adjournment of the hearing. What Mr Jorgensen sought and obtained was a further seven days to supply written submissions. After mentioning a seven-day adjournment the following exchange took place (T 7.12-.27):
HIS HONOUR: What are you asking for, Mr Jorgensen? Mr Jorgensen, what are you asking for?
MR JORGENSEN: Well, I am asking for the court to understand my situation, firstly, and therefore - - -
HIS HONOUR: No, no. Are you making an application?
MR JORGENSEN: Yes. Well, I am actually and I think that was what was in the - - -
HIS HONOUR: What is your application?
MR JORGENSEN: The application was that I be given seven days to submit those submissions, and not only submit them but digest the full extent of the defendant's allegations or application to strike out.
Thereafter, oral submissions were taken on the judicial review proceedings.
When those had been completed, I directed the parties to commence their submissions on the respondents’ application in the appeal (T 19.15).
Shortly after I did so, Mr Jorgensen again requested seven days to put on written submissions but at no point did he request any adjournment of the hearing. That is borne out by the following exchange at T 20.16-.31:
MR JORGENSEN: … But leaving that aside, I want to say that the same reasons I said at the first is that I am not going to compete my layman wits against the senior counsel and his junior, and indeed your Honour, in five minutes when I have had to come through this ordeal this week. So I would say that I want seven days, the same as you have already said, to lodge submissions and therefore – and the same in the first three instances. Those - - -
HIS HONOUR: Can I tell you, Mr - - -
MR JORGENSEN: - - - off-the-cuff - - -
HIS HONOUR: Can I tell you, Mr Jorgensen, I will give you those seven days, the same as in the other case, to put in any written submissions after today.
MR JORGENSEN: Well, I appreciate that, your Honour. …
As indicated, Mr Jorgensen’s two emails and the attachment referred to above were the result.
Mr Jorgensen’s next point, namely that I had “wrongly stated” that Mr Jorgensen could not appeal is factually incorrect. It is true that I raised that at the directions hearing on 6 June as a possible outcome because of the wording of s 67A of the SCA, hence the hearing on 19 June 2023 to determine that and other issues. But at no time did I express (or hold) any concluded view.
Mr Jorgensen’s next submission was that judges are there to decide cases and not express their own views on cases. That submission is wrong in relation to issues of statutory construction.
Where statutory construction is concerned (as it is here) any conclusions as to the meaning of a statute affect parties other than the parties to the dispute, and so a judge is not bound to confine his or her consideration to the competing (and sometimes non-competing) interpretations advanced by those parties: see Trust Co of Australia Ltd v The Valuer-General [2007] NSWCA 181 at [11] (per Campbell JA, Beazley and Ipp JJA agreeing); Accident Towing and Advisory Committee v Combined Motor Industries Pty Ltd [1987] VR 529 at 547; Tucci v VCAT [2010] VSC 425; (2010) 33 VAR 206 at [16]; Woodcrest Homes Pty Ltd v Fair Trading Tribunal [2002] NSWSC 552 at [33].
Mr Jorgensen’s final point was that I had already made up my mind.
Not only was this incorrect, but there was nothing said or done which may have caused a fair-minded lay observer, properly informed as to the nature of the proceedings and the matters in issue to reasonably apprehend that I might not bring an impartial and unprejudiced mind to the resolution of the question I was required to decide. Mr Jorgensen did not identify any things I had said or done, nor did he seek to link those to the requirements of the double might test set out in Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337.
Obviously, it would be easier for me to simply recuse myself, but this would be a failure to exercise my judicial function and would only provide Mr Jorgensen with that which I perceive he seeks: namely a prolongation of his litigation in the Court.
I dismiss the application to recuse myself.
The ACT Legislation
I have set out the terms of s 67A of the SCA above.
One critical question in this application is whether an appeal, commenced by the filing of a Notice of Appeal, falls within the definition of “proceedings” in s 67A.
This question has arisen in other jurisdictions which have similar, but not identical legislation, concerning vexatious litigants.
I will come to those other jurisdictions shortly, but the question posed here, more expansively stated and using the wording of s 67A, is whether the institution of an appeal which seeks to challenge the correctness or the validity of the decision to declare the appellant a vexatious litigant amounts to the institution or continuation of any proceedings, “proceedings” being defined as any cause, matter, action, suit or proceeding of any other kind within the jurisdiction of the Court including any proceeding taken in connection with any such legal proceedings pending before the Court.
The answer to that question is provided by determining the proper construction of s 67A.
The principles of statutory construction
In Civil & Civic Corporation Pty Ltd v Nova Builders Pty Ltd [2023] ACTCA 30, I summarised several general principles of statutory construction as I understood them. I said:
101. The process of statutory construction begins and ends with the words of the statute. That oft-repeated mantra does not prescribe a rigid order of analysis. Rather, it serves to emphasise the primacy of the words used in the statute.
102. Context must be considered in the first instance. In CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Brennan CJ, Dawson, Toohey and Gummow JJ, Gaudron J agreeing, said at 408:
Moreover, the modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses "context" in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy.
(Footnote omitted.)
103. In Commissioner of Taxation v Jayasinghe [2016] FCAFC 79; 247 FCR 40 Allsop CJ said at [7] that that passage from CIC had been cited too often to be doubted and cited 15 joint or single judgments of the High Court in support of that proposition.
104. With that said, the primacy of the words used in the statute and the process of statutory construction was described in the joint judgment of French CJ, Hayne, Crennan, Bell and Gageler JJ in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39] wherein their Honours said:
This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the [statutory] text”. So must the task of statutory construction end. The statutory text must be considered in its context. That context includes legislative history and extrinsic materials. Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text. Legislative history and extrinsic materials cannot displace the meaning of the statutory text. Nor is their examination an end in itself.
(Footnote omitted.)
105. The first sentence of the quote which appears immediately above is a quote from the joint judgment of Hayne, Heydon, Crennan and Kiefel JJ (as her Honour then was) in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; 239 CLR 27 at [47] wherein their Honours said:
This court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself. Historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text. The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.
(Footnotes omitted.)
106. I should add, for completeness, that in the ACT s 140 of the Legislation Act 2001 (ACT) requires that in working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole, and s 139 requires that the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
In that regard it must be remembered that the proper construction of statutes begins and ends with the words of the statute. Accordingly, the authorities from other jurisdictions are of limited assistance given the vexatious litigant legislation in the ACT is different from that considered in those other jurisdictions. However, it is useful to consider them and the various considerations that arise from them. It is also useful to consider them in relation to the issue described at [1(2)] above, namely whether Mossop’s J’s orders were interlocutory.
Suffice to say I consider the ACT legislation to be different to the legislation in the other jurisdictions considered and have come to a different conclusion in this case than was reached in the authorities in those other jurisdictions. I shall, where appropriate, highlight the important differences below when referencing the legislation in the other jurisdictions.
As many of the cases considered below also consider the question whether an order declaring a person a vexatious litigant (or an analogue order) was interlocutory or final, and some examine whether an appeal is a ‘proceeding’, it will ease the comprehension of this judgment to note those matters at the same time any particular authority is mentioned.
Victoria
In Victoria, and prior to 2014, the relevant statutory provisions relating to vexatious litigants were ss 17 and 21 of the Supreme Court Act 1986 (Vic) (the SCV).
