Manolakis v Director of Public Prosecutions (Cth) & Ors

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MANOLAKIS v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS
[2009] SASC 193
Judgment of The Honourable Justice Gray
2 July 2009
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - JURISDICTION AND GENERALLY
PROCEDURE - COURTS AND JUDGES GENERALLY - JUDGES - OTHER MATTERS
Referral for direction from Registrar - applicant attempted to file Notice of Appeal in Registry of Supreme Court - Registrar sought direction that he reject Notice of Appeal as offensive and abuse of Court process - whether Notice of Appeal should be rejected - consideration of scope of inherent jurisdiction of Court.
Held: notice of appeal offensive and abuse of Court process - Court has inherent jurisdiction to control the bringing of applications to prevent party from abusing processes of the Court - direct Registrar to reject proposed Notice of Appeal pursuant to Rule 53 - restrain applicant from issuing any further processes relating to complaints in proposed Notice of Appeal and earlier Notices of Appeal without obtaining leave of Court.
Supreme Court Civil Rules 2006 (SA) r 53; Supreme Court Act 1935 (SA) s 39, referred to.
Commonwealth Trading Bank v Inglis (1974) 131 CLR 311; Bhamjee v Forsdick (No 2) [2004] 1 WLR 88; Wentworth v Graham (2003) 57 NSWLR 741; Attorney-General v Ebert [2002] 2 All ER 789; Sandhurst Trustees Ltd v Gallerie Investments Pty Ltd [2003] SASC 46; R v Forbes; Ex Parte Bevan (1972) 127 CLR 1; Cocker v Tempest (1841) 7 M & W 502; Connelly v Director of Public Prosecutions [1964] AC 1254; Grepe v Loam [1887] 37 Ch D 168; Kinnaird v Field [1905] 2 Ch D 306; Hunter v Leahy (1999) 91 FCR 214; von Risefer v Permanent Trustee Company Ltd [2005] 1 Qd R 681; Hillston v Bar-Mordecai [2002] NSWSC 975; Attorney General v Wentworth (1998) 14 NSWLR 481; Wentworth v Graham (2003) 57 NSWLR 741; Tringali v Stewardson Stubbs & Collett Pty Ltd (1966) 1 NSWR 354; Ebert v Venvil [2000] Ch 484 at 493, considered.

MANOLAKIS v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS & ORS
[2009] SASC 193
Civil
GRAY J.

Anastasios Manolakis has attempted to file a Notice of Appeal and attachments in the Registry of the Supreme Court. The Registrar has sought a direction that he reject the Notice of Appeal.
The proposed Notice of Appeal names the Commonwealth Director of Public Prosecutions and two Judges of this Court as respondents. It is dated 3 April 2009 and has several annexures. The first is an information sheet identifying Judges of the Court said to be disqualified from hearing the appeal. The information sheet also makes reference to an affidavit of Mr Manolakis filed in related proceedings. The document contains the following statement:
That the appellant continually has to deal with illegal and inappropriate interference and that applications/Appeals must be put to an independent Justice immediately and that the Registrar and staff of the Supreme Court of SA Registry be ordered to STOP interfering illegally with the appellants [sic] applications/Appeals. These matters cannot be put to the above listed Justices or a judge/master of the SA Supreme Court.
Also attached to the proposed Notice of Appeal is an affidavit of Mr Manolakis sworn 3 April 2009 together with a nine-page attachment. The affidavit and the attachment use inflammatory and abusive language, and include scurrilous allegations about members of the judiciary and other public figures. These allegations are scandalous in their content, and are assertions made without any identified basis, are unsupported by any cogent material and are of no apparent credibility.
Mr Manolakis’ underlying complaint appears to relate to a suggested denial of procedural fairness in respect of Magistrates Court proceedings.
It appears from earlier Rulings of this Court that Mr Manolakis has on prior occasions sought to lodge Notices of Appeal in the Court raising concerns about Magistrates Court proceedings. Those Notices also contained inflammatory and scurrilous comments about public officers, together with allegations of grave misconduct unsupported by any cogent material. Judges of this Court have, on three occasions, directed the Registrar to reject Notices of Appeal sought to be filed by Mr Manolakis at the Registry of this Court.
