Kay v Attorney General for the State of Victoria

[2009] VSC 573

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6562 of 1998

IAN KAY	Plaintiff
v
ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 DECEMBER 2009
DATE OF JUDGMENT:	1 DECEMBER 2009
CASE MAY BE CITED AS:	KAY v ATTORNEY GENERAL FOR THE STATE OF VICTORIA
MEDIUM NEUTRAL CITATION:	[2009] VSC 573

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PRACTICE AND PROCEDURE – Vexatious litigant – Application for revocation s.21(5) Supreme Court Act1986 – Application for revocation refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant

HIS HONOUR:

1. The applicant in this matter, Mr Ian Kay, by his summons dated 1 September 2009, founded on his originating motion, seeks, in substance, the revocation of the order made in 1999 declaring Mr Kay to be a vexatious litigant. Section 21(5) of the Supreme Court Act 1986 provides the Court may, at any time, vary, set aside or revoke an order made under subsection 2 if it considers it appropriate to do so.  It is under that subsection that Mr Kay makes his present application.

1. As was observed by Cavanough J in his decision, Attorney‑General for the State of Victoria v Kay:[1] 

An application under s 21(5) to set aside an order declaring a person to be a vexatious litigant should not be allowed unless the court is persuaded that there has been such a change in relevant circumstances since the making of the order as to make it appropriate that the order be set aside. The Court must be satisfied that there is no real risk of the applicant engaging further in conduct of the kind which attracted the making of the order. Even if fresh evidence has been found, it has to be directed to the issue of a change of circumstances on the applicant’s part; for the question is not whether the vexatious litigant declaration should have been made in the first place but whether the applicant can demonstrate that it should not continue.

[1][2009] VSC 337 at para [8].

1. In the matter before Cavanough J, which was heard by his Honour on 26 May 2009, there were two summonses filed by Mr Kay. The first is a summons which is relevant to this application and was a summons filed 5 May 2009, addressed to the Victorian Attorney‑General by which Mr Kay applied, in effect, for an order under s.21(5) of the Supreme Court Act 1986 revoking or setting aside the orders made by Eames J pursuant to s.21(2) of the Act on 23 February 1999.  By those orders of Eames J, Mr Kay was declared to be a vexatious litigant and it was provided that subject to one presently irrelevant exception, Mr Kay must not, without the leave of a Judge of this Court, commence or continue any legal proceedings in this Court, the County Court, the Magistrates' Court or any Victorian tribunal.

1. The conduct which gave rise to the making of that declaration by Eames J was summarised in a detailed judgment presented by his Honour dated 23 February 1999. I refer to the citation [1999] VSC 30. At paragraph 177, Eames J made the following observation as to Mr Kay:

The conduct of the defendant is manifestly that of a vexatious litigant, the proceedings, to a significant degree, have failed to disclose a proper cause of action and have manifested a determination to ignore past adverse rulings and to relitigate matters which he has repeatedly been told cannot be litigated.  Mr Kay is using the legal process for the purpose of waging a campaign primarily against the Family Court.  His pleadings often employ the strident language which he uses in his campaign waged outside the court precincts and his pleadings are similarly unrestrained by reference to legal principle.  Further more, Mr Kay has brought proceedings in Victorian courts habitually, persistently, and without reasonable cause and will continue to do so unless restrained from doing without the leave of this court.  

1. In my opinion, there has been no demonstration on the part of Mr Kay in the present application that he will not desist in such proceedings.  I am not satisfied that there is no risk of the applicant engaging in further conduct of the kind which attracted the making of the order in the first place.  Furthermore, I am not satisfied that since the date of judgment of an application on the same basis, that of Cavanough J in Attorney‑General for the State of Victoria v Kay, which judgment was handed down on 14 August 2009, there has been any change of circumstances of any relevance which would justify the making of the order which Mr Kay now seeks. 

1. As to Mr Kay's request for the supply of documents, I see no proper basis for this Court to make any such order, given that I am not going to set aside, vary or revoke the order that Mr Kay remain as a vexatious litigant.

1. Accordingly, I dismiss Mr Kay's summons of 1 September 2009, and the originating motion, which is the foundation for that summons, and I make no orders as to costs.

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