Section 21(2)-(5) said:
(1) …
(2) The Court may, after hearing or giving the person an opportunity to be heard, make an order declaring the person to be a vexatious litigant if it is satisfied that the person has—
(a) habitually; and
(b) persistently; and
(c) without any reasonable ground—
instituted vexatious legal proceedings (whether civil or criminal) in the Court, an inferior court or a tribunal against the same person or different persons.
(3) An order under subsection (2) may provide that the vexatious litigant must not without leave of—
(a) the Court; or
(b) an inferior court; or
(c) a tribunal constituted or presided over by a person who is an Australian lawyer—
do the following—
(d) continue any legal proceedings (whether civil or criminal) in the Court, inferior court or tribunal; or
(e) commence any legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal; or
(f) commence any specified type of legal proceedings (whether civil or criminal) in the Court or any specified inferior court or tribunal.
(4) Leave must not be given unless the Court, or if the order under subsection (2) so provides, the inferior court or tribunal is satisfied that the proceedings are not or will not be an abuse of the process of the Court, inferior court or tribunal.
(5) The Court may at any time vary, set aside or revoke an order made under subsection (2) if it considers it proper to do so.
Section 17 of the SVC concerned appeals. Section 17(2) said:
Unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a Judge of the Court.
Section 17 of the SCV is different from the analogue provision in the ACT, namely s 37E(2)(a) of the SCA. That section says:
(2) The following matters may be brought before, and heard by, the Court of Appeal:
(a) appeals in relation to orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);
…
The relevant difference, of course, is that s 17 of the SVC includes the words “(u)nless otherwise expressly provided by this or any other Act”, words which are not found in s 37E(2)(a) of the SCA.
In Kay v Attorney-General [2000] VSCA 176 Chernov JA, with whom Ormiston and Batt JJA agreed, held that provided it was properly constituted, an appeal on the merits lay to the Court of Appeal from an order declaring a person to be a vexatious litigant. That was because s 21 of the SCV did not fall within the words “otherwise expressly provided” in s 17.
Chernov JA reasoned as follows:
[20] In my opinion Mr Robins was correct in his concession that, provided it is properly constituted, an appeal on the merits lies to this court under s 17(2) of the Act from an order declaring a person to be a vexatious litigant. The subsection provides that a right of appeal lies to this court from any determination of the Trial Division constituted by a judge “[u]nless otherwise expressly provided”. On one view, s 21(5) … is exhaustive of the rights of the vexatious litigant to challenge the order made against him or her under s 21(2). The thesis underlying this argument would be that this right, which may be exercised “at any time”, reflects the intention of the legislature to exclude appeals to this court from the original order. In other words, it was said that subs (5) expressly provides “otherwise” for the purpose of the exceptive words in s 17(2) of the Act. It was not suggested that there was any other provision of the Act or of any other Act which fell within those words. Thus the only question is, does s 21(5) fall within the words of s 17(2) “otherwise expressly provided”.
[21] … Thus, for present purposes the particular question is: does s 21(5) exclude, expressly or by necessary implication, an appeal from a determination made pursuant to s 21(2)? In my opinion, for reasons which I set out briefly below, the answer to that question is, no.
[22] It is obvious that s 21(5) does not expressly state that no appeal shall lie to this court from an order made pursuant to s 21(2). Similarly, in my view, it cannot be said that the subsection excludes such appeals by necessary implication. There is nothing in the wording of the subsection which gives rise to such an inference. Thus, there is no inconsistency or overlap between the two provisions; each deals with proceedings of a different character. .... In my view, s 21(5) does not take away the right given by s 17(2) to appeal against the determination of a judge under s 21.
…
[25] Thus, in my opinion, s 21(5) does not evince an intention to exclude from the operation of s 17(2) a decision made by a judge pursuant to s 21(2). There being no other provision that arguably provides “otherwise” for the purposes of s 17(2), it follows that an appeal brought against such a decision, provided it was properly instituted, would be a competent appeal.
Chernov JA went on to consider (at [26]-[30]) whether leave to appeal was required because of the terms of the primary judge’s order (as distinct from the operation of the statutory provision as occurs in the ACT). The terms of the order included that the applicant must not, without leave of the court, continue or commence legal proceedings in, inter alia, “this Court”.
No such order was made by Mossop J in this case and so this aspect of Kay need not be considered. But it should be observed that s 17(3) of the SCV provides that, if the application is granted, an order is made prohibiting continuing or commencing proceedings, whereas under s 67A of the SCA, all a judge does is make a declaration that the person is a vexatious litigant (perhaps subject to the conditions as referred to in s 67A(3) and (4)), and thereafter it is the operation of s 67A(5) which prohibits the institution or continuation of proceedings.
Chernov JA also held that the vexatious proceedings order was interlocutory not final (at [40]) essentially because the order did not finally determine the parties’ rights as the parties could seek to have the order varied, set aside or revoked (see at [36]).
At [41] and following, Chernov JA considered whether leave to appeal should be granted applying the usual principles in Victoria, namely whether the decision in question was attended with sufficient doubt to warrant the grant of leave and whether substantial injustice would result from a refusal.
In the event, Chernov JA held that the applicant had failed to make out that the primary judge’s decision was attended with sufficient doubt as to warrant granting leave to appeal.
In summary therefore, Kay held that s 17 of the SCV provided for a merits appeal to the Court of Appeal if the appeal was properly instituted, that leave to appeal was required because the vexatious order was interlocutory, and that the usual principles for seeking leave to appeal applied.
In Clemens v Phillip Morris Ltd [2008] VSCA 48 the Court of Appeal considered a different but related point. That was, where leave was granted to a vexatious litigant to commence proceedings in which he or she subsequently failed, leave was required under s 21(4) of the SCV to initiate an appeal against that decision, even in a case where an appeal normally lay as of right. This decision held that the commencement of an appeal was the commencement of a proceeding.
Maxwell P and Neave JA in Clemens held at [8]:
The commencement of an appeal to this Court from a decision of the County Court is, on any view, the commencement of a proceeding in the Court. Mr Clemens wishes to invoke the appellate jurisdiction of the Supreme Court as conferred by s 74 of the County Court Act, and he wishes to do so by filing the requisite originating process, being a notice of appeal. The same view has been adopted in other jurisdictions in like contexts.
(Footnotes omitted)
The authorities cited in support of the last sentence of that quote were: Re Vernazza [1960] 1 QB 197 at 209–210 (Ormerod LJ), 215 (Willmer LJ); Hunters Hill Municipal Council v Pedler [1976] 1 NSWLR 478 at 488F (Yeldham J); Jones v Skyring (1992) 66 ALJR 810 at 814 (Toohey J); Ramsey v Skyring (1999) 164 ALR 378 at 391 [59] (Sackville J); Tsekouras v Olsen [2007] NSWSC 556, [29] (Bryson AJ); Kay v Attorney-General (2000) 2 VR 436 at 446 [27] (Chernov JA); and Attorney-General for the State of Victoria v Weston [2004] VSC 314, [13] (Whelan J).
In 2014 the Vexatious Proceedings Act 2014 (Vic) (the VPV) commenced from which time vexatious litigants were dealt with under that statute rather than the SCV. It is a substantial statute and provides for a variety of different orders such as limited litigation restraint orders, extended litigation restraint orders, general litigation restraint orders, acting in concert orders and appeal restriction orders.