In the course of submissions, Mr Manolakis appeared to acknowledge that his Notice of Appeal and annexed documents in the within proceedings could be viewed as offensive and as an abuse of the processes of the Court. However, Mr Manolakis maintained that to his mind the documents were not offensive or an abuse. He submitted that insofar as the documents may offend, they could be amended to delete that material. In my view this would not be an appropriate course as the documents are replete with abusive, offensive and scandalous material.
In the course of the hearing, I indicated to Mr Manolakis that it was apparent that he was repeatedly engaging in the process of seeking to file Notices of Appeal, and on the referral of the Registrar the Court directing that those proposed Notices of Appeal not be received. Mr Manolakis acknowledged that this had become a problem. The earlier excerpt from his application confirms his frustration with this process. He requested that his Notice of Appeal be referred to a Full Court of the Supreme Court for immediate determination. I indicated to Mr Manolakis that such a course was inappropriate, and that the present issue for determination was whether his proposed Notice of Appeal should be rejected by the Registrar.
I have no hesitation in directing the Registrar to reject the proposed Notice of Appeal and attached documents pursuant to the terms of Rule 53 of the Supreme Court Civil Rules 2006 (SA).[1]
[1] Rule 53 of the Supreme Court Civil Rules 2006 (SA) provides:
(1)A document is an abuse of the process of the Court if it contains matter that is scandalous, frivolous or vexatious.
(2)If it appears to the Registrar that a document submitted for filing is an abuse of the process of the Court, the Registrar must refer the matter to a Judge or Master.
(3)If the Judge or Master so directs, the Registrar will reject the document.
(4)If it appears to the Court that a document that is an abuse of the process of the Court has been filed in the Court, the Court may direct that it be struck from the file.
This Court has inherent jurisdiction to control the bringing of applications in the course of an action so as to prevent a party from abusing the processes of the Court.[2] The Registrar has advised that Mr Manolakis’ applications take up a considerable amount of his time, the time of the Registry staff and the time of Judges of this Court. The Registrar has indicated that it may be appropriate for the inherent jurisdiction of the Court to be exercised to restrain Mr Manolakis from issuing any further processes relating to the complaints the subject of the present Notice of Appeal and the earlier Notices of Appeal, without the leave of a Judge of this Court.
[2] Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 320 (Barwick CJ and McTiernan J).
In Bhamjee v Forsdick (No 2) Lord Phillips of Worth Matravers MR observed:[3]
[T]he courts are facing very serious contemporary problems created by the activities of litigants like Mr Bhamjee who are bombarding them with applications which have no merit at all. … It is also [the problem] that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all.
This Court faces similar problems. There is a need for appropriate steps to be taken to prevent the persistent advancing of hopeless applications that are abusive and scurrilous and that unnecessarily take up the time of the court to the prejudice of the community in general, and other litigants in particular.[4]
[3] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 90-91.
[4] Wentworth v Graham (2003) 57 NSWLR 741 at 742 (Ipp JA and Brownie A-JA).
During the course of Mr Manolakis’ applications to this Court, he has repeatedly refused to accept rulings that have displeased him. He has frequently attempted to reargue those rulings. His submissions have been dismissed as lacking substance. Mr Manolakis falls within the class of litigants identified in Bhamjee.
This Court has a responsibility to control its own processes and to prevent improper hindrance or interference with litigants’ rights of access. A litigant who engages in such conduct impairs the rights of others. The time of Judges, officers and staff of the Court is absorbed in improper hindrances and interferences that occur. In Attorney-General v Ebert, Brooke LJ observed:[5]
[T]he court's supervisory role now extends beyond the mere regulation of litigation and of litigants who have submitted themselves to the compulsory jurisdiction of the court. It includes the regulation of the manner in which the court process may in general be utilised. It is of course well-established that the High Court may, in appropriate circumstances, grant an injunction to restrain an anticipated interference with the administration of justice, amounting to a contempt (see A-G v Times Newspapers Ltd [1973] 3 All ER 54 at 59, 69–70, [1974] AC 273 at 293–294, 306). The advent of the CPR only serves to bolster the principle that in the exercise of its inherent jurisdiction the court has the power to restrain litigants from wasting the time of court staff and disturbing the orderly conduct of court processes in a completely obsessive pursuit of their own litigation, taking it forward by one unmeritorious application after another and insisting that they should be afforded priority over other litigants.
