LL v Mm

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

GENERAL LIST

S CI 2017 03619

LL	Plaintiff
v
MM	Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	26, 27 November 2018 and 26 February 2019
DATE OF JUDGMENT:	21 March 2019
CASE MAY BE CITED AS:	LL v MM
MEDIUM NEUTRAL CITATION:	[2019] VSC 174

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PRACTICE AND PROCEDURE — Application for Extended Litigation Restraint Order —Marriage ended — Applications for Interim Family Violence Protection orders — Parenting orders — Applications for reversal or variation of parenting orders— Whether vexatious proceedings — Discretion — Relevant considerations — Family Violence Protection Act 2008; Vexatious Proceedings Act 2014 ss 16, 17, 18, 19, 20, 27.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr J Paterson	Bentleys Barristers and Solicitors
For the Defendant	Self-represented

HIS HONOUR:

The plaintiff, LL, seeks an extended litigation restraint order against the defendant, MM, under the Vexatious Proceedings Act 2014 (‘the Act’). The order sought would prevent the defendant from continuing or commencing any legal proceedings against the plaintiff in any Victorian Court or Tribunal. The plaintiff must obtain leave under s 16(3) to apply for that order.

Because this judgment requires recording aspects of applications under the Family Violence Protection Act 2008, I consider that the parties should be given pseudonyms in order to achieve the purpose of s 166 of that Act, despite the fact that s 166 may not in this instance be strictly binding. In so ordering I have applied the reasoning in previous decisions of this Court.[1] The pseudonyms will be ‘LL’ for the plaintiff and ‘MM’ for the defendant.
[1]YY v ZZ [2013] VSC 743, [5]-[14](Cavanough J), see also s 121 of the Family Law Act 1975 (Cth).

The plaintiff made four affidavits in support of his application and the defendant, who represented herself, cross-examined him on the first three. The defendant did not file any affidavits or give oral evidence.

LL and MM were married in 2010, and had two children. In 2013 the couple encountered matrimonial difficulties and are now divorced. Their difficulties led to the defendant obtaining an interim intervention order (‘interim IVO’) against the plaintiff from the Magistrates’ Court on 27 December 2013. Since this date, they have been parties to many court proceedings; in the Magistrates’ Court for intervention orders, in the Federal Circuit Court and later Family Court for parenting orders, and now in this Court.

The originating motion seeks the following orders:

…
An order pursuant to sections 16, 18, 19 and 20 of the Vexatious Proceedings Act 2014 that the defendant… must not without leave of the Supreme Court of Victoria do the following against plaintiff:
(a)Continue any proceedings (whether civil or criminal) in any of the following courts or tribunals:
(i)        The Supreme Court;
(ii)       The County Court;
(iii)      The Magistrates’ Court;
(iv)      The Children’s Court;
(v)       The Victorian Civil and Administrative Tribunal;
(vi)      The Victims of Crime Assistance Tribunal
(a)Commence any legal proceedings (whether civil or criminal) in any of the following courts or tribunals against plaintiff:
(i)        The Supreme Court;
(ii)       The County Court;
(iii)      The Magistrates’ Court;
(iv)      The Children’s Court;
(v)       The Victorian Civil and Administrative Tribunal;
(vi)      The Victims of Crime Assistance Tribunal

The grounds relied upon are that:
The defendant has:
(a) persistently; and
(b) without any reasonable ground,
Commenced or conducted vexatious legal proceedings.

It is necessary to set out the procedural history upon which the plaintiff relies to substantiate his application for an extended litigant restraint order.

Procedural History

The proceedings commenced and continued by the defendant that the plaintiff relies upon can be summarised as follows: three applications for interim IVOs in the Magistrates’ Court and four applications to reverse Federal Circuit Court parenting orders. The relevant details of these applications will be set out in chronological order.

The first interim IVO

On 27 December 2013 the defendant obtained an interim IVO from the Magistrates’ Court. This order was served on the plaintiff that evening by police officers at the family home. The interim IVO provided that, inter alia, the plaintiff was to leave the family home and was not to contact the defendant or their children.[2] This last part of the order, pertaining to the children, appears to have been an error and was later deleted.
[2]Joint Court Book, 34 (‘CB’).

In seeking the interim IVO, the defendant alleged that: after a dispute about money there was ‘grabbing and pulling’ and the plaintiff transferred all money out of their joint account; that the plaintiff used force to prevent the defendant from using her phone to transfer money from their business account; that the plaintiff was verbally aggressive and made financial threats; that the plaintiff threatened to fight for custody of their children, and that the plaintiff sent her abusive emails and messages.[3]
[3]CB 36.

On 2 January 2014, the plaintiff issued an application to revoke the interim IVO, and it was modified to allow him to return to his children at the home.[4] The hearing of the defendant’s intervention order application was adjourned to 20 January 2014 and was then fixed for 7 March 2014 with the defendant to file evidence in support of her application by 8 February.
[4]CB 20-22.

The plaintiff relied on an SMS text from the defendant on 27 December 2013 that threatened to call the police and falsely report that he had breached the first interim IVO, and another sent later in December asking if he wanted to pick up the children, which if he had, would have breached the interim IVO.

The defendant did not file any evidence in support of her application and on 7 March 2014 elected to withdraw it.[5]
[5]CB 191.

The plaintiff’s Federal Circuit Court proceeding

After being served with the first interim IVO on 27 December 2013, the plaintiff urgently applied to the Federal Circuit Court for an order that his children be placed on an Airport Watchlist and not be removed from Australia. He sought this order because of his fears that the defendant would return to her home country with their children, and that if this occurred there would be no legal avenue for compelling the children’s return.[6] The order was granted by a Judge who later ordered that the children’s passports be held at the Court. There was evidence that prior to the return of the first interim IVO, the defendant had rented a car with the booking stating that it was to be returned to the International Departures Terminal at Melbourne Airport.
[6]CB 16, 188.

On 7 January 2014, the matter was heard before a Duty Judge who made orders extending the Airport Watchlist orders and directing that the parties share parental responsibilities and restraining the parties from moving the children from the Melbourne metropolitan area.[7]
[7]CB 130.

On 23 January 2014, interim orders were made by consent which provided that the children were to live with both parties, but primarily the defendant.[8] The parties were also ordered to attend a psychologist for the preparation of a Family Report,[9] which was later released.[10]
[8]CB 130.
[9]CB 75.
[10]CB 133.

After another hearing on 12 May 2014, the Federal Circuit Court proceeding was listed for a final hearing on 27 January 2015. The proceeding, which was commenced by the plaintiff for the purpose of preventing his children leaving the country, had evolved into a parental custody dispute.

The second interim IVO

On 15 December 2014, the defendant attended the Magistrates’ Court and obtained a second interim IVO.[11] In seeking it, the defendant alleged that the plaintiff: was emotionally abusive and would yell at her in front of the children at custody changeover; was hacking her password protected accounts and intercepting correspondence; accused her of fraud and stealing from government agencies; cancelled childcare days without her consent; had not renewed the motor vehicle registration so that she had to use public transport to take the children to day care; accused her of being a bad mother and negligent towards her children, and having refused to pay child support.[12] She also restated the allegations made by her in obtaining the first interim IVO.
[11]CB 23, 72, 193.
[12]CB 72.

In December 2014, the plaintiff applied to have the second interim IVO set aside. The plaintiff’s affidavit stated that the Magistrate refused the application, outlining that ‘if [the Magistrate] believes me now it is as if he didn’t believe the defendant anymore’.[13] The proceeding was listed for hearing on 9 February 2015.
[13]CB 193.

The Federal Circuit Court hearing and judgment

The parental custody dispute was heard in the Federal Circuit Court from 27–30 January 2015.[14] The parties were unrepresented, although an Independent Children’s Lawyer appeared to represent the interests of the parties’ children.
[14]CB 285.