A general litigation restraint order is the analogue of the purported effect of s 67A(5) of the SCA. Section 30 of the VPV says:
30 General litigation restraint order
(1) A general litigation restraint order made against a person may direct that the person must not do either or both of the following for the period specified by the Supreme Court—
(a) continue any proceeding in a Victorian court or tribunal without leave of—
(i) the Supreme Court; or
(ii) the Victorian court or tribunal in which the proceeding is being heard;
(b) commence any proceeding in a Victorian court or tribunal without leave of—
(i) the Supreme Court; or
(ii) the Victorian court or tribunal in which the proceeding is to be commenced.
Section 3 of the VPV provides that extended litigation restraint orders, general litigation restraint orders and limited litigation restraint orders are collectively defined as “litigation restraint orders”.
Part 10 of the VPV provides for appeals in relation to litigation restraint orders. Section 79 provides that the only expressed avenue of appeal for a person against whom a litigation restraint order was made is to seek leave to appeal from such an order on a question of law.
Thus, at least in terms of appeal rights, the Victorian Parliament determined that someone against whom a general litigation restraint order had been made may only seek leave to appeal from such an order (and has no right of appeal) and may only do so on a question of law: see Murch v Annesley [2021] VSCA 83.
It is perhaps noteworthy that the VPV provides in s 84 that any such application for leave to appeal is conducted on the basis of written submissions, without the appearance of the parties unless the court considers that there are exceptional circumstances and that it is appropriate to conduct an oral hearing having regard to the interests of justice.
Queensland
In Queensland, the relevant statute is the Vexatious Proceedings Act 2005 (Qld) (the VPQ).
The relevant provisions of the VPQ say:
6 Making vexatious proceedings orders
(1) This section applies if the Court is satisfied that a person is—
(a) a person who has frequently instituted or conducted vexatious proceedings in Australia; or …
(2) The Court may make any or all of the following orders—
(a) an order staying all or part of any proceeding in Queensland already instituted by the person;
(b) an order prohibiting the person from instituting proceedings, or proceedings of a particular type, in Queensland; …
7-9 …
10 Vexatious proceedings order prohibiting institution of proceedings
(1) If the Court makes a vexatious proceedings order prohibiting a person from instituting proceedings, or proceedings of a particular type, in Queensland—
(a) the person may not institute proceedings, or proceedings of the particular type, in Queensland without the leave of the Court under section 13; …
(2) If a proceeding is instituted in contravention of subsection (1), the proceeding is permanently stayed.
11 Application for leave to institute a proceeding
(1) This section applies to a person (the applicant) who is—
(a) subject to a vexatious proceedings order prohibiting the person from instituting proceedings, or proceedings of a particular type, in Queensland; …
(2) The applicant may apply to the Court for leave to institute a proceeding that is subject to the order.
(3) The applicant must file an affidavit with the application that—
(a) lists all occasions on which the applicant has applied for leave under—
(i) this section; or
(ii) before the commencement of this section, the Vexatious Litigants Act 1981, section 8 or 9; and
(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section; and
(c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
(4) …
(5) The Court may dispose of the application by—
(a) dismissing the application under section 12; or
(b) granting the application under section 13.
(6) The applicant may not appeal from a decision disposing of the application.
In Conde v Gilfoyle & Anor [2010] QCA 109, the primary judge had ordered that certain, identified proceedings be stayed and that, pursuant to s 6(2)(b) of the VPQ, Mr Conde was prohibited from instituting any proceeding (within the meaning of that word in the definition of “proceeding” in the VPQ) in a court or tribunal of the State of Queensland without prior leave of a judge of the Supreme Court of Queensland (Order 3).
On appeal it was argued that the appeal brought by Mr Conde was incompetent because Order 3 prohibited an appeal without leave first being granted as required by the Order.
Fraser JA, with McMurdo P and Peter Lyons J agreeing, rejected that submission on the basis that s 69 of the Supreme Court of Queensland Act 1991 (Qld) (the SCQ) provided that, subject to that and any other Act, an appeal lay to the Court of Appeal from any judgment or order of the Supreme Court in the Trial Division. Fraser JA held that the VPQ did not exclude that right of appeal.
Fraser JA reasoned to that conclusion by holding that the word “proceeding” in s 6(2) of the VPQ did not include an appeal from the very proceedings in which the s 6(2)(b) order was made.
The basis for Fraser JA’s reasoning included the important view that s 32A of the Acts Interpretation Act 1954 (Qld) conferred a more flexible approach to interpretation than would be required under other interpretative provisions in other jurisdictions.
In coming to those conclusions Fraser JA considered, at [23], that the “quite stringent requirements” set out in s 11 of the VPQ for an application for leave to institute a proceeding and the express statutory prohibition against an appeal from a dismissal of such an application [see s 11(6)] were of “particular significance”.
There are no equivalent “requirements” in s 67A of the SCA for the seeking of leave to commence proceedings under s 67A(5) of the SCA.
Fraser JA also thought the difference between the general words of s 6(2)(b) of the VPQ (prohibiting the person from instituting proceedings) and the plain terms of s 11(6) excluding a right of appeal was significant. His Honour concluded that that “marked contrast” strongly suggested s 6(2)(b) did not empower orders immunising those very orders against appeal.
In the ACT, there is no equivalent statutory provision to s 11(6) of the VPQ. There is no provision in the SCA prohibiting any party from seeking leave to appeal from a decision by a judge of this Court granting or refusing to grant leave to a vexatious litigant to institute or continue proceedings pursuant to s 67A(5)(a).
New South Wales
Prior to 2008 the relevant statutory provision concerning vexatious litigants was s 84(1) of the Supreme Court Act 1970 (NSW) (the SCNSW). That section said:
(1) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without reasonable ground institutes vexatious legal proceedings, whether in the Court or in any inferior court, and whether against the same person or against different persons, the Court may, on the application of the Attorney General, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings in any court and that any legal proceedings instituted by the vexatious litigant in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.
(2) Where any person (in this subsection called the vexatious litigant) habitually and persistently and without reasonable ground institutes vexatious legal proceedings against any person (in this subsection called the person aggrieved), whether in the Court or in any inferior court, the Court may, on the application by the person aggrieved, order that the vexatious litigant shall not, without leave of the Court, institute any legal proceedings against the person aggrieved in any court and that any legal proceedings instituted by the vexatious litigant against the person aggrieved in any court before the making of the order shall not be continued by the vexatious litigant without leave of the Court.
(3) The Court may from time to time rescind or vary any order made by it under subsection (1) or subsection (2).
(4) Where the Court has made an order under subsection (1) or subsection (2) against any person, the Court shall not give that person leave to institute or continue any proceedings unless the Court is satisfied that the proceedings are not an abuse of process and that there is a prima facie ground for the proceedings.
In Klewer v Attorney General (NSW) [2010] NSWCA 219 the Court of Appeal had before it an appeal from an order made under that section (and which survived pursuant to the transitional provisions of the Vexatious Proceedings Act 2008 (NSW) (the VPNSW) which repealed s 84).
Without finally deciding the point the Court indicated that there was a substantial body of authority which favoured the view that a vexatious proceedings order was interlocutory, not final. The Court in Klewer said:
[13] A substantial body of authority holds that an order of the kind that can be made under s 84(1) of the Supreme Court Act or under s 8 of the VP Act is interlocutory. If that authority applies in New South Wales a person subject to such an order requires leave to appeal to the Court of Appeal, pursuant to s 101(2)(e) of the Supreme Court Act.