It goes without saying that every citizen has a right of access to a court both at common law and pursuant to art 6 of the convention. It is, however, implicit in the English case law (see Grepe v Loam (1887) 37 Ch D 168 and Ebert v Venvil) that this right of access is not absolute. This is also the effect of convention jurisprudence, which requires only that any limitations imposed on it must not impair the very essence of the right (see Stubbings v UK (1997) 23 EHRR 213 at 233 (para 48)). It is therefore incumbent on the court in the exercise of its power to control its own procedure, or to prevent future contempts of court, to ensure that nothing it may do amounts to an improper hindrance or interference with a litigant's right of access or is otherwise disproportionate.
[5] Attorney-General v Ebert [2002] 2 All ER 789 at 798.
The present proceeding, and the request of the Registrar, is but another instance of Mr Manolakis’ refusal to accept rulings that have displeased him. Mr Manolakis apparently has an underlying complaint relating to the way in which he was treated in the Magistrates Court. He appears to wish to advance concerns about denials of procedural fairness, which, he asserts, are both manifest and serious. His attempts to have his concerns addressed have failed. He has obscured his complaint about a lack of procedural fairness with other extraneous complaints that have now been made on repeated occasions, and described by Judges of this Court as abusive, inflammatory, scurrilous and without foundation. This repeated process must stop.
The scope of the inherent jurisdiction of this Court to restrict a litigant’s access to the courts requires consideration. This Court has in the past ordered a restraint on the making of any further application by a claimant where there has been a series of unmeritorious attempts to avoid the effect of a judgment.[6] The scope of such an order, relying on the inherent jurisdiction of the Court, has generally been limited to preventing applications within the proceedings that are before the court.
[6] Sandhurst Trustees Ltd v Gallerie Investments Pty Ltd [2003] SASC 46 (Perry J).
The inherent jurisdiction exists because this Court is a Superior Court of record. Accordingly, the Court can protect itself from abuse of its processes by the use of that jurisdiction.[7] The justification for this aspect of the inherent jurisdiction is evident in the oft quoted passage of Baron Alderson in Cocker v Tempest:[8]
The power of each court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so, the court would be obliged to sit still and see its own process abused for the purpose of injustice. The exercise of the power is certainly a matter for the most careful discretion…
One commentator noted when describing the juridical basis of inherent jurisdiction:[9]
Such a power is intrinsic in a superior court; it is its very life-blood, its very essence, its immanent attribute. Without such a power, the court would have form but would lack substance. The jurisdiction which is inherent in a superior court of law is that which enables it to fulfil itself as a court of law. The juridical basis of this jurisdiction is therefore the authority of the judiciary to uphold, to protect and to fulfil the judicial function of administering justice according to law in a regular, orderly and effective manner.
(footnote omitted)
One manifestation of this jurisdiction is the prevention of an abuse of the processes of the court.[10]
[7]    R v Forbes; Ex Parte Bevan (1972) 127 CLR 1 at 7 (Menzies J).
[8]    Cocker v Tempest (1841) 7 M & W 502, at 503 –504; 151 ER 864 at 865 (Baron Alderson).
[9]    I.H. Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) 23 Current Legal Problems 23 at 27-28.
[10] See Connelly v Director of Public Prosecutions [1964] AC 1254.
An example of the exercise of inherent jurisdiction is the order made in Grepe v Loam.[11] This has come to be referred to as a “Grepe v Loam Order”, and more recently as a “civil restraint order”.[12] The order in Grepe v Loam stipulated:[13]
That the said Applicants or any of them be not allowed to make any further applications in these actions or either of them to this Court or to the Court below without the leave of this Court being first obtained. And if notice of any such application shall be given without such leave being obtained, the Respondents shall not be required to appear upon such application, and it shall be dismissed without being heard.
[11] Grepe v Loam (1887) 37 Ch D 168.
[12] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88, where the court analysed the categories of orders that can be made in the exercise of the inherent jurisdiction of a superior court.
[13] Grepe v Loam (1887) 37 Ch D 168 at 169.
The salient features of a traditional Grepe v Loam order include the following:[14] - that it be made by a judge, that the order has the effect of restraining the litigant from making any further applications in the matter without the permission of the court, that if such an application were to be made it could be dismissed without being heard, and that the order could be appealed provided leave to do so was granted.
[14] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 96.
