Lohe v Sargent
[2001] QSC 386
•16 October 2001
SUPREME COURT OF QUEENSLAND
CITATION: Lohe v Sargent [2001] QSC 386 PARTIES: CONRAD WILHELM LOHE
(applicant)
v
JOHN GARY SARGENT
(respondent)FILE NO: S6670 of 2001 DIVISION: Trial Division DELIVERED ON: 16 October 2001 DELIVERED AT: Brisbane HEARING DATE: 4 September 2001 JUDGE: Mullins J ORDER: The respondent, John Gary Sargent, is declared to be a vexatious litigant. CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – declaration of vexatious litigant – whether circumstances justify a declaration – whether proceedings instituted “frequently” and “without reasonable grounds”
Acquisition of Land Act 1967
Judicial Review Act 1991
Vexatious Litigants Act 1981Re Cameron [1996] 2 QdR 218
Jones v Cusack (1992) 66 ALJR 815
Re Vernazza [1960] 1 QB 197COUNSEL: MO Plunkett for the applicant
The respondent in personSOLICITORS: Crown Solicitor for the applicant
MULLINS J: Conrad Wilhelm Lohe (“the applicant”) is the Crown Solicitor for the State of Queensland and applies for an order pursuant to s 3(1) of the Vexatious Litigants Act 1981 (“the Act”) declaring John Gary Sargent (“the respondent”) to be a vexatious litigant. The respondent who appears in person opposes the application.
Proceedings in respect of Land Court claim
In July 1994 the respondent purchased Lot 3 on RP229165 in the County of Churchill Parish of Rosewood. The property was subject to an easement resumed for the Queensland Electricity Commission and SEQEB on 16 October 1975 for the purpose of erecting two poles to support overhead electricity transmission lines.
On 10 October 1996 the respondent lodged a claim for compensation in the sum of $50,000 against SEQEB and Powerlink with the Land Court which purported to be pursuant to the Acquisition ofLand Act 1967. The respondent’s claim for compensation related to damage which he alleged was caused to his property within and outside the area of the easement.
On 28 November 1996 SEQEB and Powerlink filed an application in the Land Court for an order that the respondent’s claim for compensation be dismissed on the basis that the Land Court had no jurisdiction, as the respondent had no right to claim compensation under the Acquisition ofLand Act 1967, or that the respondent’s claim for compensation was frivolous or vexatious, as the respondent was not the owner of the property, when the easement was resumed. The application was returnable on 5 December 1996 which was a callover day in the Land Court on which the respondent’s claim for compensation was due to be called over.
The application of SEQEB and Powerlink was heard by the President of the Land Court, Mr JJ Trickett, on 5 December 1996. The respondent was unrepresented, as has been the case in all subsequent hearings. During the course of that hearing the respondent explained:
“SEQEB placed a tower on top of a hill, removed vegetation, it’s solidic clay, contains salt, erosion increased rapidly. They realised their mistake in 1987, removed the power pole, repositioned them on either side of the hill and just left it in its eroded state and to this day it’s just rapidly increased now to almost two acres of damaged land.”
The President found that the respondent had no right pursuant to the Acquisition ofLand Act 1967 to seek compensation for the damage that he was claiming to the subject land and therefore ordered that the respondent’s claim be struck out for want of jurisdiction. The President also ordered that the respondent pay the costs of Powerlink and SEQEB in the amount of $500. In the course of his reasons, the President stated:
“There may be some other avenue which Mr Sargent can pursue but unfortunately he’s been wrongly advised in that this Court has no jurisdiction to hear his claim for compensation.”
On 2 January 1997 the respondent filed a notice of appeal to the Land Appeal Court. His ground of appeal was that when he attended the Land Court on 5 December 1996 it was for a callover and that he did not receive a fair hearing on the callover. He also claimed that at no time had he been heard in respect of his claim for compensation for the resumption of the land taken.