[14] The reasoning adopted in the cases is that if an order in the nature of a vexatious proceedings order can be varied or set aside (as was provided by the repealed s 84(3) of the Supreme Court Act and is now provided by s 9 of the VP Act), the order does not finally determine the rights of the parties and is therefore interlocutory and not final: Attorney General (NSW) v Spautz [2000] NSWSC 45, at [10][11], per Brownie AJ; Kay v Attorney-General [2000] VSCA 176; 2 VR 436, at 447-451 [31]-[40], per Chernov JA (with whom Ormiston and Batt JJA agreed); Shaw v McGinty (Attorney-General) [2006] WASCA 231, at [18], per Wheeler JA (with whom Steytler P and Buss JA agreed).
At the hearing before the Court the Attorney General had submitted that leave to appeal was required, and that leave under the VPNSW was first required in order to file the application for leave to appeal.
Subsequently the Attorney General withdrew this submission and the Court said at [27]:
Since the Attorney General has withdrawn his earlier submissions, it is appropriate to proceed on the basis, without finally deciding the issue, that the applicant does not require leave under s 14(2) of the VP Act to file a summons seeking leave to appeal from the Relevant Orders. Further reasons for adopting that course are that none of the cases referred to by counsel involve the VP Act, a final decision of the issue would require an analysis of NSW legislation that bears upon the topic, and the submissions made to us do not attempt that analysis. As well, there is an aspect of the decision in Kay v A-G at [28] that has been commented on in Shaw v McGinty at [14] and may require further consideration.
In the event, the Court held at [23] that leave to appeal was needed because either the order appealed from was interlocutory, or, if it was not, the case did not involve a matter in issue of the value of $100,000 or more as required by s 101(2)(r) of the SCNSW.
Since 2008 the relevant statutory provisions concerning vexatious litigants has been governed by the VPNSW.
Section 4 of the VPNSW defines “proceedings”. It says:
4 Meaning of “proceedings”
In this Act, proceedings includes:
(a) any civil proceedings, criminal proceedings or proceedings before a tribunal, and
(b) any cause, matter, action, suit, proceedings, trial, complaint or inquiry of any kind within the jurisdiction of any court or tribunal, and
(c) any proceedings taken in connection with or incidental to proceedings pending before a court or tribunal, and
(d) any interlocutory proceedings or applications, or procedural applications, taken in connection with or incidental to civil proceedings, criminal proceedings or proceedings before a tribunal, and
(e) any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way.
Section 6 defines the word “institute” (in the sense of instituting proceedings) to include (in civil cases) the taking of a step or the making of an application that may be necessary to start an appeal. The definition of “proceeding” in s 67A of the SCA makes no express reference to an ‘appeal’.
Section 8(1) of the VPNSW relevantly says:
8Making of vexatious proceedings order
(1) When orders may be made An authorised court may make an order under this section (a vexatious proceedings order) in relation to a person if the court is satisfied that:
(a) the person has frequently instituted or conducted vexatious proceedings in Australia, or
(b) the person, acting in concert with a person who is subject to a vexatious proceedings order or who is referred to in paragraph (a), has instituted or conducted vexatious proceedings in Australia.
Section 9 provides for the variation or setting aside of a vexatious proceedings order in certain circumstances.
Section 10 provides for the reinstatement of a vexatious proceedings order in certain circumstances if that vexatious proceedings order was set aside within five years of the reinstatement application.
Section 13 provides that a person may not institute proceedings of the kind to which the vexatious proceedings order relates without the leave of an appropriate authorised court under section 16.
Section 14 sets out the requirements for an application for leave to institute proceedings that the vexatious proceedings order would otherwise prohibit the person from instituting. Section 14(3)-(6) says:
(3) The applicant must file an affidavit with the application that:
(a) lists all occasions on which the applicant has applied for leave:
(i) under this section, or
(ii) before the commencement of this section—as required by an order under section 70 of the Land and Environment Court Act 1979 or section 84 of the Supreme Court Act 1970, and
(b) lists all other proceedings the applicant has instituted in Australia, including proceedings instituted before the commencement of this section, and (c) discloses all facts material to the application, whether supporting or adverse to the application, that are known to the applicant.
(4) The applicant must not serve a copy of the application or affidavit on any person unless:
(a) an order is made under section 16(1)(a), and
(b) the copy is served in accordance with the order.
(4A) An authorised court may decline to consider an application made under this section if the court is not satisfied that the application is materially different from an earlier application under this section that was dismissed under section 15(1)(b) or (c).
(5) An appropriate authorised court may dispose of the application by:
(a) dismissing the application under section 15, or
(b) granting the application under section 16.
(6) Despite any other Act or law, the applicant may not appeal from a decision disposing of the application.
Those sub-sections of s 14 mirror the Queensland requirement for an affidavit containing specified information and the prohibition of an appeal from a decision disposing of the application for leave to institute or continue proceedings.
As noted earlier in relation to the Queensland legislation, the ACT’s SCA does not contain any equivalent provisions.
The NSW provisions I have just mentioned assume importance in the decided cases in NSW and, to my mind, the absence of analogous provisions in the ACT legislation is important for the proper construction of s 67A of the SCA and the different operation s 67A of the SCA has in relation to the issues in this case.
In Viavattene v Attorney General of New South Wales [2014] NSWCA 218 Basten JA and Tobias AJA were dealing with an application from orders prohibiting the applicant from instituting proceedings in New South Wales without leave of the Court, and orders staying all proceedings in New South Wales already instituted by him.
Basten JA held that the applicant required leave to appeal from those orders either because the orders made were interlocutory or because the amount in issue was less than $100,000. Basten JA went on to say:
Because commencement of such proceedings seeking leave would itself involve the institution of proceedings prohibited by the orders made below, such leave may also be required pursuant to s 14 of the Vexatious Proceedings Act: cf Bar Mordecai v State of New South Wales [2012] NSWCA 207; 83 NSWLR 125 at [21]-[22]. It is arguable that such an appeal falls within s 9 and thus does not require leave under s 14. The imposition of an additional leave requirement is superfluous. It is also arguably inappropriate where it is the very order which gives rise to the requirement for such leave which is sought to be challenged.
His Honour did not go on to explore those matters further.
In Potier v Attorney-General, New South Wales [2015] NSWCA 129 Leeming JA, with whom Basten and Meagher JJA relevantly agreed, held at [47] that leave to appeal from the making of a vexatious proceedings order was “probably required” (although the point was not finally decided) because the order challenged was interlocutory.
As to whether the appeal was itself subject to the operation of the VPNSW, the Attorney General disavowed any such suggestion and Leeming JA considered that that concession was properly made. His Honour said at [49] and with particular reference to Conde (see above at [126]-[134] above):
The Attorney disavowed any suggestion that the appeal brought by Mr Potier was itself subject to the operation of the Vexatious Proceedings Act. That concession was, in my view, properly made. The Vexatious Proceedings Act follows the same form as Queensland legislation (which itself derived from model legislation drafted by the Standing Committee of Attorneys General), in respect of which the same conclusion was reached by the Queensland Court of Appeal in Conde v Gilfoyle [2010] QCA 109 at [15]–[30] (Fraser JA, McMurdo P and Peter Lyons J agreeing). Far from being convinced that the decision is plainly wrong (cf Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 at 492), the conclusion seems to me to be correct. It suffices to observe that there will be a class of cases where orders are made under the Vexatious Proceedings Act which disclose appellable error. Not lightly would the Vexatious Proceedings Act be construed so as to require such appeals to be dismissed 28 days after they were commenced, if, say, there were substantial non-compliance with the requirements upon commencing proceedings imposed by the Vexatious Proceedings Act, which only applied as a result of the operation of an order which (arguably) should not have been made.