On 3 February 2015, the Judge delivered judgment and made parenting orders which granted shared parental responsibility, which however were more favourable to the plaintiff as the children were predominantly to live with him.[15] In the reasons for decision, the Judge addressed the defendant’s grounds for the second interim IVO and outlined how her own evidence called into question the veracity of her allegations against the plaintiff. The Judge found that the basis of the defendant’s application for the second interim IVO was not substantiated in the evidence she gave during the hearing. She made a number of findings suggesting that she found the defendant’s evidence to be unreliable. For instance, the Judge stated that:

When the Mother was cross examined by the Independent Children’s Lawyer it became quite clear that, even on her own evidence, the Father was not screaming and that there had been a significant exaggeration in her application and I regard that matter as most serious because these are applications before a court. That, combined with many other matters, makes me concerned that the Mother is prone to exaggeration and to making dramatic statements generally and possibly to assist her in achieving her desired outcome in a case. What is notable is that at those changeovers the Father says that the changeovers took place relatively without incident.

[15]CB 120.

The Judge also made a number of other findings to which I should refer. First, that the plaintiff had placed the defendant under financial stress, and at times inappropriately so, and to that extent that counted to his detriment in the proceeding. Her Honour also found that the significant factor of the family violence on 12 March 2014 did not occur. Her Honour also referred to the plaintiff’s conduct as demonstrating some financially-controlling behaviour, but not of such magnitude that it changed her ultimate view on the appropriate parenting arrangements. Her Honour also found that there was nothing to suggest that either of the children would come to any direct physical harm from the parties.

The second interim IVO - delays

According to the plaintiff’s affidavit, on 9 February 2015 at a hearing in the Magistrates’ Court, the Independent Children’s Lawyer recommended that the defendant withdraw her IVO application due to the findings of the Federal Circuit Court Judge,[16] but she did not do so. The proceeding was set down for hearing in May 2015.
[16]CB 24.

The contest hearing commenced in May but was not completed, for reasons not expressed, and was adjourned to 14 July 2015. The matter was again adjourned to 24 November 2015, due to the presiding Magistrate being unwell. On this date the Magistrate was unwell again so the matter was further adjourned to 7 June 2016.

The plaintiff’s interim IVO

In June 2015, the plaintiff attended the same Magistrates’ Court that had granted the defendant the second interim IVO and applied for and obtained an interim IVO against the defendant. The plaintiff saw the defendant shooting a firearm on a segment of a television program a few days previously.[17] The segment covered an ‘anti-terrorism training camp’ held near Melbourne, and showed the defendant firing a semi-automatic pistol three times, and stating that her reason for attendance was ‘to protect [her] kids’. This, combined with purported psychological issues, were the bases of the plaintiff’s application.[18]
[17]CB 195.
[18]CB 377-378.

A hearing for this application was combined with the further hearing of the defendant’s second IVO application on 7 and 8 June 2016 as is discussed below.

The defendant’s first application to reverse the parenting orders

On 1 February 2016, at a mention hearing in the Federal Circuit Court, the defendant filed an affidavit seeking reversal of the parenting orders. The Judge stated that she would hear a formal application on 22 April 2016.[19]
[19]CB 26-7, 197.

At that hearing, the Judge dismissed the application on the basis that there was no change in circumstances sufficient to warrant revising the parenting orders.[20]
[20]CB 460.

The second interim IVO - hearing

At the 7 June 2016 hearing relating to the defendant’s second interim IVO, the Magistrate ruled that the plaintiff could not cross-examine the defendant as he was unrepresented.[21] The defendant’s evidence was therefore uncontested. The Magistrate granted the interim IVO, ordering that the plaintiff not commit family violence against the defendant for a period of 12 months.[22] The Magistrate deemed it unnecessary to make similar orders for the children.[23]
[21]CB 365-366.
[22]CB 375.
[23]Ibid.

The plaintiff’s interim IVO – hearing

On 8 June 2016, the same Magistrate heard the plaintiff’s application for an interim IVO against the defendant, and ordered that she be prohibited from committing family violence against him, and prohibited from getting another person to act on her behalf in a manner that would constitute family violence.[24] The Magistrate rejected the plaintiff’s claim that he had been economically abused by the defendant and was not satisfied on the balance of probabilities that he had been assaulted by her. But, the Magistrate found the plaintiff’s allegation of emotional abuse made out including that she had made serious allegations against him that were not proved. The Magistrate found that the defendant ‘displayed a reluctance to reveal her neuropsychological issues in both the Federal Court and indeed in this court’[25] and had sought to exaggerate some of her evidence.[26]
[24]CB 444.
[25]CB 442.
[26]CB 443.

The defendant’s second interim IVO – the plaintiff’s appeal to the County Court

The plaintiff appealed the Magistrates’ Court second interim IVO of 7 June 2016 to the County Court.

The appeal was heard on 15 and 16 December 2016. Both parties were represented by counsel, and both gave evidence and were cross-examined. The County Court Judge noted that the application was being made on behalf of the defendant and her two children. His Honour summarised her allegations as being first that the plaintiff made false accusations of fraud against her to Government agencies with a view to harassing her and causing her to be the subject of investigations. The allegations of fraud made against the defendant appear to have included aspects of her dealings with the Australian Taxation Office, the Child Support Agency, Centrelink and the Ministry of Human Services.[27]
[27]Transcript of Proceedings, MM v LL (County Court of Victoria, 15-16 December 2016), 10 (‘T2’).

The second category of allegations related to evidence of alleged abuse, yelling and screaming at the time of changeover of the children. The evidence from the defendant was that abuse continued in the form of SMS messages.

The third category of allegations was that the plaintiff interfered with the defendant’s ability to work by manipulating the child care arrangements. Another allegation involved an incident outside his employment where the defendant alleged that a confrontation occurred between them which required her to jump out of a car when it was moving.

The fourth category of allegations focused on the incidents of alleged physical contact and assaults, although of a relative minor nature. Three incidents were alleged, between November 2013 and January 2014.

Then there were the defendant’s allegations of economic abuse by the plaintiff manipulating their financial relationship.

His Honour accepted there was a conflict between the parties’ evidence and that it was a case of ‘word against word’. He noted that, in this type of case, there were so many incidents that occurred, and that parties were normally keen to give a very full explanation when asked a question.[28]
[28]T2 228.

The Judge described the plaintiff’s answers to the allegations as ‘compelling and convincing’.[29] He preferred his evidence where there was a conflict and was not satisfied of the matters in issue on the basis of the defendant’s evidence. He said that even if particular parts of the conduct did constitute family violence, he could not conclude that such conduct was likely to continue.[30]
[29]T2 229.
[30]T2 230.

He noted that there had been no allegation of any physical conduct since the parties separated, and that he had real concerns that even if he thought there was a likelihood of the continuation of some minor conduct that it would justify the making of an individual order.[31] The effect of his order was that there was no basis for making any order under the Family Violence Protection Act.[32] The orders imposed at the Magistrates’ Court on 7 June 2016 were set aside and no order was made with respect to the affected family members, being the defendant and the two children.
[31]T2 230-231.
[32]T2 231.

The third interim IVO application

On 27 April 2017, the defendant attended the same Magistrates’ Court that had granted her the second interim IVO, and the plaintiff his interim IVO, and applied for another interim IVO against the plaintiff.[33] The grounds asserted by the defendant were that the parties’ children were saying that the plaintiff was to take them to live on the Gold Coast, contrary to the parenting orders, and that the plaintiff was telling the children’s school and kindergarten that she was crazy, negligent towards their children, would harm them and that she had mental health issues.[34] No interim IVO has been made resulting from that third application.
[33]CB 156.
[34]CB 158.

Since that time, the third application has been repeatedly adjourned. Initially listed for hearing on 24 October 2017, the matter was adjourned to 5 May 2018 to give the defendant’s lawyer more time to prepare his application. At a hearing on 26 March 2018, the final hearing was adjourned 20 July 2018 to allow the defendant to seek representation. By 20 July 2018, the defendant had not filed any material in support of her claims, and the application was further adjourned to 25 March 2019.

The plaintiff’s interim IVO extension

On 26 May 2017, the plaintiff applied for and was granted an extension of the intervention order of 8 June 2016 against the defendant.[35] The proceeding continued to be adjourned at least until 26 March 2018.[36]
[35]CB 201.
[36]CB 776.

