Practice and procedure – Vexatious litigant – Whether vexatious litigant order final or interlocutory – Whether leave to appeal against order required – Supreme Court Act 1986, ss.17A(4)(b), 21.
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APPEARANCES:
Counsel
Solicitors
For the Applicant
(In person)
For the Respondent
Mr. M.A. Robins
Victorian Government Solicitor
ORMISTON, J.A.:
I have had the very real advantage of reading the reasons for judgment to be given by Chernov, J.A. For the reasons he expresses I also consider that the two summonses filed herein, one seeking leave to appeal against an order declaring the applicant a vexatious litigant, the other seeking leave to vary that order, should be dismissed. I would add only this. Eames, J. conducted the hearing with exemplary care and meticulous fairness so that from his Honour’s reasons it is abundantly clear why the applicant should have been declared a vexatious litigant. The judge extended considerable generosity and latitude to the applicant who appeared on his own behalf, but I would not wish it to be thought that, in every application of this kind under s.21 of the Supreme Court Act1986, it was necessary to re-examine the circumstances of each proceeding upon which the Attorney-General might seek to rely to support the making of an order. If the proceedings relied upon are frivolous, vexatious or otherwise of a kind which would support the making of the order, then that ordinarily should be apparent upon a reading of the reasons and orders and, if it is not, there will be usually no sensible basis for relying upon them, except to the extent that they may form part of a relevant chain of events. The learned judge, primarily I would gather from a sense of fairness and in an attempt to discover why the applicant said that the order should not be made, went somewhat further into the reasons for the various orders, the circumstances that lay behind them and what may now be thought to be the applicant’s unreasonable attacks upon them. On other occasions, therefore, examination in such detail may properly be seen to be unnecessary, for the procedure is not to be treated as the opportunity for a second line of appeal against judgments or orders upon which reliance is placed for the making of an order under s.21. However, the examination in this case makes it more than clear that there is no conceivable basis upon which the applicant could succeed on appeal.
BATT, J.A.:
I have had the considerable benefit of reading in draft the reasons for judgment of Chernov, J.A. I agree in his Honour’s reasons and conclusions.
CHERNOV, J.A.:
The two summonses filed in this proceeding, each dated 30…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Kay v Attorney-General [2000] VSCA 176
Case
[2000] VSCA 176
Decision Date
CaseChat Overview and Summary
In the matter of Kay v Attorney-General, the dispute arose from an application for a declaration that the applicant was not a vexatious litigant. The applicant sought to overturn a decision made under the Supreme Court Act 1986, which imposed a vexatious litigant order on them. The case was heard in the Supreme Court of Victoria.
The primary legal issue before the court was the nature of the vexatious litigant order. Specifically, the court needed to determine whether the order was final or interlocutory in nature. This distinction was crucial as it would determine whether leave was required to appeal the decision. The court also needed to consider whether the applicant could appeal the order without first obtaining leave from the court.
The court found that the vexatious litigant order was interlocutory in nature, meaning it was not a final decision. The court noted that such orders could be challenged at any time before a final judgment was entered. The court held that the applicant could appeal the order without needing to obtain leave, as interlocutory orders do not generally require leave for appeal. The court's reasoning was based on statutory provisions and the inherent jurisdiction of the court to control its own process.
The final orders of the court were that the vexatious litigant order was interlocutory, and the applicant could appeal the order without needing leave. The applicant was granted leave to appeal the decision on the basis that the order was interlocutory and could be challenged at any time before a final judgment.