The appeal was heard on 6 March 1997. The Land Appeal Court delivered judgment on 1 August 1997, dismissed the appeal and ordered the respondent to pay the costs of the appeal of Powerlink and SEQEB. The Land Appeal Court concluded that the Land Court did not have jurisdiction to hear and determine the claim for compensation for damage to the respondent’s land. It was also found that the respondent had not been taken by surprise when SEQEB and Powerlink’s application was heard at the callover and that the respondent had received a fair hearing.
The respondent then appealed to the Court of Appeal. On the question of jurisdiction, the Court of Appeal rejected the respondent’s submissions and dismissed the appeal with costs. In the course of its reasons, the Court of Appeal stated:
“Whatever other rights at law Mr Sargent might have, the Land Court, deriving its jurisdiction to hear claims for compensation relating to land from statute, does not have jurisdiction to entertain this claim.”
The respondent then applied to the High Court for special leave to appeal from the decision of the Court of Appeal. On 20 November 1998 special leave was refused with costs.
The applicant describes this series of proceedings which commenced in the Land Court and was completed when special leave was refused as the “first category” of the respondent’s litigation. The applicant does not rely on the first category of litigation to support the application under the Act. It has been necessary to recite the history of the first category of litigation, as it spawned what the applicant describes as the “second category” of litigation which is the basis for the applicant’s bringing the application under the Act.
Subsequent proceedings
The applicant relies on five applications described as “judicial review” applications made by the respondent respectively on 15 December 1998, 12 and 26 February 1999, 16 March 1999 and 8 October 1999, a further application made in the last judicial review application on 12 November 1999, an application made to the Court of Appeal on 21 June 1999 and an application made to the Holland Park Magistrates Court on 10 May 2000. It is necessary to describe each of these applications.
The first judicial review application was for a statutory order of review in relation to the decision of SEQEB made on 5 December 1996 to approve the argument that the Land Court did not have jurisdiction to determine the amount of compensation for damage to the respondent’s land as per the application and submissions made by SEQEB and Powerlink. Those parties filed a notice of motion seeking orders that the respondent’s application for a statutory order of review be dismissed on the ground that it was an abuse of process. On 19 January 1999 Williams J (as he then was) dismissed the respondent’s first judicial review application with costs.
On 12 February 1999 the respondent filed a further application which comprised a bundle of 13 documents, the first of which was entitled “Cost – Application for Reasons for Decision” and stated that the respondent was seeking an order as prescribed by law in s 50(a) of the Judicial Review Act 1991. That application was listed for hearing before Byrne J on 23 February 1999. It is apparent from the affidavit of the respondent sworn on 15 February 1999 in connection with that application and the transcript of the hearing of the application that the respondent was refusing to accept the outcome of the first litigation and was attempting to use the so-called application for costs to obtain an order sending his original claim back to the Land Court. That application was dismissed with costs.
The third judicial review application was filed by the respondent on 26 February 1999. It was described as an application for review of conduct, as prescribed in s 21 of the Judicial Review Act 1991 and sought an order that SEQEB and Powerlink withdraw their application relating to jurisdiction from the Land Court and that they pay all costs incurred by the respondent between 10 October 1996 and 23 February 1999. The grounds of the application included allegations of fraud and conspiracy to defraud the public.
On 2 March 1999 SEQEB and Powerlink filed an application seeking to have the respondent’s third judicial review application dismissed pursuant to s 48(1) of the Judicial Review Act 1991. On 11 March 1999 Atkinson J ordered that the respondent's application be dismissed and that there be no order as to costs.
The fourth application for judicial review was made by the respondent on 16 March 1999. The respondent sought orders setting aside the application made by SEQEB and Powerlink for the dismissal of the respondent’s third judicial review application and other orders which had the purpose of endeavouring to attack the application by those parties made in the Land Court to strike out the respondent’s claim for compensation.
On 19 March 1999 de Jersey CJ dismissed the respondent’s application and reserved the question of costs, pending written submissions on the issue.