The second application to vary the parenting orders

On 13 September 2017, the parties attended a Federal Circuit Court hearing before a Judge who ordered, inter alia, that the defendant pay the plaintiff child support. The Court ordered that the proceeding be transferred to the Family Court, citing chronic conflict, the size of the file, the issue of the children travelling overseas, the defendant’s attempts to reopen the substantive parenting arrangements and this litigation restraint proceeding as reasons for the case no longer being appropriate for the Federal Circuit Court.[37]
[37]CB 458-461.

The plaintiff stated that, during this hearing, the defendant unsuccessfully attempted to reverse the parenting orders, although little detail was provided of that application.[38]
[38]CB 202.

The third application to vary parenting orders

On 21 November 2017, the parties attended the Family Court for a hearing before a Senior Registrar. The Senior Registrar issued orders which seem to provide directions to the parties for the resolution of a dispute regarding child support.[39]
[39]CB 467.

The defendant filed an affidavit which claimed that the plaintiff had been acting inappropriately and had breached Federal Circuit Court orders by understating his income and thus failing to pay appropriate child support.[40] Upon that basis the defendant sought variation or reversal of the parenting orders of 3 February 2015.[41] The plaintiff’s affidavit stated that the Senior Registrar determined that there was an insufficient change of circumstance to warrant variation of the orders and that the defendant had filed an affidavit rather than an application.[42]
[40]CB 475-485.
[41]CB 483.
[42]CB 202.

The fourth application to vary parenting orders

On 17 December 2017, the plaintiff was served with another application to vary the parenting orders filed in the Family Court.[43] A mention hearing was listed for 3 December 2018.[44] There is no evidence of what happened at it.
[43]CB 182.
[44]Transcript of Proceedings, LL v MM (Supreme Court of Victoria, 26-27 November 2018) 23 (‘T’).

The plaintiff submitted that the defendant’s four applications to reverse the parenting orders of 3 February 2015 were vexatious and were commenced and continued with no proper basis, without reasonable grounds and were an abuse of process.

The defendant’s conduct in this Supreme Court proceeding

The plaintiff also relied on the defendant’s conduct in this proceeding including not appearing on its first return, sending a letter attaching a junior doctor’s letter stating that she was unwell and unable to attend the hearing on 10 May 2018 and then on 20 June 2018 applying for an adjournment on inadequate material, although the adjournment was granted.

Relevant law
Legislative basis of the plaintiff’s application

The plaintiff seeks that an extended litigation restraint order be made against the defendant under s 17 of the Act. He also seeks leave to make that application under s 16 of the Act. Those sections are as follows:

16 Application for extended litigation restraint order
(1)Subject to subsection (2), any of the following persons may apply to a Court or VCAT for an extended litigation restraint order against a person—
(a) the Attorney-General;
(b) if the person has commenced or conducted a vexatious proceeding against another person, that other person;

(c) a person with a sufficient interest in the matter.
(2) A person referred to in subsection (1)(b) or (c) must not apply for an extended litigation restraint order—
(a) without leave of the Court of the jurisdiction in which the order is sought; or
(b) if the order is sought in respect of proceedings in VCAT, without leave of VCAT.

(3)A Court or VCAT may grant leave to apply for an extended litigation restraint order if the Court or VCAT is satisfied that—
(a) there is merit in the application; and
(b) the making of the application would not be an abuse of process.

17       Court or VCAT may make extended litigation restraint order
(1) A Court or VCAT may make an extended litigation restraint order against a person if the Court or VCAT is satisfied that the person has frequently commenced or conducted vexatious proceedings—
(a)        against a person or other entity; or
(b)       in relation to a matter.
Note
The Magistrates' Court may also make an extended litigation restraint order that relates to intervention order legislation under section 19.
(2) In determining whether it is satisfied of the matters specified in subsection (1), a Court or VCAT may take into account any matter it considers relevant, including but not limited to any of the following—
(a) a proceeding commenced or conducted by the person, or an entity controlled by the person, in any Australian court or tribunal;
(b) the existence of an order made by an Australian court or tribunal against the person, or an entity controlled by the person, including—
(i)        a litigation restraint order; or
(ii)        an acting in concert order; or
(iii)      a vexatious proceeding order;
(c) any other matter relating to the way in which the person conducts or has conducted litigation.

(3) A Court or VCAT may take into account a matter referred to in subsection (2) that relates to a proceeding commenced or conducted before, on or after the commencement of this section.

(4) A Court or VCAT may make an extended litigation restraint order—
(a) on its own motion; or
(b) on an application under section 16.
18Application for extended litigation restraint order – intervention order legislation
(1)Subject to subsection (2), any of the following persons may apply to the Magistrates' Court or the Children's Court for an extended litigation restraint order that relates to intervention order legislation against a person—
(a)the Attorney-General;
(b)if the person has commenced or conducted a vexatious proceeding under intervention order legislation against another person, that other person;
(c)a person with a sufficient interest in the matter.
Example

For the purposes of an extended litigation restraint order that relates to intervention order legislation, a person with a sufficient interest in the matter may include a police officer or a guardian or family member who seeks to apply for an intervention order under intervention order legislation on behalf of a person.
(2)A person referred to in subsection (1)(b) or (c) must not apply for an extended litigation restraint order without leave of the Magistrates' Court or the Children's Court (as the case requires).
(3)The Children's Court or the Magistrates' Court may grant leave to apply for an extended litigation restraint order that relates to intervention order legislation if the Court is satisfied that—
(a) there is merit in the application; and
(b) the making of the application would not be an abuse of process.
19Magistrates’ Court or Children’s Court may make extended litigation restraint order –intervention order legislation
(1)The Magistrates' Court or the Children's Court may make an extended litigation restraint order that relates to intervention order legislation against a person if the court is satisfied that the person has frequently commenced or conducted vexatious proceedings under intervention order legislation—
(a)against a person; or
(b)in relation to a matter.

(2)In determining whether it is satisfied of the matters specified in subsection (1), the Magistrates' Court or the Children's Court may take into account any matter it considers relevant.
(3)The Magistrates' Court or the Children's Court may make an extended litigation restraint order that relates to intervention order legislation—
(a)on its own motion; or
(b)on an application under section 18.

Note
See section 154 of the Family Violence Protection Act 2008 or section 111 of the Personal Safety Intervention Orders Act 2010 in relation to costs for a proceeding for an order made under this section.
20Content of extended litigation restraint order made by Supreme Court
(1)An extended litigation restraint order made by the Supreme Court 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 a proceeding in a Victorian court of tribunal against a person or other entity named in the order, or in respect of a matter described in the order, without leave of —
(i)the Supreme Court; or
(ii)the Victorian court or tribunal in which the proceeding is being heard;

(b)commence a proceeding in a Victorian court or tribunal against a person or other entity named in the order, or in respect of a matter described in the order, without leave of—
(i)the Supreme Court; or
(ii)the Victorian court or tribunal in which the proceeding is to be commenced.

(2)An extended litigation restraint order made by the Supreme Court may include any other direction or order that the Supreme Court considers appropriate.
(3)Without limiting subsection (2), the Supreme Court may direct that the person who is subject to the order may commence or continue a specified proceeding in a Victorian court or tribunal.
27Duration of extended litigation restraint order
(1)An extended litigation restraint order, including an order that relates to intervention order legislation, remains in force for the period specified in the order.
(2)A Court or VCAT may specify that an order referred to in subsection (1) remains in force indefinitely.
(3)A Court or VCAT may extend the duration of an extended litigation restraint order referred to in subsection (1) if the Court or VCAT considers it is in the interests of justice to do so.