In Zepinic v Chateau Constructions (Aust) Ltd [2020] NSWCA 291 Bell P and White JA were dealing with an application for leave to appeal. After noting at [19] that the definition of ‘proceeding’ in s 4 of the VPNSW included “any calling into question of a decision, whether or not a final decision, of a court or tribunal, and whether by appeal, challenge, review or in another way” Bell P, with whom White JA agreed, held at [26]:
These orders reflected the fact that the application for leave to appeal to this Court itself amounted to the institution of proceedings within the meaning of the Vexatious Proceedings Act and had been brought without leave …
It does not appear that their Honours were referred to Court of Appeal’s decision in Potier.
In Mohareb v Palmer (No 2) [2020] NSWCA 324 the Court of Appeal was dealing with an application for leave to appeal from orders made under the VPNSW prohibiting Mr Mohareb from instituting any proceeding against Mr Palmer in NSW and from instituting any new proceeding against any person in NSW.
Simpson AJA, with whom McCallum JA (as her Honour then was) agreed, noted the significance of such orders at [116] wherein her Honour said:
Access to courts for redress of actual or perceived wrongs and for adjudication of claims is a basic right in a democratic society: R De W Kennedy (Finance) Pty Ltd v Ley; Ley v Scarff (Supreme Court (NSW), Holland J, 29 March 1978, unrep), quoted in Attorney-General v Wentworth (1988) 14 NSWLR 481 at 484. It is also to the benefit of citizenry generally because it provides a civilised and enforceable means of settlement of disputes. Restriction of access to courts is an extreme interference with those rights: Wentworth at 484; Soden v Kowalski [2011] FCA 318 per Stone J at [35] and in the Full Court: Kowalski v Mitsubishi Motors Australia Ltd (2011) 198 FCR 153; [2011] FCAFC 159 at [58].
At [122] her Honour noted that in relation to the VPNSW:
“Proceedings” is defined in the widest possible terms to encompass virtually all steps that may be taken by a litigant. As has been commented above, “vexatious proceedings” is defined, non-exhaustively, in a way that encompasses a number of proceedings and the manner in which they are conducted.
In Mohareb v Palmer (No 3) [2021] NSWCA 39 Basten JA was dealing with an application for leave to appeal from orders made under the VPNSW that the applicant was prohibited from instituting any proceeding against Mr Palmer in New South Wales. Basten JA noted that in an ordinary case, leave would be required pursuant to s 101(2)(r) of the SCNSW because the amount in issue was less than $100,000. However, his Honour said that there was also an issue whether leave was also required, before the filing of the summons for leave to appeal, pursuant to s 13(1) of the VPNSW (described at [147] above).
Ultimately, his Honour did not decide the point (for reasons explained at [11]) but went on to express the view later in that paragraph:
It might be added that, except in cases where there was simply no room for a different view to be taken from that of the trial judge, leave would usually be given to commence proceedings to challenge the making of a vexatious proceedings order. It would not generally be conducive to the proper administration of justice that a person subject to a prohibition imposing significant constraints on his or her access to justice should not be allowed to challenge the very order which imposed those constraints.
Australian Capital Territory
I shall address the issues in the following order.
First, and putting aside the second issue, I must decide whether, on the proper construction of s 67A of the SCA, a person declared to be a vexatious litigant under that section has a right of appeal from that order. If not, it would follow that, subject to the third issue described below, an affected person could seek leave to appeal.
Second, there is the question whether Mossop J’s orders were interlocutory rather than final. If interlocutory, leave to appeal would be required.
Third, assuming there is no right of appeal but an applicant may seek leave to appeal, would any application for leave to appeal itself be captured by s 67A of the SCA so that leave under s 67A(5) would be required to bring an application for leave to appeal.
Fourth, if the answer to question three is “yes”, how are the two leave applications to be dealt with on a practical basis.
Is there a right of appeal?
The Court’s appellate jurisdiction is found in s 37E of the SCA.
Section 37E relevantly says:
37E Appellate jurisdiction
(1) When exercising its appellate jurisdiction under this part, the court is to be known as the Court of Appeal.
(2) The following matters may be brought before, and heard by, the Court of Appeal:
(a) appeals in relation to orders of the court (except orders of the registrar, the Full Court exercising appellate jurisdiction or the Court of Appeal itself);
(b) appeals under section 37S (Reference appeal in relation to proceeding);
(c) cases stated or questions reserved by the court about any matter in relation to which an appeal may be brought to the Court of Appeal;
(d) applications under part 8AA (Acquittals).
(3) ...
(4) Also, an appeal may be brought against an interlocutory order of the court constituted by a single judge, or the associate judge, only with leave of the Court of Appeal.
Prima facie then, s 37E(2)(a) allows for an appeal as of right because Mossop J’s orders were “orders of the court” (putting aside for the moment the question whether the orders were interlocutory).
The question then is whether s 67A(5) fetters or qualifies s 37E(2)(a) in relation to vexatious litigant declarations because s 67A(5) provides that a person declared to be a vexatious litigant shall not institute or continue any proceedings, and, so the argument goes, an appeal is the institution of proceedings or the continuation of proceedings and so would be captured by the sub-section.
In my view the filing of a Notice of Appeal is the institution of proceedings as defined by s 67A of the SCA. The filing of that document commences a particular formal process in the Court’s appellate jurisdiction which is case managed and leads to a decision binding on the parties.
The word “proceedings” is widely defined in and for the purposes of s 67A. It is not otherwise defined in the SCA. The definition in s 67A says that “proceedings” means any cause, matter, action, suit or proceeding of any other kind within the jurisdiction of the court.
Some dictionary definitions may assist.
One dictionary definition of “cause” is a person or thing that gives rise to an action, phenomenon, or condition, or a matter to be resolved in a court of law. An appeal is something resolved by a court of law.
One dictionary definition of “matter” is a subject or situation under consideration. An appeal can be thought of as a subject or situation under consideration.
One dictionary definition of “action” is the fact or process of doing something, typically to achieve an aim. An appeal is the doing of something to achieve the aim of altering the orders made at first instance.
One dictionary definition of “suit” is a lawsuit (itself defined in one dictionary as a claim or dispute brought to a law court for adjudication). An appeal obviously falls within this general meaning.
One dictionary definition of “proceeding” is a particular step or series of steps in the enforcement, adjudication, or administration of rights, remedies, laws, or regulations. An appeal can be thought of as falling within those general terms.
Dictionaries are an aid to interpretation but do not govern it. As the Full Court said in Polo/Lauren Co LP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266:
[24] It is convenient to pause to consider the assistance that dictionary definitions, if any, provide to such questions of statutory interpretation. The common law has long approved of dictionary definitions to assist in statutory interpretation (see eg R v Peters (1886) 16 QBD 636 at 641 per Lord Coleridge CJ), but while this is a useful reference point, and indeed the approach taken by the learned first instance judge and by counsel, a dictionary definition is not conclusive and must be used with caution. As Mason P in House of Peace Pty Ltd v Bankstown City Council (2000) 48 NSWLR 498 noted at [28]:
A dictionary may offer a reasonably authoritative source for describing the range of meanings of a word, including obsolete meanings. Dictionaries recognise that usage varies from time-to-time and place-to-place. However, they do not speak with one voice, even if published relatively concurrently. They can illustrate usage in context, but can never enter the particular interpretive task confronting a person required to construe a particular document for a particular purpose.