Reasons for judgment were published by de Jersey CJ on 7 April 1999 in respect of the issue of costs and the respondent was ordered to pay the costs of SEQEB and Powerlink of the fourth judicial review application to be taxed on a solicitor and own client basis.
The respondent filed a notice of appeal on 14 April 1999 against the orders of de Jersey CJ made on 19 March and 7 April 1999. The notice of appeal named the Minister for the Department of Natural Resources (“the Minister”) as a respondent, in addition to SEQEB and Powerlink.
By application filed on 24 May 1999 the Minister sought an order that his name be removed from the record in respect of this appeal. The Court of Appeal ordered that the name of the Minister be struck out from the application for leave to appeal and the purported notice of appeal and that the respondent pay the costs of the Minister of the application to remove the Minister’s name from the record.
In connection with this appeal, the respondent then filed a notice of motion on 21 June 1999 seeking to have the application made by the Minister and the subsequent order by the Court of Appeal striking out the Minister’s name dismissed. The application also sought leave “for Application Returnable to proceed or Appeal before a Master in Chamber, for Writ to be issued”. The Minister was named as a party to this application. The Court of Appeal on 27 July 1999 ordered that the application be dismissed and that the respondent pay the costs of the Minister of the application.
Although the respondent had filed a notice of appeal from the orders of de Jersey CJ, leave to appeal was required, because it was an appeal from an order dismissing an application: ss 15(4) and 48(5) of the Judicial Review Act 1991. At the time of hearing that application, the Court of Appeal also heard an application by the respondent for reconsideration of the assessment of costs undertaken in respect of the order for costs made by the Court of Appeal on 27 July 1999. In relation to the application for leave to appeal from the orders of de Jersey CJ, leave to appeal was refused and the respondent was ordered to pay the costs of SEQEB and Powerlink on an indemnity basis. In relation to the application for reconsideration of the assessment of costs, the application was dismissed and the respondent ordered to pay the Minister’s costs on an indemnity basis. The reasons for judgment in the Court of Appeal were delivered on 10 March 2000 by Davies JA who, after reciting the history of the respondent’s litigation, stated:
“In summary, there appear to be at least four occasions on which the appellant has sought, since his application for special leave to the High Court was dismissed, to have this matter re-litigated by applications purporting to be applications under the Judicial Review Act.
A mere recitation of these facts in my view makes it abundantly clear that this appeal not only cannot succeed but is an abuse of process of the Court.”
On 8 October 1999 the respondent filed an application for review claiming fraud and bad faith and seeking that an order of certiorari be granted under r 580 of the UCPR “combined with Section 41 of the Judicial Review Act 1991” and an order for costs of the proceedings and additional costs, relying on an application dated 28 September 1999. The affidavit of the respondent which accompanied that application referred to the respondent’s ownership of the subject land and the easement and the right claimed by the respondent to claim damage to the property caused by an exercise of power on the easement. The respondent described one of his claims as follows:
“The Appellant’s claim is also for damages for Breach of Covenants for repairs and compensation to the area of land in and around Easement A on Lot 3, caused by positioning and relocating timber poles or structures used for the purpose to convey electricity over the said land, as the Constructing Authority has not kept Easement A on the said land in good and proper repair, for ten years.”
The owner of the subject property at the time of the resumption of the easement was Mrs Pagel. The respondent’s affidavit makes a curious claim which does not reflect the record of what occurred in the Land Court on 5 December 1996:
“On 5 December 1996, administration of the personal former estate of the said owner, Cecil Mervyn Pagel, gentleman deceased and next of kin Iris May Pagel, wife, was granted by the Land Court to Clayton Utz, SEQEB and Powerlink, which grant I claim should be revoked. (As shown on pages 111 to 145 of the Record Book in Matter No 8119 of 1997.)”
The reference to Matter No 8119 of 1997 was to the appeal to the Court of Appeal from the decision of the Land Appeal Court.