Key definitions include the following:[45]
[45]Vexatious Proceedings Act 2014, s 3.

proceeding means any matter in an Australian court or tribunal, whether civil or criminal, including—
(a) any cause, matter, action, suit, proceeding, trial, complaint or inquiry of any kind within the jurisdiction of an Australian court or tribunal;
(b) any proceeding (including any interlocutory application) taken in connection with or incidental to a proceeding before an Australian court or tribunal;
(c) any appeal, review or other challenge, including an application for judicial review or an application for leave to appeal.

vexatious application includes the following—
(a) a proceeding that is an abuse of the process of a court or tribunal;
(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c) a proceeding commenced or pursued without reasonable grounds;
(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

Applicable legal principles

The overarching principles applicable to granting orders against vexatious litigants were summarised by Perram J in Official Trustee in Bankruptcy v Gargan (No 2)[46] as follows. The making of an order against someone on the basis that they are a vexatious litigant is an extreme remedy. It serves to shield the public and the court. The power is not enlivened by a single occurrence of a vexatious proceeding. Rather the court’s power or discretion is found in the commencement by the litigant of proceedings which lack reasonable grounds and where the litigant’s institution of such proceedings is habitual and persistent. It may be useful for the court to determine whether the issues brought to the court are hopeless or devoid of merit. It is also relevant whether the litigant has failed or refused to understand the principles of the finality of litigation. The quality of repetition is found where the commencement of proceedings occurs as a matter of course. The want of reasonable grounds, habitual and persistent institution are to be gauged objectively. The concept of the proceeding must be viewed broadly and includes both collateral applications within a proceeding and appeals. Proceedings that are commenced before bodies which are not courts may throw light on the vexatious nature of the proceedings before the court. Once the court concludes that its power to prevent a litigant from commencing or pursuing proceedings has been enlivened, it possesses a broad discretion to decide whether to grant a restraint order, but the exercise of the power is primarily directed at the protective purpose. The question of the litigants’ insight will be relevant as well as the manner in which they conduct themselves and their affairs generally.
[46][2009] FCA 398.

Parties’ Submissions
The plaintiff’s submissions

The plaintiff submitted that over the last four years the defendant has commenced seven proceedings against him which were vexatious, and that she has therefore ‘frequently commenced or conducted vexatious proceedings’ within the meaning of s 17(1) of the Act. His arguments regarding each allegedly vexatious proceeding are detailed below.

He made extensive criticisms of the matter in which the Magistrates’ Court had dealt with the applications for interim IVO orders and contrasted that with the way in which the County Court dealt with the appeal against the second IVO. The defendant responded that the plaintiff liked decisions when they went his way but not when they did not.

The plaintiff made the following submissions concerning the individual proceedings. He argued that the defendant’s first interim IVO application was vexatious and was commenced without reasonable grounds, as evidenced by her failure to file any supporting evidence.[47] This application was eventually withdrawn 3 months after it was filed.[48] He sought to draw an inference from the failure to file evidence that there was no basis for the application.[49] Alternatively, he submitted that it was an abuse of process, or commenced for a wrongful purpose – that purpose being to prevent him from stopping the defendant absconding with the children to an overseas country.[50]
[47]T 131; Submissions of the Plaintiff, 26 November 2018, [23]-[24] (‘Plaintiff’s Submissions’).
[48]T 162.
[49]T 163.
[50]Plaintiff’s Submissions [24].

The plaintiff submitted that the defendant’s second interim IVO application was also vexatious as it was commenced for a collateral purpose, being made either in retaliation for him issuing subpoenas in the Federal Circuit Court,[51] or in order to assist her parenting application heard in January 2015.[52] He described the second application as either an abuse of process or as commenced without reasonable grounds. This was demonstrated by the second order being set aside on appeal to the County Court where the Judge, preferring the evidence of the plaintiff, found that there was no evidence to support the order.[53]
[51]T 132.
[52]T 137-138.
[53]T 163, 171-172.

The plaintiff also attacked the defendant’s third interim IVO application as vexatious. However, no interim IVO has been made as a result of this third application.

The plaintiff again suggested that there was an overwhelming inference that the third interim IVO application was made for a collateral purpose, namely to dissuade him from attempting to prolong the interim IVO that he had obtained against her. Alternatively, the application was either an abuse of process or was commenced without reasonable grounds. The application was made in April 2017 but no orders have been made, and the next hearing is on 25 March 2019. The defendant has not filed any affidavits in support of her third application.

The plaintiff also argued that the defendant’s four attempts to reverse or challenge the parenting orders were vexatious, as they were commenced and continued with no proper basis and with no reasonable grounds, and were an abuse of the processes of the Federal Circuit Court.[54] The plaintiff said that there was no basis for her applications for reversals of the Federal Circuit Court orders, but she has persisted in making them.
[54]Plaintiff’s Submissions [57].

He submitted that in none of these applications did the defendant submit material adequate to constitute reasonable grounds for making an application,[55] invoking the principle of Rice v Asplund.[56] While not directly related to vexatious proceedings, that decision of the Full Family Court establishes the need for a material change in circumstances to have occurred before parenting orders can be revisited. The plaintiff submitted that each of the defendant’s challenges to the parenting orders failed to meet even this first threshold test.[57] He submitted that the defendant was made aware of the need to show changed circumstances in the hearing and determination of her first application to vary the parenting orders.[58] He submitted that the defendant had studied law in both Australia and overseas and should have been able to follow this basic legal principle in making her applications.[59]
[55]T 142-143.
[56](1979) FLC 90-725.
[57]T 147.
[58]T 148.
[59]T 167-168.

Finally, as previously mentioned, the plaintiff argued that the defendant’s conduct in this proceeding in the Supreme Court, in which she required an adjournment because of a medical appointment, added to the overall impression of vexatious conduct.[60] He added that the doctor who provided medical evidence was not an Australian doctor, and no sworn evidence was provided.
[60]T 152-153.

The plaintiff addressed the issue of the frequency of the proceedings that he said were vexatious. He argued that for vexatious proceedings to be frequent there did not have to be many proceedings commenced. In Potier v Attorney-General for New South Wales,[61] Leeming JA explained that ‘each of those considerations favour “frequently” being a relatively low threshold’, and that ‘frequently’ is ‘not to be assessed merely by an arithmetic calculation.’[62] In Attorney-General v Knight[63] ‘frequency’ was described as a relative concept, informed by the nature of the proceedings and quality of vexatiousness in any given case. In Teoh v Hunters Hill Council (No 8)[64], the Court stated that the word ‘frequently’:

Does not mean that the test can be satisfied only if a person institutes successive vexatious proceedings at short intervals. Nonetheless, a pattern of repeated vexatious applications within a limited period of time may be an important consideration…. This is particularly the case where a litigant repeatedly challenges a decision in a manner that demonstrates an unwillingness or inability to accept that the challenge has been rejected and that there are no grounds for further challenges.[65]

[61](2015) 89 NSWLR 284.

[62]Ibid [117]-[118], quoting Viavattene v Attorney General(NSW) [2015] NSWCA 44, [49].

[63][2016] VSC 488, [48]-[50].

[64][2014] NSWCA 125 (‘Teoh’).

[65]Ibid [49].

The plaintiff also relied on Attorney General for the State of Victoria v Weston,[66] in which Whelan J applied the following passage from the New Zealand decision of Brogden v Attorney-General:[67]

A litigant may be said to be persisting in litigation though the number of separate proceedings he or she brings is quite small if those proceedings clearly represent an attempt to re-litigate an issue already conclusively determined against that person, particularly if this is accompanied by extravagant or scandalous allegations which the litigant has no prospect of substantiating or justifying. The Court may also into account the development of a pattern of behaviour involving a failure to accept an inability in law to further challenge decisions in respect of which the appeal process has been exhausted, or attacking a range of defendants drawn into the widening circle of litigation, solely because of an association with the defendant against whom a prior proceeding has failed.[68]

[66][2004] VSC 314 (‘Weston’).

[67][2001] NZCA 208, quoted at [21] of Weston.

[68]Ibid [21].

The plaintiff submitted that, although the number of proceedings instituted by the defendant might be considered low, he has had to appear in Court on about 63 days.[69] By way of analogy he referred to the case of Bathis-Brown v Woods,[70] in which there were only three proceedings instituted by the respondent, but where the Court nevertheless made an order against the respondent under s 8 of the Vexatious Proceedings Act 2008 (NSW). He submitted that that decision demonstrated that a small number of proceedings can amount to vexatious conduct if they occupy a large amount of time.[71]
[69]T 161.
[70][2015] NSWSC 1194 (‘Bathis-Brown’).
[71]T 161.