See also Will v Brighton [2020] NSWCA 355 per Bell P at [52]-[57] and Basten JA at [109], [111]-[120] to similar effect.
Be that as it may, the dictionary definitions referred to above express very wide concepts. So wide are they, and so widely expressed is the definition of “proceeding”, that I see no warrant for holding that an appeal lies outside the meaning of “cause, matter, action, suit or proceeding of any other kind within the jurisdiction of” the Court.
I think the better view is that an appeal is the commencement rather than the continuation of proceedings, although even if it is the continuation of proceedings an appeal remains caught by s 67A.
In other jurisdictions an appeal has been held to be a proceeding (albeit subject to different statutory considerations).
In Victoria, in Kay, Chernov JA said at [27] (footnotes omitted):
There is some force in the argument that, ordinarily, the filing of a notice of appeal or an application for leave to appeal amounts to the commencement of a “legal proceeding”: Vernazza; Braeside Bearings Pty Ltd v H J Brignell & Associates (Boronia); Cheney v Spooner; Re Crittendon; Ex parte The Law Institute of Victoria. But it is also arguable that, ordinarily, such a step within the same court is properly characterised as the continuation of a legal proceeding. Be that as it may, however, this still leaves open the question whether the institution of an appeal which seeks to challenge the correctness or the validity of the decision to declare the appellant a vexatious litigant, amounts to the commencement or to the continuation of “legal proceedings in the Court” for the purposes of s 21(3).
Thus, his Honour appears to have taken the view that but for his Honour’s view about s 21(3), his Honour would have regarded an appeal as either the commencement of proceedings, or the continuation of proceedings. In my view it matters not which it is as s 67A(5)(a) includes both.
In NSW the Court of Appeal held in Clemens that the filing of a Notice of Appeal was the commencement of proceedings (see [116]-[117] above).
Also, in NSW Bell P and White JA held in Zepinic that the filing of an application for leave to appeal was the institution of proceedings (within the meaning of that term in the VPNSW) (see [157] above).
In the ACT Higgins CJ, Penfold and Rares JJ said at [12] in Preston v Dukes [2012] ACTCA 29 that the refusal of leave to appeal was refusal of permission by the Court for a party to institute proceedings by way of appeal in the Court.
The plain purpose of s 67A is to bring vexatious litigation to an end, and to prevent further vexatious litigation from being commenced or continued. Thus, it has a wide remit because vexatious litigation may occur in any proceeding in the court. Put plainly, an appeal may be just as vexatious as a matter at first instance.
That s 67A applies to all matters in the Court, whether they be appeals or matters at first instance, is apparent from the terms of the section and the Attorney-General’s presentation speech.
In that speech the Attorney said:
Mr Deputy Speaker, I would like to turn now to the second matter dealt with by this Bill. The ACT and the Northern Territory are the only jurisdictions which do not have provisions to deal with persons who are vexatious litigants. In general terms, a vexatious litigant is one who institutes proceedings for an ulterior purpose or without reasonable grounds. This Bill will enable the Supreme Court, on application, to declare a person to be a vexatious litigant. Where a declaration has been made, that person will not be able to commence or continue proceedings without the leave of the Supreme Court. I understand that the experience of other jurisdictions suggests that courts are slow to make such a declaration. An application for a declaration may be made by the Attorney-General or, in relation to proceedings, by a person aggrieved by the institution of those proceedings.
There are three interesting features about this aspect of the Bill. The first is that a declaration will operate in respect of proceedings before a tribunal. This is sensible, given the trend of providing for tribunals to deal with matters which formerly would have been the subject of judicial proceedings. The second is that it allows a declaration to be made in respect of a particular type of matter. Thus, if there is a neighbourhood dispute, a declaration can be made in respect of that type of matter and that would not otherwise limit the ability of the person the subject of the declaration to commence proceedings in relation to other matters. Finally, if the court makes a declaration that a person is a vexatious litigant, the declaration will have the effect of preventing that person and, in addition, any other person acting in concert with the vexatious litigant from instituting or continuing proceedings without the leave of the court. This will assist in preventing the circumvention of a declaration. I commend the Bill to the house.
(Emphasis added)
Section 139 of the Legislation Act 2001 (ACT) says that the interpretation that would best achieve the purpose of s 67A is to be preferred to any other interpretation.
In the presentation speech the Attorney said that s 67A’s purpose (at least in part) was to prevent circumvention of the declaration, and to prevent the relevant person from instituting or continuing proceedings without the leave of the court. That purpose is widely expressed, and no exception was mentioned in relation to an appeal from the declaration.
In my view the textual and contextual considerations support that conclusion.
At a textual level the conglomeration of words of wide meaning in the definition of the word “proceedings” for the purposes of that particular section directed to vexatious litigation which may occur in any matter in the Court speaks to the widest possible meaning of the defined word.
At a contextual level, that conglomeration of words of wide meaning in a provision specifically enacted to deal with people who have frequently instituted proceedings the purpose of which was to harass or annoy, to cause delay or for some other ulterior purpose, or that lacked reasonable grounds, suggests Parliament intended a very wide net to capture every conceivable way a vexatious litigant may find to birth a vexatious contest in the Court.
Section 140 of the Legislation Act provides that in working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole. No other provisions of the SCA appear to be relevant, but it seems to me to be relevant that s 67A was enacted in the context of the Supreme Court being a superior court of record which has the inherent jurisdiction to control its own processes and to protect those processes from abuse (see [41] above). It seems unlikely to me that Parliament would have intended to fetter that inherent jurisdiction by providing (by implication) in ss 37E and 67A an unfettered right of appeal from a vexatious litigant declaration in the absence of clear words to that effect.
That context does not, of course, displace the plain meaning of the statutory provision. As the High Court has said, the language actually employed in the text of legislation is the surest guide to legislative intention, and to my mind the plain (and wide) meaning of the terms of the definition include an appeal.
The SCA also does not contain the “quite stringent requirements” set out in s 11 of the VPQ nor s 14 of the VPNSW, nor the express statutory prohibitions against an appeal from a dismissal of such an application in both statutes [see s 11(6) and s 14(6) respectively]. Therefore, those considerations which heavily influenced the judges in the other jurisdictions do not exist here.
The question then to be considered is the interaction between s 37E(2)(a) and s 67A.
Section 37E(2)(a) is similarly worded to s 17 of the SCV except the Victorian provision included the words “otherwise expressly provided by this or any other Act”, words which were critical to the reasoning in Kay to the effect that an appeal on the merits lay to the Court of Appeal from an order declaring a person to be a vexatious litigant under s 21 because that section did not fall within the words “otherwise expressly provided” in s 17 (see [102]-[108] above).
In general, provisions of general application in a statute give way to specific provisions when in conflict: DC Pearce and RS Geddes, Statutory Interpretation in Australia, LexisNexis Butterworths, 6th ed, 2006 at [4.32] and [7.18]-[7.21].
Clearly enough s 37E is a provision of general application, and s 67A one of specific application in a defined area. In my view s 37E must give way to s 67A in this respect.
For all of those reasons it is my view that an appeal falls within the definition of “proceedings” in s 67A, and that the filing of a Notice of Appeal is the commencement, or in the alternative the continuation, of proceedings in the jurisdiction of the Court. An appeal is a cause, matter, action, suit or proceeding of any other kind within the jurisdiction of the Court.