In relation to persistent and frivolous interlocutory proceedings, the Court in Kinnaird v Field[15] confirmed an order that was made in the exercise of inherent jurisdiction. The order was made in reliance on Grepe v Loam and read as follows:[16]
This Court doth order that the defendant is not to be allowed without the leave of the judge in chambers to make any application under the summons for directions, or to issue any summons on matters of procedure, or to serve any notice of motion to discharge any order in chambers made on any such application as aforesaid, without such leave: And in case he shall, without such leave, serve notice of any such application or summons or notice of motion as aforesaid on the plaintiffs, they are not to attend unless the judge on the return thereof shall so direct; and, unless the judge shall think fit to give such directions, the application shall be dismissed without being heard…
[15] Kinnaird v Field [1905] 2 Ch D 306.
[16] Kinnaird v Field [1905] 2 Ch D 306 at 308.
In Bhamjee, the Court held that where a series of applications made by a plaintiff had been struck out on the basis that they were totally devoid of merit, on its own motion, the Court could make, and indeed should consider making, a Grepe v Loam order. It was observed that if the actions of the litigant are such as to be persistently disruptive and vexatious, an “extended” Grepe v Loam order could be given. The key additional feature[17] of such an order was that it extends beyond proceedings currently on foot, to the issuing of any new proceedings against the defendants or their representatives relating to a broad range of matters defined in the order summarised by the Court as follows:[18]
This order, which should be made for a period not exceeding two years, will restrain the litigant from instituting proceedings or making applications in the courts identified in the order in or out of or concerning any matters involving or relating to or touching upon or leading to the proceedings in which it is made without the permission of a judge identified in the order. Any application for permission should be made on paper and will be dealt with on paper.
In summary, Bhamjee confirmed that a court can make an order to the effect that no further applications within an action on foot can be made without leave of the Court. The range of actions from which the litigant is to be restrained may be extended to embrace the institution of separate actions arising out of the same subject matter.[19]
[17] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 96 relying on the comments of Lord Woolf MR in Ebert v Venvil [2000] Ch 484 at 496-497:
“We see no reason why, absent the intervention of a statute cutting down the jurisdiction, [the inherent] jurisdiction should apply only in relation to existing proceedings and not to vexatious proceedings which are manifestly threatened but not yet initiated … The court undoubtedly has the power to stay or strike out vexatious proceedings when they are commenced under its inherent power. We can see no reason in principle why it should not also, in accord with the general approach to the granting of quia timet injunctions, exercise that power to prevent the serious loss that anticipated but unidentified proceedings could cause the defendants to those proceedings.”
[18] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 102.
[19] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 98.
(1)The claimant is forbidden for a period of two years from the date of this order (whether personally or through any servant or agent) from making any further application or taking any steps (including for the avoidance of doubt the issuing of any new proceedings in whatever form) in the Court of Appeal, the High Court (which expression includes for the avoidance of doubt any division thereof, whether in the Royal Courts of Justice or in any district registry), or in any county court against the first five named defendants and/or their legal or other representatives in or out of or concerning any matters involving or relating to or touching upon or leading to these proceedings without permission obtained in accordance with para (2) below.
(2)If the claimant wishes to apply for permission to make any further application, step, proceedings or any act as described in paragraph (1) above, then an application for such permission must be made in writing to Master Bowman and the application will be dealt with on paper alone.
(3)If the claimant wishes to appeal any decision of Master Bowman made in accordance with para (2) above, he must seek permission from: (a) Master Bowman in accordance with the procedure set out in para (2) above (i e an application in writing to be dealt with on paper alone by Master Bowman); and thereafter (b) Park J, adopting the same procedure (i e an application in writing to be dealt with on paper alone by Park J) as set out in para (2) above. For the avoidance of doubt no appeal and no application for permission to appeal will lie to the Court of Appeal from a decision of Park J or Master Bowman refusing permission to appeal.
(4)Any amendment or discharge of this order can be made only by Park J. If the claimant wishes to seek an amendment or variation he must first seek permission from Master Bowman to make any such application to Park J. Such an application for permission to make an application to Park J is to be dealt with in accordance with para (2) above (ie an application in writing to be dealt with on paper alone by Master Bowman) and will be subject to the procedure set out in para (3) above in respect of any application for permission to appeal from any decision of Master Bowman.