The plaintiff also submitted that the relevant question is whether the proceedings themselves are vexatious, rather than whether they were instituted vexatiously.[72] The test under s 17 is an objective and not a subjective one,[73] citing Teoh.[74] Of particular importance in determining whether a vexatious proceedings order should be made is the likelihood of the conduct or similar conduct reoccurring.[75]
[72]T 193.
[73]T 184.
[74]Teoh [55].
[75]T 190.

The plaintiff also made submissions regarding the relevance of the family violence context in which the interim IVOs had been made,[76] seeking to allay concerns that the imposition of an extended litigation restraint order binding the defendant could delay her in making applications seeking protection from family violence. He argued that the lack of a basis for the interim IVO obtained by the defendant and the lack of success of some of the past applications meant that this possibility should not ‘weigh heavily’ on the Court.[77] Secondly, he submitted that steps could be taken to expedite the defendant’s application for leave to seek an intervention order with the result that there would be ‘very, very little delay’, though he did not explain how that could occur in any detail.[78] Thirdly, he pointed again to Bathis-Brown’s case, which involved vexatious intervention orders, where such concerns about delay caused by a litigation restraint order were not given any weight.[79] Anyone who was subject to a litigation restraint order would face the possibility of delay in applying for an intervention or other court order, not just the defendant.[80] Sections 18 and 19 of the Act, which contemplate the making of an extended litigation restraint order against intervention orders, strengthen the inference that little weight should be given to the delay that a litigation restraint order would cause in making interim IVOs in a family violence context.

The defendant’s submissions

[76]T 129-130.

[77]T 130, T 175.

[78]T 130.

[79]T 180-181.

[80]T 174.

The defendant represented herself during the proceeding, and did not make formal written submissions, nor did she give evidence. Nevertheless, her oral submissions consisted almost exclusively of challenges to the plaintiff’s version of events. Her cross-examination of him contained many statements detailing her account of events. As these were not evidence they cannot be given any weight in themselves. However, to the extent that the defendant’s submissions reflected answers given to her by the plaintiff in cross-examination, or other material in evidence, or inferences that could be drawn from evidence, I will summarise them below.

The defendant contended that the plaintiff has himself made numerous court applications, including at least three Federal Circuit Court matters, issued seven subpoenas,[81] and applied for and obtained his own interim IVO, all of which have taken up a large amount of both of their time and resources. He has accused her of assault, breaching an intervention order, contempt of court, damaging his property, child abuse, giving false information to government departments, possessing stolen property, stealing, making threats against him and defamation.[82] She said that he had visited their children’s school and intimated to the teachers that she has Munchausen’s syndrome,[83] and that he has written to various government agencies accusing her of misstating her income and ability to work.[84] She said that he has objected to every decision of the Child Support Agency concerning them.[85] She contended that in every proceeding he makes fresh allegations against her.[86] The Federal Circuit Court concluded that he had engaged in financially controlling behaviour.
[81]T 215.
[82]T 80-82.
[83]T 73-74.
[84]T 51-52.
[85]T 215.
[86]T 212.

The defendant contested the plaintiff’s account of her behaviour. She submitted that her actions were more innocent when viewed in context and pointed to instances where she said that she had been conciliatory and helpful, particularly in respect of parenting issues. She submitted that the variations to the parenting orders in the first interim IVO, which allowed the plaintiff to see his children, were made with her consent.[87] She also submitted that she offered numerous times to pay for various expenses of the children, offers which the plaintiff continuously rebuffed.[88] But, the plaintiff said that none of such offers had turned out to be genuine. She submitted that she had attempted numerous times to resolve matters outside of court, and the plaintiff admitted that he could not remember the last time he had taken up such an offer.[89] He responded that this was because he long ago gave up on actually being able to do so.
[87]T 41-42.
[88]T 62.
[89]T 100.

The defendant pointed out that the plaintiff could not remember signing any papers concerning giving the children citizenship of an overseas country, and that without such paperwork or other documentation she could not have taken them to that country.[90] Accordingly, the plaintiff’s characterisation of her reasons for obtaining the first interim IVO lacked sense. Furthermore, she had not, as he contended, exhausted all her avenues of appeal in the Federal Circuit Court, and in fact she had not lodged any ‘appeals’, but rather merely applied to vary parenting orders.[91]
[90]T 75-76.
[91]T 31.

She submitted that she had never intended the children to be covered by the first interim IVO, but that they had been included in error,[92] a point strengthened by the plaintiff’s statement in his own affidavit that ‘apparently, this Magistrate remembered this case and kids were not to be on that order’.[93]
[92]T 209.
[93]CB 19.

The defendant’s second group of submissions consisted of detailing the plaintiff’s own conduct both as part of, and outside of, their various proceedings against one another. This was presumably to show that her actions were justified or reasonable, or as a general consideration to be taken into account in the exercise of the Court’s discretion under the Act.

The defendant says that the plaintiff has complained about the way in which Magistrates have heard the interim IVOs[94] and has made formal complaints about them.
[94]T 35-37.

The plaintiff’s application to the Magistrates’ Court

At trial, it became clear that the plaintiff had applied to the Magistrates’ Court for a litigation restraint order against the defendant in September 2017.[95] The Magistrate heard and refused his application for leave to apply for a litigation restraint order at an ex parte hearing on 25 September 2017. That hearing was referred to by the plaintiff at trial, although no copy of the Magistrate’s order was in evidence. I ordered its production,[96] as well as a further listing of the case to enable informed submissions about it. I invited the parties to file any further affidavits about the significance of the plaintiff’s unsuccessful Magistrates’ Court application if they wished. The plaintiff filed an affidavit and the parties then made submissions about this matter at a hearing on 21 February 2019.
[95]T 198-199.
[96]Orders made 27 November 2018; T 230, 247-248.

The plaintiff’s affidavit stated that in August 2017 he attended the Supreme Court, and sought advice from the self-represented litigant (‘SRL’) coordinator about how to prevent the defendant’s purported abuse of court proceedings. He stated that the SRL coordinator advised him that the correct procedure was to apply for litigation restraint orders under the Vexations Proceedings Act, and explained that the application could be made to ‘any or all of the Supreme Court, the Magistrates’ Court, or to the Attorney General’.[97] The plaintiff therefore applied for a litigation restraint order to the Supreme and Magistrates’ Courts and to the Attorney-General; he would not apply to the Magistrates’ Court alone due to his disenchantment with that Court.
[97]Affidavit of LL sworn 19 February 2019, 4.

The plaintiff stated that in September 2017 he attended a Magistrates’ Court, and after speaking to the Registrar completed and filed an application for an extended litigation restraint order.[98] The handwritten application – an application for leave to apply for extended litigation restraint order – stated that it was made under s 16 of the Act rather than under ss 18 and 19, which govern only litigation restraint orders in proceedings involving intervention order legislation. In the application, the plaintiff cited the defendant’s purported abuse of court proceedings through unmeritorious intervention order and parenting order amendment applications.[99]
[98]Leave of the Magistrates’ Court is required to apply for an extended litigation order, Vexatious Proceedings Act 2014 (Vic) s 18(2).
[99]Exhibit DAS-2 of Affidavit of LL sworn 19 February 2019.

According to the plaintiff’s affidavit, at the hearing he handed up his affidavit, which was the affidavit that he had already filed in the Supreme Court. The Magistrate asked him why he was relying on an affidavit made in the Supreme Court and he replied that he had also made an application for an extended litigation restraint order against the defendant in this Court. According to the plaintiff, the Magistrate read some of the affidavit, adjourned over lunch to finish reading it and upon returning from lunch refused leave to apply for the order, without giving the plaintiff a genuine opportunity to make submissions. The Magistrate then asked him if he had anything to say to change his mind and he said that he desired to stop the proceedings against him.

According to the plaintiff, the Magistrate refused the leave application, stating that although a Supreme Court Judge may have a different view to his, he was not going to grant leave to proceed with the application. The Magistrate gave no reasons for his decision. The application occupied five minutes before lunch and five minutes after. The certified extract of His Honour’s orders erroneously stated that the order was made pursuant to the Family Violence Protection Act 2008 rather than the Vexatious Proceedings Act 2014. The plaintiff did not appeal against the Magistrate’s order.