Because of the answer to this question, I need not decide the alternative question proposed by the respondents. That is, assuming there was a right of appeal from the order declaring Mr Jorgensen a vexatious litigant, nevertheless Mr Jorgensen required leave to appeal because he appealed from all other orders made by Mossop J.
Clearly enough an appeal from the remaining orders made by his Honour requires leave to appeal, as does (as I have found) an appeal from the vexatious litigant declaration. Therefore, leave to appeal is required in relation to all of the orders Mr Jorgensen wishes to appeal from.
However, in the event this judgment is appealed, I will briefly state that I would not have dismissed or stayed the entirety of the appeal assuming there was a right of appeal from Order 4 but leave was required for any appeal from the other orders. I would have stayed any appeal in relation to the other orders because they would be caught by s 67A but would not have stayed the appeal. To my mind it is possible to separate the matters so that some might proceed and some might not in particular circumstances.
Were the orders interlocutory?
In my opinion, putting aside the answer to question 1 above, Mossop J’s Order 4 (declaring Mr Jorgensen to be a vexatious litigant) was interlocutory.
The balance of opinion in the authorities referred to above (albeit on different legislation) favoured the view that such orders are interlocutory. Even though the legislation considered in those cases was different to that of the ACT, importantly, each statute allowed for applications to be made to vary or revoke the relevant order and it was that fact above all others which led to the conclusion that the relevant orders were interlocutory rather than final orders. So it is here in the ACT.
Because someone in Mr Jorgensen’s position may seek to revoke or vary the declaration made by Mossop J pursuant to s 67A, or any conditions to which the declaration may have been subject, the order made did not finally determine the applicant’s rights.
On that basis, per the authorities and reasoning set out in Hall v Nominal Defendant [1966] HCA 36; 117 CLR 423, Carr v Finance Corporations of Australia Ltd (No 1) [1981] HCA 20; 147 CLR 246 and Arrow International Australia Ltd v Group Konstrukt Pty Ltd [2012] ACTCA 37 at [9]-[14], in my view Mossop J’s Order 4 was interlocutory and, but for the answer to question 1 above, leave to appeal would have been required. I note the views expressed by judges in other jurisdictions is to similar effect.
Is leave required under s 67A to file an application for leave to appeal?
Ordinarily, an application for leave to appeal, or special leave to appeal, is not a proceeding in the ordinary course of litigation but is a preliminary procedure: Collins v R [1975] HCA 60; 133 CLR 120 at 122; Coulter v R [1988] HCA 3; 164 CLR 350 at 356.
In Collins, Barwick CJ, Stephen, Mason and Jacobs JJ said:
In the ordinary course of litigation, criminal or civil, it is considered that a party to proceedings should have the right to present his own case. But an application for leave or special leave to appeal is not in the ordinary course of litigation. The practice of this court in granting or refusing leave or special leave makes this clear. First, until the grant of leave or special leave, there are no proceedings inter partes before the court. This is so even in a case in which the application for leave or special leave is opposed. Whilst notice of intention to move the court for leave or special leave may be given in writing, which is filed in the registry of the court, the motion for leave or special leave is made orally in court. Notwithstanding that the notice of intention to apply is served on persons who may be interested to oppose the application, the intending applicant is not bound to move the court. When the motion is moved, the applicant for such leave or special leave is no more than an applicant desiring to obtain the court's leave to commence proceedings in the court. Secondly, the application must exhibit features which attract the court's discretion in granting leave or special leave. There is no right to leave or special leave. In the latter case, the matter must involve questions of general public importance. The special nature of the application must be maintained in contradistinction to proceedings inter partes brought as of right or pursuant to the court's leave.
In Coulter v R [1988] HCA 3; 164 CLR 350 (cited with approval in Manny v Nissen (No 2) [2023] ACTCA 20 at [13]), the majority noted that a leave requirement was a preliminary procedure “recognised by the legislature as a means of enabling the court to control in some measure the volume of appellate work requiring its attention”: at 356 (Mason CJ, Wilson and Brennan JJ).
That statement has been held to be applicable to civil, as well as criminal, appellate jurisdiction: Be Financial Pty Ltd v Das[2012] NSWCA 164 at [32]–[36] per Basten JA (Tobias AJA agreeing).
Collins and Coulter were applied in the ACT in Preston v Dukes [2012] ACTCA 29 in which Higgins CJ, Penfold and Rares JJ said at [12] (citing Collins):
A refusal of leave to appeal is refusal of permission by the Court for a party to institute proceedings by way of appeal in the Court …
(Emphasis added)
Of course, Collins concerned O 70, r 2(6) of the High Court Rules 2004 (Cth) and s 78 of the Judiciary Act 1903 (Cth).
In this case I am concerned with a different governing provision, namely s 67A of the SCA. Most importantly I am concerned with the definition of ‘proceedings’ found within that section.
The issue assumes some importance not least because one view has been expressed to the effect that there is no res judicata arising from failed applications for leave to appeal with the result that multiple applications may be made.
Basten JA expressed that view in Macatangay v New South Wales [2009] NSWCA 81. His Honour said:
[26] I will assume that the refusal of leave does not of itself preclude a further application. Although the point was not argued, until leave has been obtained, there are no proceedings in this Court, in the sense identified in Collins v R [1975] HCA 60; 133 CLR 120 at 122, applied in DJL v Central Authority [2000] HCA 17; 201 CLR 226 at [47] (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ). Accordingly, the first refusal of leave does not give rise to a res judicata against the applicant.
[27] Sitting as a single judge of the Court, I should nevertheless accept and apply the views expressed in the judgment dismissing the earlier leave application, to the extent that similar issues now arise. However, there are reasons why the approach adopted on the earlier application should not be treated as determinative of the likely outcome of any future leave application.
If that view be correct, as it probably is, it provides one reason (or context) why ‘proceedings’ in s 67A should include applications for leave to appeal as vexatious litigants are the more likely class of people tempted to bring multiple applications for leave to appeal.
I have earlier in this judgment held that the word ‘proceedings’ is widely defined for the purposes of s 67A and includes an appeal.
In terms that definition applies to s 67A and no other section because the opening words of s 67A(1) are “(I)n this section… proceedings means …”. Those words indicate that the meaning given to the word “proceedings” for the purposes of s 67A is different to how that word is understood elsewhere in the SCA and, most particularly, the general law authorities referred to above that an application for leave to appeal is not (ordinarily) a proceeding.
As mentioned earlier, the s 67A definition includes any “cause, matter, action, suit or proceeding of any other kind” within the jurisdiction of the Court, words of wide meaning.
The word ‘proceedings’ is not otherwise defined in the SCA. “Criminal proceedings” are defined in the Dictionary as “proceedings in the court for the prosecution of a person on indictment”, but there is no definition of civil proceedings.
In my view the definition of ‘proceedings’ is so wide that it captures applications for leave to appeal. Whilst ordinarily an application for leave to appeal is not a proceeding (as generally understood), but a preliminary procedure, it is nevertheless a cause, matter, action, suit or proceeding of any other kind within the jurisdiction of the Court.
Giving the definition of ‘proceedings’ that wide interpretation achieves the purpose of the provision, that is to control anything a vexatious litigant may attempt to do in the Court after being declared a vexatious litigant. That may be viewed as extreme, and I bear in mind the observations mentioned by Simpson AJA (quoted at [160] above) that access to courts is a basic right in a democratic society and that restriction of access to courts is an extreme interference with those rights. Those considerations have weighed heavily in my mind.
