Luke v Kwon - [2011] NSWSC 36

Supreme Court

New South Wales

Medium Neutral Citation: Luke v Kwon [2011] NSWSC 36
Hearing dates: 31 January 2011
Decision date: 14 February 2011
Jurisdiction: Common Law
Before: McCallum J
Decision:
Proceedings no. 417800 of 2010 in this Court between the defendant as plaintiff and the plaintiffs as defendants are stayed. Subject to section 14 of the Vexatious Proceedings Act 2008, the defendant is prohibited from commencing any proceedings in the State of New South Wales against either of the plaintiffs. The defendant is to pay the plaintiffs' costs of the proceedings.

Catchwords: Vexatious proceedings - whether plaintiff has frequently instituted or conducted vexatious proceedings - where small number of proceedings instituted - defendant persisting in filing pleadings repeating the same allegations where earlier pleadings struck out - orders made limited to prohibiting proceedings against the plaintiffs
Legislation Cited: Vexatious Proceedings Act 2008
Uniform Civil Procedures Rules rule 14.28
Cases Cited: Attorney-General of NSW v Wilson [2010] NSWSC 1008
Attorney-General v Gargan [2010] NSWSC 1192
Jones v Cusack [1992] HCA 40; [1992] 109 ALR 313
Siteberg Pty Ltd v Maples [2010] NSWSC 1344
Category: Principal judgment
Parties: Sylvia Luke and Frank Luke (Plaintiffs)
Ki Bun Kwon (Defendant)
Representation: Counsel:
JR Young (Plaintiffs)
In person (Defendant)
Solicitors:
Kim & Associates (Plaintiffs)

File Number(s): 2010/289332

Judgment

Since May last year, Ki Bun Kwon has instituted three sets of proceedings against Mrs Sylvia Luke and Mr Frank Luke claiming essentially the same relief. Two of the claims have been struck out as disclosing no reasonable cause of action or otherwise amounting to an abuse of process. The third, filed only in December, is still before the Court. Mr and Mrs Luke allege that all three proceedings are vexatious. They now seek an order under the Vexatious Proceedings Act 2008 prohibiting Ms Kwon from instituting proceedings against them.

The Vexatious Proceedings Act creates a discretionary statutory remedy against a person who has "frequently instituted or conducted vexatious proceedings in Australia". Upon being satisfied in those terms, the Court has power to stay any existing proceedings already instituted by the person and to prohibit the person from instituting any further proceedings.

The effect of such an order is that the person cannot prosecute any legal claim without leave of the Court. It does not preclude the person absolutely from ever pursuing any claim: see s 14 of the Act. Nonetheless, an order of the kind sought by Mr and Mrs Luke represents a substantial curtailment of the ordinary right of any citizen to be heard as to any business he or she may have before the Court. It should be regarded as an extreme remedy.

The Act defines "vexatious proceedings" in the following terms (see s 6 of the Act):

6. Meaning of "vexatious proceedings"

In this Act, "vexatious proceedings includes:

(a) proceedings that are an abuse of process of a court or tribunal, and

(b) proceedings instituted to harass or annoy, to cause delay or detriment, or for another wrongful purpose, and

(c)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Luke v Kwon

Details

AGLC: Luke v Kwon [2011] NSWSC 36
Case: [2011] NSWSC 36
Decision Date: 14 February 2011

CaseChat Overview and Summary

The matter of Luke v Kwon involved a dispute between the plaintiffs, Luke and his wife, and the defendant, Kwon. The plaintiffs sought an order under section 93 of the Supreme Court Act 1935 (WA) that the defendant was a vexatious litigant, on the basis that he had instituted or conducted vexatious proceedings. The proceedings were heard in the Supreme Court of Western Australia. The plaintiffs alleged that Kwon had a persistent and vexatious pattern of filing pleadings which repeated the same allegations against them, despite these pleadings being struck out on previous occasions.

The primary legal issue before the court was whether the defendant's conduct amounted to vexatious litigation. The plaintiffs argued that the small number of proceedings was not the only consideration, and that the persistence in filing pleadings repeating the same allegations against the plaintiffs was sufficient to establish the defendant's vexatious nature. The defendant contended that the court should not make an order under section 93 unless the plaintiff demonstrated that the proceedings were not only vexatious but also without merit.

The court found that the defendant had a persistent and vexatious pattern of filing pleadings which repeated the same allegations against the plaintiffs, despite these pleadings being struck out on previous occasions. The court held that the persistence in filing pleadings repeating the same allegations against the plaintiffs was sufficient to establish the defendant's vexatious nature. However, the court limited its orders to prohibiting the defendant from instituting any further proceedings against the plaintiffs, rather than declaring him to be a vexatious litigant. The court considered that the orders made were sufficient to address the issue of the defendant's vexatious conduct without unnecessarily restricting his ability to litigate other matters.

Orders