The Magistrates’ Court hearing and the Magistrate’s decision raise two issues. The first is whether the Magistrates’ refusal of leave to apply for an extended litigation restraint order should weigh against the favourable exercise of the s 17 discretion, and if so to what extent. The second issue is whether it is appropriate for a court other than the Magistrates’ Court to make a litigation restraint order in a case where a substantial part of the proceedings relied on as constituting vexatious conduct were brought under the Family Violence Protection Act 2008. That legislation is unique and requires speedy court intervention to be an effective tool for responding to, and limiting, family violence. Its intersection with the law governing litigation restraint orders is inherently difficult. The parties made submissions upon each of these issues at the hearing of 21 February 2019.

Parties’ submissions
The plaintiff’s submissions

The plaintiff argued that the Magistrate’s decision of September 2017was of no consequence and should not be taken into account by this Court as a factor against granting an extended litigation restraint order. He argued that the Act permits applications for litigation restraint orders to be made to a number of Courts and tribunals; the mere fact that another court refused the application should not affect this Court’s own assessment of the application. He described this proceeding as a completely different and a standalone application, which was in fact initiated prior to the Magistrates’ Court proceeding.

The plaintiff also criticised the conduct of the Magistrates’ Court hearing to illustrate why the Magistrate’s decision was of no assistance in deciding this application. First, he claimed that the Magistrate treated him unfairly by affording him only a quick hearing in which he could not put oral submissions. He therefore issued litigation restraint order applications in both the Magistrates’ and Supreme Courts, and made an application to the Attorney-General. Secondly, he relied on only one affidavit before the Magistrate; in contrast, the plaintiff filed four affidavits in this proceeding and relied upon numerous authorities in support of his claim. Thirdly, the certified extract of orders indicated that the Magistrate misunderstood the Act under which his application was brought. The orders invoked the Family Violence Protection Act rather than the Vexatious Proceedings Act. Finally, no written reasons for decision were provided to the plaintiff despite his requests for them. The plaintiff urged that the combination of these factors rendered the Magistrate’s decision of little weight.

The plaintiff stated that he did not appeal against the Magistrate’s order because he had already commenced this Supreme Court proceeding, so he considered an appeal unnecessary. The Magistrates’ Court was but one avenue in which he sought a litigation restraint order.

The plaintiff also addressed the fact that his applications for extended litigation restraint orders were made pursuant to s 17 of the Act rather than s 19. Section 17 grants any Court or VCAT the power to make an extended litigation restraint order, whereas s 19 permits only the Magistrates’ or Children’s Courts to make such an order and then only in relation to intervention order proceedings. The plaintiff justified his reliance on s 17 on the basis that a number of the proceedings and applications said to be vexatious were family law matters and did not derive from the intervention order legislation. He argued that s 19 would have rendered those applications to vary parenting orders irrelevant to a Magistrate’s consideration of whether the defendant’s conduct was vexatious.

The defendant’s submissions

As a self-represented litigant the defendant did not develop legal submissions about the impact of the Magistrate’s refusal of leave to apply for an extended litigation restraint order. However, she did argue that the plaintiff’s multiplicity of litigation restraint order applications further evidenced that he was conducting a ‘witch-hunt’ against her. She submitted that the question of whether an extended litigation restraint order should be issued had already been decided by a Magistrate and that that decision should be considered in the exercise of the Court’s discretion.

Before considering the significance of these submissions, I will describe some of the relevant legislative and law reform history of the regulation of vexatious family violence protection proceedings.

Litigation restraint orders in family violence cases

The intersection between family violence intervention orders and litigation restraint orders is not clear-cut, as access to intervention orders must, by necessity, be timely if they are to be effective. A litigation restraint order will inevitably delay the access of the person bound by the order to court intervention in cases of family violence. Delay will be especially pronounced if, as the plaintiff seeks in this case, a court other than the Magistrates’ Court makes the litigation restraint order restricting a person’s access to applying for intervention orders. Leave to apply for an IVO would have to be granted by this Court before the person could apply for an interim IVO in the Magistrates’ Court.

Over the last decade, the law governing family violence protection and vexatious litigants has changed considerably. It is useful to consider these developments and their justification to further illustrate the operation and purpose of the current applicable legislation.

The Law Reform Commission Report on Family Violence (2006)

In 2006, the Victorian Law Reform Commission (‘VLRC’) published a report entitled ‘Review of Family Violence Laws’.[100] This report critiqued the then family violence statutory regime – then governed by the Crimes (Family Violence) Act 1987 – and recommended its overhaul in favour of a new Act that would, inter alia, better protect victims of family violence and prevent such violence from occurring.[101] The Parliament heeded the Commission’s recommendations and replaced the Crimes (Family Violence) Act 1987 with the Family Violence Protection Act 2008. This Act, still in force, is the principal piece of legislation governing intervention orders in cases of family violence, and contained many of the Commission’s recommendations.[102]
[100]Victorian Law Reform Commission, Review of Family Violence Laws (March 2006) (‘VLRC Report’).
[101]Ibid, Recommendations.
[102]Along with the Magistrates’ Court Act 1989.

The VLRC made two relevant recommendations. First, it recommended that:

… the power to declare a person a vexatious litigant should be available to the Magistrates’ Court in family violence matters. The Magistrates’ Court is much more accessible than the Supreme Court and it deals with intervention order applications. It will therefore often be the most appropriate venue for a hearing to decide if a person is vexatious. The commission recommends that the Chief Magistrate and delegates of the Chief Magistrate have the power to declare a person a vexatious litigant in family violence matters. In this way, the power will be limited to a few magistrates and could be made available in regional areas where the Chief Magistrate appoints delegates. The power should be limited to requiring a person to seek leave to make an application for an intervention order and should not apply to all types of legal proceedings.[103]

Secondly, the Commission recommended that there be adequate safeguards to ensure that people did not face unjust barriers to court intervention in instances of family violence. It proposed procedures for the Magistrates’ Court to make a vexatious litigant declaration on the grounds that applied in the Supreme Court—that the person has instituted vexatious legal proceedings habitually and persistently and without any reasonable ground with an appeal to the Supreme Court on a point of law.[104]

[103]VLRC Report, 287 (emphasis added).

[104]Ibid 288.

These recommendations were adopted under Part 11 of the Family Violence Protection Act 2008.[105] The legislation granted the Chief Magistrate and Deputy Chief Magistrates the power to order that a person is a vexatious litigant; otherwise only the President of the Children’s Court was granted the power.[106] A right of appeal to the County Court was granted.[107]
[105]The Attorney-General in his Second Reading Speech mentioned the reliance on the VLRC recommendations: Victoria, Parliamentary Debates, Legislative Assembly, 26 June 2008, 2645, 2649 (Rob Hulls, Attorney-General).
[106]Family Violence Protection Act 2008 (Vic) s 188, as enacted.
[107]Ibid s 195, as enacted.

In light of these recommendations being adopted, the VLRC’s report illustrates the policy justifications that led to the introduction of litigation restraint orders in intervention order proceedings. First, at the time of the report, the Supreme Court of Victoria was alone in having power to restrain vexatious litigants.[108] The VLRC noted this in recommending that the Magistrates’ Court should be granted the power to restrain vexatious litigants in family violence matters – citing the greater accessibility of Magistrates’ Courts and their unrivalled experience with family violence proceedings. Secondly, it recommended that there be appropriate safeguards attached to the power, as to fetter a person seeking protection from family violence is a severe matter. Thirdly, one such safeguard was the ability to appeal to the Supreme Court on a point of law.
[108]Supreme Court Act 1986 (Vic) s 21, as at 10 September 2014.

The Victorian Parliamentary Law Reform Committee Inquiry into Vexatious Litigants (2008)

In 2008, a Victorian Parliamentary Law Reform Committee conducted an inquiry into vexatious litigants,[109] specifically looking at their effect on the justice system and the individuals and agencies victim to their proceedings. Relevantly, the Committee cited research illustrating that most of the disputes subject to vexatious litigants arise from ‘simple daily life’,[110] including disputes arising from family breakdown.
[109]Law Reform Committee, Parliament of Victoria, Inquiry into Vexatious Litigants (Final Report, December 2008) (‘Committee Report’).
[110]Ibid 38.

