Kay v McIntosh
[2003] VSC 373
•1 October 2003
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
No. 6562 of 1998
| IAN KAY | |
| Plaintiff | |
| v. | |
| HEATHER McINTOSH | Defendant |
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JUDGE: | BYRNE, J. | ||
WHERE HELD: | MELBOURNE | ||
DATE OF HEARING: | 30 September 2003 | ||
DATE OF JUDGMENT: | 1 October 2003 | ||
CASE MAY BE CITED AS: | Kay v McIntosh | ||
MEDIUM NEUTRAL CITATION: | [2003] VSC 373 | ||
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Practice and Procedure – vexatious litigant – application to review order of Magistrates’ Court – application for leave to continue or commence proceeding for revocation or variation of intervention order.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Defendant | No appearance |
HIS HONOUR:
In order to understand this application filed by the plaintiff, Ian Kay, on 24 September 2003, it is necessary to summarise its background.
Some nine years ago, Heather Kay, now Heather McIntosh, sought and obtained an intervention order against her husband, Ian Kay, pursuant to the Crimes (Family Violence) Act 1987. On 5 May 1995 this order was extended for an indefinite period. Under this order Mr Kay is prevented from approaching his children. This has been a source of grievance for him.
In the ensuing twelve months Mr Kay sought to vary or revoke this order on three occasions. On each occasion his application, and the consequent appeals, have been unsuccessful. Furthermore, on 18 August 1995, the Family Court awarded to Mrs Kay sole guardianship and custody of the children and denied Mr Kay access.
On 14 May 1996, Mr Kay made a fourth application to the Magistrates' Court to vary or revoke the intervention order. By order made on 11 June 1996, the magistrate ordered that the application be stayed pending provision by Mr Kay of $1,000 security for Ms McIntosh’s costs of the application. The magistrate also imposed a further condition, but this was later removed. I shall refer to this order as the Magistrates' Court stay order.
Mr Kay challenged this order in this court and in the Court of Appeal, but without success. His 1996 application to vary or revoke the intervention order remained stayed.
On 24 February 1999, in proceeding No. 6562 of 1998, Mr Kay was declared a vexatious litigant pursuant to s. 21 of the Supreme Court Act 1986. Accordingly he may not commence or proceed with any proceeding in any court or tribunal without the leave of this court. By sub-s. 21(4), leave must not be given unless the court is satisfied that the proceedings are not, or will not be, an abuse of the process of the court or tribunal.
On 26 February 1999, Beach J, sitting in the Practice Court, refused Mr Kay’s application for leave to apply to the Magistrates’ Court for an order for revocation of the intervention order. A number of similar applications were refused by judges of this Court throughout 1999.
On 5 August 1999 the magistrate refused to entertain an application by Mr Kay for revocation of the intervention order, on the basis that the Magistrates' Court stay order operated to bar this. Mr Kay returned to this Court on 16 December 1999 and again on 25 February 2000 seeking leave to apply to the Magistrates’ Court for a revocation order. On the latter occasion, Beach J made an order granting to Mr Kay conditional leave to make an application to vary or revoke the intervention order. The condition was that he first comply with the terms of the Magistrates' Court stay order by providing $1,000 security. Mr Kay sought, in July 2002, to appeal against this order of Beach J made two years previously. In the course of dealing with this application for leave to appeal out of time, in his judgment of 16 December 2002, J.D. Phillips JA, with whom Buchanan JA agreed, said this:
“As I understand the material (and Mr Kay tells us today it is so) the order requiring security for costs was made because at the time Mr Kay was resident outside the jurisdiction. He resided then in Queensland. He has since moved back into Victoria and now resides within the jurisdiction. That, it seems to me, is a material alteration in circumstances, in reliance upon which he would be entitled, I imagine, to make application to the Magistrates' Court for a variation of the stay, if not its revocation, on the basis that, while the stay was valid and effective when made (and being properly made in the exercise of discretion as determined by Byrne, J.) it can now be argued that circumstances have so changed so as to make such an order inappropriate.
In saying that I am simply assuming that the Magistrates' Court, having ordered the stay on terms, has jurisdiction now to revise that stay if it considers that the reason for the terms have indeed altered, and altered materially. I do not pass upon the question of jurisdiction; that is a matter to be resolved and it is a matter which, for obvious reasons, cannot be resolved this morning, not least of which is the absence of Mrs McIntosh.”
I should add that the factual basis underlying His Honour’s observation is now said by Mr Kay before me to be incorrect. The 1996 order that he provide security, Mr Kay said, was not in any way related to the fact that he resided at the time out of Victoria and in Queensland.
What happened after the order of the Court of Appeal in December 2002 is not altogether clear. Mr Kay has produced certified extracts of the Magistrates' Court orders made in March and April of this year, in which his application or applications to vary or discharge the intervention order were adjourned, and finally, on 8 April, they were struck out on the basis that he is a vexatious litigant and that he had no leave to apply to the Magistrates' Court. The certified extract also adds that, in any event, no new facts and circumstances were provided to support an application to revoke the intervention.