(5)If any form of claim form, statement of case, application notice, notice of appeal, petition or any other form of document which is within the scope of this order is served on or given to the first five named defendants and/or their legal representatives without the said permission having been first obtained (which acts or any of them, for the avoidance of doubt, will constitute a breach of this order and a contempt of court on the part of the claimant) that person shall not be required to appear and respond and the purported application/proceedings shall stand dismissed and struck out without having been heard.
(6)The claimant is not to apply for: (a) permission from Master Bowman in accordance with the procedure set out in para (2) above; (b) permission to appeal in accordance with the procedure set out in para (3) above; without first giving notice in writing to Barlow Lyde & Gilbert six clear working days before any such application of the nature of the application and the grounds thereof, and if Barlow Lyde & Gilbert reply to such notice in writing (there being no obligation to do so) such response shall accompany any application made by the claimant under para (2) and/or para (3) above.
(7)In the event of the retirement, permanent indisposition or permanent unavailability of either Master Bowman and/or Park J, another master and/or judge of the Chancery Division may be assigned to this order by the Vice-Chancellor.

In Commonwealth Trading Bank v Inglis,[20] the High Court emphasised the distinction between the institution of new proceedings and those already before the court. The Court held that a court has no inherent jurisdiction to prevent a person from commencing proceedings or from lodging an appeal in an existing proceeding without leave from the Court. On the other hand, the Court held that a court does have inherent jurisdiction to control the bringing of applications in an action which is pending for the purpose of preventing a party abusing the process of the court.[21] This conclusion is premised on the underlying distinction between: [22]
[R]egulating the conduct of such an action so as prevent the court’s process from being abused, on the one hand, and impeding a particular person in the exercise of a right of access to the court, on the other hand.
[20] Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 (Barwick CJ, McTiernan and Walsh JJ unanimously).
[21] Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 319-320.
[22] Commonwealth Trading Bank v Inglis (1974) 131 CLR 311 at 319.
In Hunter v Leahy,[23] French J stressed that it was the substance and not the form of the proceedings that was of most importance. An order could still be made to restrain the institution of new proceedings so long as it could be determined that those proceedings constituted an attempt to re-litigate a dispute that had already been concluded. As French J said:[24]
I do not regard the decision in Commonwealth Trading Bank v Inglis as so constraining the inherent jurisdiction or the implied incidental power of this Court or the application of s 23, that it can prevent this Court from restraining the institution of proceedings which, in effect, seek to relitigate the substance of matters already determined in proceedings which have been disposed of in the Court.
I respectfully agree with these observations. This Court has the power in its inherent jurisdiction to protect the defendants against any further attempt by the plaintiffs to re-litigate the same complaints in fresh proceedings.
[23] Hunter v Leahy (1999) 91 FCR 214.
[24] Hunter v Leahy (1999) 91 FCR 214 at 221.
In von Risefer v Permanent Trustee Company Ltd,[25] Keane JA referred to the decision in Hunter and noted:[26]
It is, no doubt, a power to be exercised with the utmost caution; but this case affords a clear example of the kind of case in which it should be exercised to protect parties against whom baseless allegations of unlawful conduct have repeatedly been made from the expense, inconvenience and hurt involved in the further repetition of those allegations.
The von Risefer order was in the following terms:
…the plaintiffs and each of them, by themselves, their servants and their agents be restrained from making any further application in proceedings S9123/03 or taking any further steps, including the issuing of any new proceedings in any Queensland court against the first, second, third, fourth or fifth defendants, in or arising out of or concerning the allegations made in proceedings S9123/03 without the prior leave of a judge of the Trial Division of the Supreme Court.
[25] von Risefer v Permanent Trustee Company Ltd [2005] 1 Qd R 681.
[26] von Risefer v Permanent Trustee Company Ltd [2005] 1 Qd R 681 at 688 (Keane JA, McPherson JA.and Philippides J agreeing).
In my view, the cases to which I have referred are authority for the existence of a power, arising from the inherent jurisdiction of this Court to the same effect as the power exercised in Grepe v Loam and Kinnaird v Field. This view appears to accord with those of Bryson J in Hillston v Bar-Mordecai,[27] Roden J in Attorney General v Wentworth[28] and the New South Wales Court in Wentworth v Graham.[29]
[27] Hillston v Bar-Mordecai [2002] NSWSC 975 at [4].