On the other hand, vexatious litigation harms other litigants. Amongst other things, in a court such as the Supreme Court of the ACT where resident judges hear both criminal and civil cases, vexatious litigation extends the time some prisoners will spend on remand awaiting their trial (some of whom will be found not guilty), it delays the awarding of compensation which may pay for medical treatment, living expenses and necessary home modifications amongst other necessities for some personally injured litigants, it fetters commercial activity by delaying the determination of commercial disputes. These are but a few examples of the very real harms actually suffered by other litigants as a result of delays in having criminal and civil cases heard, such delays being exacerbated by judicial resources being spent on vexatious litigation.
On the other hand, vexatious litigants have two possible remedies. They may apply to revoke or vary the order declaring them to be a vexatious litigant, or they may seek leave to file an application for leave to appeal. In either case they have a means of redress, in whole or in part, from a declaration that they are a vexatious litigant.
I also note that s 67A(13) provides a single express exception to the need to obtain leave under s 67A(5), and that exception is for an application to revoke or vary a declaration or conditions. It seems significant to me that Parliament turned its mind to the question of exceptions to the need to seek leave under s 67A(5) and decided that the only exception would be for applications for revocation or variation.
It is also significant to me that Parliament provided in s 67A(6) an express provision to the effect that, if the Court is to grant leave under s 67A(5), it may do so on conditions relating to security for costs and matters relating to the issue of process. It seems to me that the first of those matters would ordinarily be a significant consideration, and especially so in relation to appeals.
For all of those reasons, it is my view that an applicant must seek leave pursuant to s 67A to bring an application for leave to appeal from an order which declared the applicant to be a vexatious litigant.
Hearing the two applications together
It is logical that there would be significant (although not total) overlap in the considerations to be taken into account between an application for leave to bring an application for leave to appeal pursuant to s 67A, and the application for leave to appeal itself.
The requirements for the granting of leave to appeal in the ACT were set out by Refshauge ACJ in Arrow at [58]. His Honour said:
The principles on which a court will grant leave to appeal have been dealt with by the courts. The principles, which I set out in Capital Property Projects (ACT) Pty Ltd v Planning and Land Authority (ACT) (2008) 2 ACTLR 44, may be summarised as follows:
(a) leave will be granted sparingly to avoid delaying and fragmenting the hearing of cases;
(b) a court will be particularly hesitant to grant leave where the decision is one in respect of practice and procedure or is made in the exercise of a discretion;
(c) decisions which, though interlocutory, determine substantive rights will more readily be the subject of the grant of leave;
(d) the party seeking leave bears the onus of satisfying the court of the necessary criteria to justify the grant of leave;
(e) the court will ordinarily grant leave where the decision is wrong and prejudice will be suffered by the appellant;
(f) leave may also be granted where the decision is attended with sufficient doubt to warrant its reconsideration or, to put it another way, where the decision is “attended with difficulty and [its] correctness is open to dispute” (Decor Corporation Pty Ltd v Dart Industries Inc (1991) 33 FCR 397 at 400) and, if it is wrong, significant consequences will be suffered by the applicants; and
(g) it may be a factor favouring the grant of leave that:
(i)the decision involves a matter of public importance; or
(ii)the decision may affect the fairness of the trial, a consideration under s 21 of the Human Rights Act 2004 (ACT), though this can also weigh against the decision if the appeal results in unfair delay or fragmentation of the trial.
The requirements for seeking leave to proceed pursuant to s 67A(5) have not yet been the subject of any decision in the ACT up to this point in time, but I would think the relevant considerations would not be wholly the same as on an application for leave to appeal.
Presumably one significant factor to be considered would be whether the contemplated proceedings (or application for leave to appeal) is demonstrably not brought to harass or annoy, to cause delay or for some other ulterior purpose, or that lacked reasonable grounds.
At the same time the Court would be considering whether, if leave were to be granted, the Court should impose conditions on the grant of leave pursuant to s 67A(6) including the possibility of an order for security for costs pursuant to s 67A(7).
It would also seem possible to me that the Court could, at any later stage, revoke any grant of leave to commence proceedings (or an application for leave to appeal) in the event it became subsequently clear that the appeal or proceedings were in fact brought to harass or annoy, to cause delay or for some other ulterior purpose, or lacked reasonable grounds. This revocation of leave would be somewhat akin to the High Court’s ability to subsequently revoke special leave to appeal if it later became clear that special leave to appeal should not have been granted.
I see no difficulty in both applications being heard at the same time by the same judge, and many advantages in so doing. A judge of this court hearing both applications would be sitting concurrently as a puisne judge and as a judge of appeal.
In relation to the application for leave to appeal, some judges in other jurisdictions have made obiter comments to the effect that the bar to be satisfied for seeking leave to appeal from a declaration that a person was a vexatious litigant (or analogue order) would be quite low.
For example, in Kostov v State of New South Wales [2019] NSWCA 17 McCallum JA (as her Honour then was) said at [12] that any applicant for leave to appeal from such an order “should have it for the asking”.
With great respect, I would not go so far as McCallum JA, nor would I agree with the proposition that the bar for leave to appeal from a vexatious litigant declaration would be quite low.
Of course, McCallum JA’s observation was made in the context of different legislation which contained more onerous requirements and harsher consequences than exist in the ACT [e.g. the need to file a somewhat onerous affidavit pursuant to s 14 of the VPNSW and the abolition of any right of appeal from dismissal of an application for leave to institute proceedings per s 14(6)].
So far as concerns the ACT, and although reasonable minds may differ on this point, I see no warrant for applying a lower standard for obtaining leave to appeal from an order declaring a person a vexatious litigant than in obtaining leave to appeal in any other case.
Of course, having said that, and in accordance with principle (set out in Arrow quoted above at [236]), leave to appeal will ordinarily more readily be granted when a decision, although interlocutory, in substance determines substantive rights. Although a declaration that a person is a vexatious litigant may not determine substantive rights, it undoubtedly fetters important civil rights, and no doubt that fact would be taken into account on any application for leave to appeal.
Orders
Rule 1450 of the Rules says that a failure to comply with the Rules in relation to a proceeding is an irregularity and does not make the proceeding, or a document, step taken or order made in the proceeding, void. However, Mr Jorgensen did not simply (if there is such a thing) not comply with the Rules, he failed to seek the leave required by statute, namely s 67A(5).
Therefore, the filing of a Notice of Appeal when he was not entitled to do so is not a mere irregularity.
Section 67A(5)(a) prohibited the filing of the Notice of Appeal by Mr Jorgensen.
Section 67A(11) says that if proceedings are instituted by a person in contravention of that section, the proceedings shall be taken to have been permanently stayed. Accordingly, I shall order that the appeal be permanently stayed.
Section 67A(12) says that, if practicable, any documents filed or lodged with the Court by a person in proceedings referred to in subsection (11) shall be returned to the person by the registrar. I shall not make that order in this case against the event these proceedings go further.
I make the following orders:
(1)I grant leave to the respondents nunc pro tunc to file the application in proceeding dated 14 June 2023 and, to the extent necessary, lift the stay imposed by s 67A of the Supreme Court Act 1933 (ACT) for the hearing and determination of that application.
(2)The appeal is permanently stayed.
(3)The appellant/respondent to the application is to pay the respondents/applicants to the application costs of the application.
| I certify that the preceding two hundred and fifty-three [253] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Curtin. Associate: Date: |
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