On 12 November 1999 Mackenzie J struck out the application for order for costs of proceedings and additional costs on the basis that it was not within the jurisdiction of the Judicial Review Act 1991, dismissed the application for review filed on 8 October 1991 and dismissed the application for certiorari which was incorporated in that application for review. The respondent was ordered to pay the other parties’ costs of the application.
Notwithstanding that the fifth judicial review application had been disposed of on 12 November 1999, the respondent served a document entitled in that application and described as “Notice to Admit Facts” on the solicitors for SEQEB and Powerlink on 24 November 1999. The notice required admission of the facts of fraud and bad faith and was accompanied by affidavits of the respondent which he had relied on previously.
During the hearing of this application the respondent disclosed that he had commenced a proceeding by claim against SEQEB and Powerlink and the Minister being No S10993 of 1999 (“the Supreme Court claim proceeding”). The claim and statement of claim became Exhibit 3 in this application. The respondent also tendered a copy of the order of Fryberg J made on 7 January 2000 in respect of the proceeding which became Exhibit 4 in this application. Fryberg J ordered that judgment be entered in favour of the Minister and that, as against SEQEB and Powerlink, the action be struck out. Although the Supreme Court claim proceeding was not referred to in the applicant’s affidavit, the applicant sought to rely on it in connection with this application.
The complaints which were made by the respondent in the Supreme Court claim proceeding relate back to his complaints about the manner in which his claim for compensation was disposed of in the Land Court on 5 December 1996 and his complaints about how he was treated in subsequent proceedings. He alleged conspiracy, fraud, contempt, tampering with court evidence, abuse of power, bad faith and many other serious allegations against SEQEB, Powerlink and the Minister.
On 11 May 2000 the respondent filed an application in the Holland Park Magistrates Court against SEQEB, Powerlink and the Minister seeking various orders pursuant to the Acquisition ofLand Act 1967 (including that judgment be entered in favour of the respondent pursuant to s 40 of that Act), the Criminal Code and the Justices Act 1886. On 23 May 2000 Mr B Murray SM ordered that the application be dismissed and the respondent pay the costs of the other parties on an indemnity basis.
On 29 September 2000 the respondent filed in the High Court an application for special leave to appeal from the decision of the Court of Appeal made on 10 March 2000. The respondent’s summary of argument which was also filed on 29 September 2000 is littered with pieces of legal jargon and irrelevant references and does not make sense. One example of this which is the last point in the statement of the respondent’s argument will suffice:
“The Judgements or Orders by the Lower Courts being of a quasi-judicial nature appear to show disrespect to the ANZACs and all Australian men and women who gave their lives and served in the military forces defending the King and all property owners within the Commonwealth. Notwithstanding the members of the United States of America military forces who also gave their lives and served to protect the rights of all property owners in Queensland. ‘Lest We Forget’.”
It does not appear from the material that this application for special leave has been heard by the High Court.
Respondent’s material
The respondent relied on his affidavit which was filed on 7 August 2001. The affidavit gives a little history of the dealings between the respondent and SEQEB prior to the commencement of the first litigation. According to the respondent, there was a mediation involving the respondent and representatives of SEQEB and AGL in 1996 in relation to the respondent’s complaint about the erosion of the subject land and that an agreement was reached that an independent person would prepare a report on the repair of the respondent’s land and SEQEB and AGL would pay the cost of that report. The respondent refers to a report entitled “Repair of Land Instability, Redwood Drive, Lockrose” dated 6 August 1996 prepared by university lecturer JC Galletly. According to the respondent, there was a second mediation between the same people which resulted in an agreement that the repair of the respondent’s land was to proceed as per the report of JC Galletly and to commence by 30 September 1996 and if SEQEB and AGL did not commence the repair, then the compensation to repair the land was to be determined by the court. The respondent states that 10 days from the agreed final date for commencement of repair, he was informed that SEQEB, AGL and JC Galletly had decided to alter the repair previously agreed to at the mediation session. The respondent was unsuccessful in arranging a site meeting to discuss the proposed alteration and therefore served his claim for compensation which he made in the Land Court on SEQEB on 11 October 1996.