The Parliamentary Committee recommended an overhaul of the statutory scheme,[111] which until then consisted only of s 21 of the Supreme Court Act 1986 – which granted a power exercisable only by this Court – and the then recently introduced Family Violence Protection Act provisions. It recommended that any Court or VCAT be granted the power to make some form of litigation restraint order, and that there be a ‘graduated system’ of orders from limited to extended restraint orders.[112] Relevantly, the Committee also recommended a review of the vexatious litigant provisions in the Family Violence Protection Act to ensure consistency with the legislation proposed in their report.[113]
[111]Ibid 171-173.
[112]Ibid 164-173.
[113]Ibid 173.

Many of these recommendations were eventually adopted in 2014 with the introduction of the Vexatious Proceedings Act. As outlined in the Bill’s Explanatory Memorandum:

The Bill repeals the vexatious litigation regimes in the Family Violence Protection Act 2008 and the Personal Safety Intervention Orders Act 2010 and re-enacts those regimes in the Bill to align those regimes with the new regime established under the Bill.[114]

[114]Ibid.

Under s 19, the Magistrates’ and Children’s Courts have the power to make an extended litigation restraint order ‘that relates to intervention order legislation’. The content of such an order can restrain only proceedings in those Courts under intervention order legislation.[115] Such an order is similar to an order under s 17, an extended litigation restraint order, except that it is confined to intervention order legislation proceedings.[116]
[115]Vexatious Proceedings Act 2014 (Vic) s 22.
[116]Explanatory Memorandum, Vexatious Proceedings Bill 2014 (Vic) 8.

Royal Commission into Family Violence Report (2016)

It is finally appropriate to note the relevant findings and recommendations of the Royal Commission into Family Violence in 2016.[117] The Commission explored family violence in all its forms.
[117]Royal Commission into Family Violence: Report and Recommendations (Report, March 2016).

The Commission examined ‘court-based responses’ to family violence,[118] and critiqued the process by which victims of family violence could obtain intervention orders from the Magistrates’ Court. In doing so, the Commission emphasised the importance of timely access to intervention orders and the detrimental effects delays could have upon victims of family violence.[119] These detrimental effects might include an escalation in violence, a prolongation of uncertainty as to whether orders will be made, causing difficulties in making decisions about housing, employment and parenting, or even an underestimation of the gravity of a family violence incident. Upon this basis, the Commission made many recommendations aimed at reducing delays for people applying for intervention orders, most of which were centred upon improving the capacity and efficiency of the Magistrates’ Court.[120] The Commission’s report did not consider vexatious litigants and the governing legislation, other than acknowledging that some respondents in intervention order proceedings would institute cross-applications or other proceedings as a delaying tactic,[121] which could be categorised as vexatious.
[118]Ibid vol 3, chp 16.
[119]Ibid vol 3, 122-123.
[120]Ibid vol 3, 156-181.
[121]Ibid vol 3, 125.

Though this Royal Commission did not explore the intersection of family violence intervention orders and litigation restraint orders, it highlighted the essential function that intervention orders play in shielding victims from family violence and the paramountcy of speedy court intervention.

The factors discussed in the Reports and recommendations to which I have referred provide useful background to a consideration of the role that litigation restraint orders may have in respect of the conduct of applicants for intervention orders.

Analysis

Section 17(2)(c) of the Act provides that, in deciding an application for an extended litigation restraint order, the Court may take into account any matter that it considers relevant, including proceedings commenced and conducted by the defendant and any other matter relating to the way in which the defendant conducts or has conducted litigation.

The Court has to decide whether the proceedings characterised by the plaintiff as vexatious were indeed vexatious within the definition, i.e. whether any of them were either:

(a) a proceeding that is an abuse of the process of a court or tribunal;

(b) a proceeding commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose;

(c) a proceeding commenced or pursued without reasonable grounds;

(d) a proceeding conducted in a way so as to harass or annoy, cause delay or detriment, or achieve another wrongful purpose.

General principles

An applicant for an extended litigation restraint order bears the burden of establishing that proceedings fall into the statutory categories permitting such an order to be made. It has been said that the character of the proceedings should be apparent upon reading any reasons for judgments and orders, particularly if it has been struck out as vexatious.[122]

Relevant aspects of the plaintiff’s application

[122]Kay v Attorney-General for the State of Victoria (2000) 2 VR 436, 437.

The essence of the plaintiff’s application appears to be contained in the intervention order proceedings and the parties’ submissions focused principally on them.

While the family law proceedings are relevant to considering whether the defendant’s conduct has been vexatious, such applications are federal and cannot be restrained by order of this Court. Therefore the crux of the remedy the plaintiff seeks is to stop the defendant applying for IVOs.

No court has found that an application commenced by the defendant was an abuse of process of the court; was commenced to harass or annoy, to cause delay or detriment, or for another wrongful purpose; or was conducted in a way so as to harass or annoy, cause delay or detriment, or to achieve another wrongful purpose. Findings of that nature are often given weight in deciding vexatious proceedings applications.

The findings of the County Court Judge on appeal by a hearing de novo against the second interim IVO could be read as a finding that the defendant had no reasonable grounds for that interim order application. However, the Judge decided the appeal as a ‘word on word’ contest after an assessment of conflicting evidence. That approach makes it difficult to conclude that the application for the second interim IVO was made without reasonable grounds.

On one view, at least some of the defendant’s unsuccessful reversal or variation of parenting order applications might be assessed as having been made without reasonable grounds. But as the defendant was self-represented and was required to bring her application within a legal formula of changed circumstances, which is very much a fact based test, I do not consider that the evidence about those applications, such as it is, enables a conclusion to be drawn that the first three applications were made without reasonable grounds. As I have stated, little detail has been provided about the fourth application.

The Federal Circuit Court Judge in the decision of 3 February 2015 made findings adverse to the defendant’s evidence and to the basis on which she had obtained the second interim IVO. I have taken those findings into account, as one aspect of a number that affect whether a litigation restraint order should be made. The parenting dispute which the Federal Circuit Judge heard was not itself a vexatious proceeding. After those Federal Circuit Court findings, the Magistrates’ Court made the second IVO on 7 June 2016, although in circumstances in which the plaintiff was unable to cross-examine the defendant. That order was later set aside by the County Court in the circumstances and with the findings that I have previously discussed.

I take into account that the defendant was successful in ex parte applications before two Magistrates in obtaining interim IVOs. I also take into account that the plaintiff obtained his own interim IVO following the defendant’s appearance on a television program. It is also relevant that the plaintiff has not been subject to an IVO obtained by the defendant since December 2016, although his own interim IVO continued to operate to bind the defendant well into 2018.

The interim IVOs and parenting applications

There is an important interest in preserving the effectiveness and credibility of the granting of IVOs, and taking steps where appropriate to prevent applications for them from being made frivolously or vexatiously.

Referring to the IVOs sought by the defendant, I do not consider that the withdrawal of the first interim IVO indicates that the defendant commenced or conducted that application as a vexatious proceeding, as circumstances can change after an order is made, especially in disputes arising from a former marriage.

I have taken into account that the second interim IVO was set aside by the County Court on appeal because the defendant’s allegations were found not to be substantiated. That outcome does not mean that that proceeding was commenced or conducted as a vexatious proceeding. The Judge considered that the case was a ‘word on word’ contest in which he preferred the evidence of the plaintiff.[123] That does not mean that the proceeding was commenced or conducted vexatiously.
[123]T2 228.

The third interim IVO application is yet to be determined.

Having considered the parties’ submissions on the point, I place no weight on the fact that in September 2017, the Magistrates’ Court refused the plaintiff an extended litigation restraint order against the defendant as the material presented to me is more extensive and informative than the material presented to the Magistrate on that occasion.

The cost and impact on the plaintiff of the proceedings commenced by the defendant have been significant. He has had to attend Court on 63 days and he says that has spent over $100,000 in costs in connection with the proceedings commenced by the defendant. A number of these attendances have been in the Federal Circuit Court and concerned the parenting orders where the defendant has unsuccessfully applied to alter orders, the Courts deciding that there were no new circumstances justifying their alteration that would satisfy the Rice v Asplund test.[124] However, the Federal Circuit Court or the Family Court have not found that the defendant’s applications were frivolous or vexatious and there has been no costs orders made against her. In fraught family law proceedings, a party who is self-represented may make applications that a legal practitioner would not make.
[124]T 147-148.