The position is now clear. There were in early 2003 two, or perhaps three, orders which operated quite separately to prevent Mr Kay from continuing with his 1996 application to revoke or vary the 1995 intervention order, or to bring a fresh application to achieve the same result. The first was the Magistrates' Court stay order which operated to prevent the Magistrates’ Court application of May 1996 from being continued unless and until $1,000 security be provided. The second was the vexatious litigant order of February 1999 which prevents Mr Kay from continuing that 1996 application or from making a fresh application without leave. The third was the condition imposed by Beach, J. in February 2000 upon the leave which he granted to Mr Kay to make a fresh application to vary or set aside the intervention order.
Against this background Mr Kay applied to Williams J for an order that he be given leave to apply to the Magistrates' Court to revoke the intervention order. In support of his application he relied upon the observations of the Court of Appeal to which I have referred. On 15 August 2003, Her Honour made the following order:
“The plaintiff is granted leave under s. 21 of the Supreme Court Act 1986 to commence proceedings in the Magistrates' Court of Victoria for the variation or revocation of the order staying his right to commence proceedings.”
Two things must be said about this order. First, it is an exercise of power under s. 21 of the Supreme Court Act. Second, it permits Mr Kay to approach the Magistrates' Court to vary or revoke the Magistrates' Court stay order; it does not give to Mr Kay leave to seek a revocation or variation of the intervention order itself.
Armed with this order of 15 August, Mr Kay returned to the Magistrates' Court. Following the hearing yesterday, I obtained a copy of the order of the Magistrates' Court of 10 September 2003 about which Mr Kay now makes complaint before me. It appears from this order that there were three applications then before the Magistrates' Court: first, an application by Mr Kay filed on 19 August 2003 seeking revocation of the intervention order and, second, an oral application by him to revoke the Magistrates' Court stay order. The third application was filed by Ms McIntosh to vary the intervention order. The orders made by the Magistrates' Court on 10 September 2003 were as follows. First, on Mr Kay’s application to revoke the Magistrates' Court stay order, the court noted that the order of Williams J. of 15 August permitted this application. The application was granted; the Magistrates' Court stay order was accordingly removed. Second, on Mr Kay’s application to revoke or vary the intervention order, the application was refused on the basis that he did not have leave under s. 21 of the Supreme Court Act to make the application. Further, the court said that no new facts and circumstances or sufficient grounds were shown in the application. Third, Ms McIntosh’s application to vary the intervention order was withdrawn.
The consequence of these orders of the Magistrates' Court of 10 September 2003 is that the Magistrates' Court stay order of June 1996 no longer bars Mr Kay’s application filed on 14 May 1996 to vary or revoke the Magistrates' Court intervention order. The court extract makes it clear, however, and it is correct, that Mr Kay must still seek and obtain from this court leave pursuant to s. 21 of the Supreme Court Act to continue the May 1996 application to vary or revoke the intervention order, or to bring a fresh application to this end. An application to this court for this leave must show that the application to the Magistrates' Court is not an abuse of process. Having regard to the terms of the Crimes (Family Violence) Act 1987, this requires Mr Kay to satisfy this court that he has material to place before the Magistrates' Court which would arguably warrant the revocation or variation of the intervention order. It might be supposed that Mr Kay could satisfy these requirements by demonstrating that he has modified his behaviour to such an extent that the court might feel comfortable that he no longer presents a risk to his ex-wife and children or to their well-being.
I should mention that the present application before me was explained by Mr Kay as a complaint about the injustice he suffered when the Magistrates’ Court on 10 September rejected his application for revocation or variation of the intervention order made so many years ago. It is not altogether clear what, if any, was the procedural basis for his application. Nevertheless, as a litigant in person, I was content to address the substance of his complaint.
Mr Kay has, on my invitation, converted his application now to an application for leave under s. 21 of the Supreme Court Act. I invited him to place before me material showing why the continuance of his 1996 application to vary or revoke the intervention order or a fresh application to this end are not or would not be an abuse of process. He has referred me to the material which he has already filed, material which I have anxiously read. To my mind, most, if not all, of the material upon which he relies is entirely irrelevant to the application which he proposes to bring. None of it gives me any confidence that the application which he would continue or commence for the revocation or the variation of the 1995 intervention order could meet with any success, or indeed, that it is brought on any proper basis. I have also had regard to what Mr Kay told me from the bar table. Having regard to the clear view which I formed from this material, I did not take steps to give Ms McIntosh notice of the application as might otherwise have been appropriate.
Accordingly, I refuse the application brought pursuant to Supreme Court Act s. 21 for leave to continue the plaintiff’s 1996 application in the Magistrates’ Court or to bring a fresh application in the Magistrates’ Court to revoke or vary the intervention order of 5 May 1995. The application is dismissed.
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Kay
v
McIntosh
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