The respondent states that when he received the application filed on 28 November 1996 to have his claim for compensation struck out, he contacted the solicitor for SEQEB “and explained, there has been a mistake and SEQEB, are aware of the damage to land on the property, near Lockrose”.
It appears therefore that part of what has motivated the respondent throughout the first and second litigation is his perception that SEQEB had reneged on what the respondent considers had been agreed at a mediation with him in relation to the repair of the damage which had been caused to his land.
It is apparent from the course of the first litigation and the second litigation that the respondent has become preoccupied with court processes and the injustice which he perceived flowed from the striking out of his claim for compensation in the Land Court. The respondent has been told many times in the first litigation that the Land Court was not the appropriate jurisdiction to pursue his claim for compensation for damage to his land caused by SEQEB’s exercising its rights under the relevant easement. The respondent has not used the first and the second litigation to pursue any such claim.
The respondent’s affidavit filed on 7 August 2001 and his submissions at the hearing of this application did not seek to address the issues that are relevant to a consideration of whether the declaration that the respondent is a vexatious litigant should be made.
Issues
The proceedings that must be considered for the purpose of s 3 of the Act are those in Queensland Courts. That applies to all the proceedings in the second litigation, other than the application for special leave to the High Court.
The definition of “legal proceedings” in s 2(1) of the Act encompasses initiating process, appeals and interlocutory applications. The notice to admit facts given by the respondent on 24 November 1999 after the fifth judicial review application had been struck out is not a proceeding within that definition. I therefore do not take the giving of that notice into account as a proceeding. The giving of the notice by the respondent in the circumstances where it related to an application which had been struck out is relevant for what it indicates about the attitude of the respondent to the court procedures to the extent that it may be considered in determining whether or not to exercise the discretion conferred by s 3(1) of the Act.
In order to invoke the jurisdiction conferred by s 3(1) of the Act, the legal proceedings must have been instituted “frequently” and “without reasonable ground”. The term “frequently” is a relative term: Jones v Cusack (1992) 66 ALJR 815, 816. The second litigation commenced on 15 December 1998 and has continued until 23 May 2000, with the striking out of the application in the Holland Park Magistrates Court. In that time there have been five judicial review applications, one appeal from the decision in the fourth application for judicial review to the Court of Appeal involving an application by the respondent in connection with that appeal, the Supreme Court claim proceeding and the application in the Holland Park Magistrates Court, all of which arise from the respondent’s need to re-litigate the striking out of his claim for compensation to the Land Court which occurred on 5 December 1996. Against the background of the first litigation where the respondent completely exhausted all avenues of appeal in respect of the decision of the Land Court to strike out his claim for compensation, the proceedings which comprised the second litigation satisfy the criterion of being instituted “frequently”.
The question of whether proceedings are vexatious is not determined by reference to the position taken by the respondent or his subjective perceptions, but by a consideration of whether the legal proceedings relied on by the applicant to support the application are, in fact, vexatious: Re Vernazza [1960] 1 QB 197, 208.
The general characteristics of vexatious proceedings were identified by Fitzgerald P in Re Cameron [1996] 2 QdR 218, 220:
“It is also necessary to decide what makes legal proceedings vexatious. Although there are sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or otherwise of the motives of the person against whom the order is sought, the existence or lack of reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to those which have already been rejected, compliance with or disregard of the court’s practices, procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions or other abuse of process, the wastage of public resources and funds, and the harassment of those who are the subject of the litigation which lacks reasonable basis: see, for example, Attorney-General v. Wentworth (1988) 14 N.S.W.L.R. 481; Jones v. Skyring (1992) 66 A.L.J.R. 810; Jones v. Cusack (1992) 66 A.L.J.R. 815, and Attorney-General (N.S.W.) v. West (N.S.W. Common Law Division No. 16208 of 1992, 19 November 1992, unreported).”