In summary of the circumstances of the IVO applications, the defendant obtained one interim IVO and then a few months later withdrew it; obtained a second interim IVO which the County Court considered had no basis and set aside and sought a third, the merits of which application have yet to be assessed. In turn, the plaintiff obtained one interim IVO, which may be still in force, arising from the defendant’s appearance in a report on a television program and the concerns that he expressed about her psychological condition.

I have taken into account that, having obtained the first interim IVO, the defendant did not file further evidence as ordered and withdrew the application and that the County Court set aside the second interim IVO concluding that there was ‘no basis for making the order’. They are two of many circumstances to take into account. As previously stated, the plaintiff obtained his own interim IVO.

The plaintiff’s case was especially based on his dissatisfaction with the Magistrates’ Courts’ handling of the interim IVO applications. But that dissatisfaction is not a reason to grant a litigation restraint order binding the litigant who obtained the interim IVOs. The plaintiff exercised his right of appeal against the second interim IVO successfully and the Magistrates’ Court granted him an interim IVO. Magistrates’ Court orders must be treated as valid unless there is a successful appeal against them. Imperfections in the handling of some of the thousands of interim IVO applications the Magistrates’ Court must determine can be rectified by appeal.

In my opinion, because the interim IVOs that the defendant sought or obtained were made or sought at different times and based on different allegations, the applications were not examples of an applicant persisting in repeating previously rejected applications.

The defendant’s unsuccessful attempts in the Federal Circuit Court to vary or reverse the parenting orders are also relevant, as a person should generally not make the same interlocutory application unless they have a basis for alleging changed circumstances since the order was made. The defendant has made three such applications and a fourth is said to have been made, but there is little information about it. They, or at least most of them, appear to have been made during hearings for which the parties were already required to attend court. While this Court can take those parenting applications into account, a litigation restraint order made by this Court would not prevent such applications from being made in the future, as they are made to a federal court. The Family Law Act 1975 has a separate regime to deal with vexatious proceedings.[125] I do not see the parenting orders as decisive in determining the plaintiff’s present application as they were made by a parent applying for more access time with her children in litigation where the other party has also made applications. As mentioned, I have taken into account that most of the parenting applications were made in the course of hearings that related to other matters that had brought the parties before the court.
[125]Family Law Act 1975 (Cth) part XIB.

The frequency of the defendant’s applications must also be considered. The chronology shows that a year elapsed between the application for the first interim IVO and the second, and the third application was made more than two years and four months after the second. On 1 February 2016, the defendant applied to reverse the parenting orders made a year before on 3 February 2015. Eighteen months later, she made a similar unsuccessful application. About two months later, she made a similar unsuccessful application and then a month later, the plaintiff said that she again applied for reversal orders, but there is little detail. I do not find that there was no reasonable basis for the commencing or conducting of proceedings.[126]
[126]See Karam v Palmone Shoes Pty Ltd (No 3) [2016] VSC 228 (J Forrest J).

I do not consider that the defendant’s conduct in respect of the interim IVOs or the parenting applications has demonstrated an unwillingness or an inability to accept that a challenge to a decision has been rejected and therefore that there are no grounds for further challenges.

I do not consider that the defendant’s conduct in this proceeding comes within any part of the definition of a vexatious application. The defendant persuaded me that it was appropriate to grant her an adjournment of the trial date based on some medical evidence. Thereafter, the defendant participated in each of the three days of the hearing.

I therefore find that the plaintiff has not established that the defendant has frequently commenced or continued vexatious proceedings against him within s 17(1) of the Act. I am not satisfied of the matters required by that provision. Leave to bring the present application is refused because I do not consider that it has merit within the meaning of s 16(3)(a) of the Act.

The exercise of the discretion conferred by s 17 of the Vexatious Proceedings Act

I will continue and consider how I would have exercised the discretion conferred by s 17 had I considered that the plaintiff had established that the defendant had commenced or continued vexatious proceedings. The exercise of the discretion is a separate requirement in order to determine whether an extended litigation restraint order should be made. There is some overlap between factors I have considered in determining whether the defendant has commenced vexatious proceedings and matters that bear upon the exercise of the discretion. In considering the manner in which I would have exercised the discretion, I have considered again the matters that I have set out in the Analysis section of this judgment.

If the defendant had frequently instituted vexatious proceedings, and the discretion conferred by s 17 was enlivened, the focus would turn to whether the Court should choose in the exercise of the discretion to make an extended litigation restraint order against her.[127]
[127]A discretion gives the Court a choice: Norbis v Norbis (1986) 161 CLR 513, 518 (Mason and Deane JJ).

I consider that it is a significant discretionary consideration that, if the defendant were bound by a litigation restraint order, then in the event that she considered it necessary on an appropriate basis to seek an interim IVO, that she would have to obtain leave of the Supreme Court to continue or commence proceedings in the Magistrates’ Court under the Family Violence Protection Act. This would add another barrier to proceedings which are intended to be available speedily and accessibly. While in theory an application could be made to this Court for leave under the Act to commence an application for an interim IVO, that procedural necessity would add another step obstructing a speedy listing and determination of such an application.

The Magistrates’ Court is the primary, and usually the appropriate, forum for applications under the Family Violence Protection Act. It can regulate the actions of persons who make vexatious applications for intervention orders. The plaintiff may be dissatisfied with the way in which the Magistrates’ Court has dealt with the interim IVOs applications concerning him, but Parliament has given that Court the primary role in considering making such orders with a right of appeal to the County Court. The plaintiff successfully exercised that right against one of the orders made against him. This Court should give weight to the role given by Parliament to the Magistrates’ Court.

It is evident from the structure of the Act, and the history outlined above, that the legislature intended that the Magistrates’ Court will usually be the forum for applications for litigation restraint orders arising from intervention order proceedings. The Magistrates’ Court deals daily with many intervention order applications, and is best placed to determine whether a series of intervention order applications are vexatious in nature. Section 19 expressly grants power to the Magistrates’ and Children’s Courts to make litigation restraint orders in respect of intervention orders. Since June 2016, no interim IVO obtained by the defendant has been in force against the plaintiff.

So far as the parenting order applications are concerned, I consider that, as the Federal Circuit Court Judge noted, the parties are going to require the courts from time to time to resolve issues between them. In the nature of a former marriage with parties whose relationship has become disagreeable and where children are involved, issues requiring court determination may arise from time to time. This case is different from a common class of vexatious proceedings, where the dispute giving rise to the proceedings is based on facts occurring in the past where one side continues to make applications because they will not accept earlier court rulings. These applications arise out of an evolving family dispute involving allegations and counter-allegations and, as the County Court Judge stated, are at least to some extent, ‘word on word’ proceedings.

The nature of disputed family matters has to be kept in mind in determining whether the Court should grant an extended litigation restraint order. As the Federal Circuit Court Judge noted, it may not be the last time that the parties would come to court and that, given the way they presented in court, their personalities were such that from time to time they were probably going to require further assistance by the court when they cannot conciliate their disputes.[128] The plaintiff’s application for a litigation restraint order is to be viewed in this setting of acrimonious allegations that they have levelled against each other.
[128]CB 150.

I do not say that the Magistrates’ Court will always be the appropriate forum to determine litigation restraint orders involving intervention order applications, but I see no reason why it cannot be in this case. The plaintiff has made one such application to the Magistrates’ Court and the fact that he was unsuccessful and considered that he received an unsatisfactory hearing is no reason for further applications to be brought in the Supreme Court.

It is of course possible that the defendant will bring further interim IVO applications against the plaintiff. If she does that, and does not substantiate them, the case for making an extended litigation restraint order against her will become stronger. Nothing I say in this judgment should condone the making of frivolous or vexatious applications. My decision should not be taken by either party as an invitation to make any unsubstantiated applications.

Orders

The plaintiff’s application for leave to apply for an extended litigation restraint order against the defendant under the Vexatious Proceedings Act is refused. The proceeding is dismissed.

[2019] VSC 174

21 March 2019