The matters which support the applicant’s contention that the proceedings in the second litigation are vexatious are:
(a)Each of the five judicial review applications including the proceedings in the Court of Appeal relating to the fourth judicial review application, the Supreme Court claim proceeding and the application to the Holland Park Magistrates Court sought to re-litigate the issue of whether the respondent’s claim in the Land Court had been properly struck out, when that issue had been determined in the first litigation;
(b)There was absolutely no reasonable basis whatsoever for the commencement of each of these proceedings comprising the second litigation by the respondent;
(c)When the respondent appealed against the dismissal of the fourth judicial review application, he sought to add the Minister as a party to the appeal, when he was not a party to the fourth judicial review application and, when the Court of Appeal had removed the Minister as a party to the appeal, the respondent filed a further application seeking to have the Minister reinstated as a party to the appeal;
(d)Despite the success which the Minister had in relation to his joinder as a party in connection with the appeal from the fourth judicial review application, the respondent persisted in joining the Minister to each subsequent proceeding commenced by the respondent;
(e)The respondent has put SEQEB, Powerlink and the Minister to expense to defend the proceedings involving those parties which comprise the second litigation which means there has been a wastage of those resources and funds in defending untenable claims;
(f)The respondent has persistently attempted to make use of forms and proceedings provided for in the rules of court which are outmoded or inappropriate, eg seeking leave to appeal before a Master in Chambers or seeking an order of certiorari.
There is therefore sufficient material to support a conclusion that the proceedings in the second litigation in Queensland Courts are vexatious. My conclusion that the respondent’s motivation for embarking on the second litigation was that he was seeking to redress the wrong which he considered had been done when his claim for compensation in the Land Court was struck out at the request of SEQEB and Powerlink does not alter the fact that the proceedings in the second litigation were totally misconceived.
The conditions for exercising the jurisdiction under s 3(1) of the Act have therefore been shown to exist by the applicant. It is then a question of the exercise of discretion, as to whether or not the order sought by the applicant is made: Re Cameron at 222, per Pincus JA. Matters relevant to the exercise of the discretion include the motivation of the respondent and the attitude of the respondent reflected by the notice to admit facts given after the fifth judicial review application had been struck out and the making of the application for special leave to appeal to the High Court in respect of the decision of the Court of Appeal on the appeal from the decision of the fourth judicial review application which is supported by a summary of argument that does not make sense.
During the course of the hearing of the application, I raised with the parties the possibility of whether an order should be made under s 3(3) of the Act which permits an order under s 3(1) of the Act “to contain such conditions or qualifications or to have such limited application” as appears to be appropriate. As it was apparent that the second litigation related to the issue of whether the respondent’s claim for compensation in the Land Court should have been struck out on 5 December 1996, I was exploring whether it may be possible to limit the declaration that the respondent was a vexatious litigant to proceedings which sought to agitate that issue.
The attitude of the applicant conveyed during the hearing of the application was that it presented too much difficulty to draft an appropriate condition. After perusing closely the material relating to the second litigation, I have come to the conclusion that it is not appropriate to make a declaration that is limited to proceedings in which the respondent seeks to raise for consideration the striking out of his claim for compensation in the Land Court. Although in general terms, the second litigation is concerned with re-agitating the issue of whether the respondent’s claim for compensation in the Land Court should have been struck out, the relief sought and allegations made by the respondent in the second litigation are much more broadly based and raise many other issues than the matter which concerned the first litigation.
The material relied on by the applicant not only establishes the jurisdiction to make an order under s 3(1) of the Act, but supports the exercise of the discretion in favour of making the order.
I therefore make the following order:
“The respondent, John Gary Sargent, is declared to be a vexatious litigant.”
The applicant does not seek an order for costs.
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