[28] Attorney General v Wentworth (1998) 14 NSWLR 481 at 492.
[29] Wentworth v Graham (2003) 57 NSWLR 741 at 742 (Ipp JA and Brownie A-JA).
In Wentworth v Graham,[30] the Court applied Bhamjee and addressed the circumstance where a litigant has repeatedly made unwarranted and unmeritorious “satellite” applications and refused to accept rulings that displeased that litigant. The Court ruled that having regard to repeated applications to reargue, calls for members of the court to be disqualified for bias, and the making of scurrilous and baseless allegations against judges, a restraining order should be made. That order should restrain the litigant from bringing any further interlocutory proceedings without the permission of the court, making any further application that the court be disqualified for bias, or conducting any further oral proceedings.[31]
[30] Wentworth v Graham (2003) 57 NSWLR 741.
[31] Wentworth v Graham (2003) 57 NSWLR 741.
The categories demanding the invocation of the Court’s inherent jurisdiction are not, and cannot be, closed, as the Supreme Court of New South Wales discussed in Tringali v Stewardson Stubbs & Collett Pty Ltd:[32]
“…It is a power which is exercisable in any situation where the requirement of justice demands it”.[33]… But … apart from the procedure prescribed by the rule, there can be no doubt that this Court has an inherent jurisdiction to endeavour to ensure that the pursuit of its ordinary procedures by litigants does not lead to injustice and for this purpose to grant in the exercise of its discretion a stay of proceedings, whether permanent or temporary, upon such conditions or terms (if any) as may seem appropriate in the particular circumstances and that this is a jurisdiction which may be exercised at any stage of the proceedings where it appears to be demanded by the justice of the case.
[32] Tringali v Stewardson Stubbs & Collett Pty Ltd (1966) 1 NSWR 354 at 360-361.
[33] Cox v Journeaux (No 2) (1935) 52 CLR 713 at 720.
In my view, for the reasons stated, the requirements of justice in this case call for the use of the inherent jurisdiction of the Court.
Statutory provisions and indeed, entire legislation in some jurisdictions, have coincided with much of the Court’s inherent authority to protect its process from abuse.[34] Rules of courts have also paralleled the power to reject groundless applications.[35] Section 39(1) of the Supreme Court Act 1935 (SA) provides:
Vexatious proceedings
If, on the application of the Attorney-General or any other interested person, the court is satisfied that a person has persistently instituted vexatious proceedings, the court may make either or both of the following orders:
(a)an order prohibiting the person by whom the vexatious proceedings were instituted from instituting further proceedings, or further proceedings of a particular class, without permission of the court;
(b) an order staying proceedings already instituted by that person.
[34] For example see: Supreme Court Act 1935 (SA) section 39; Vexatious Proceedings Act 2006 (NT); Supreme Court Act 1970 (NSW) section 84; Vexatious Proceedings Act 2005 (QLD); Supreme Court Civil Procedure Act 1932 (TAS) section 194G; Supreme Court Act 1986 (VIC) section 21; Vexatious Proceedings Restriction Act 2002 (WA).
[35]For example see: Supreme Court Civil Rules 2006 (SA) rules 98(2), 104; Court Procedures Rules 2006 (ACT) rule 425; Supreme Court Rules 1987 (NT) rules 23.01, 23.02; Uniform Civil Procedure Rules 2005 (NSW) rules 13.5, 14.28; Uniform Civil Procedure Rules 1999 (QLD) rules 162, 171; Supreme Court Rules 2000 (TAS) rules 258, 259; Supreme Court (General Civil Procedure) Rules 2005 (VIC) Order 23; Rules of the Supreme Court 1971 (WA) Order 20 rule 19.
I do not consider that section 39 of the Supreme Court Act limits the inherent jurisdiction of the Court. In Hillston v Bar-Mordecai,[36] Bryson J in the Supreme Court of New South Wales held, approving a similar conclusion of the English Court of Appeal in Ebert v Venvil,[37] that section 84 of the Supreme Court Act 1970 (NSW) should not be understood to have been intended to limit the Court’s inherent jurisdiction. Bryson J was satisfied that the making of repeated applications had been an abuse of the Court’s processes, and that if the litigant remained unrestrained, the conduct would continue. Thus, it was appropriate to use the inherent power to restrain that conduct.
[36] Hillston v Bar-Mordecai [2002] NSWSC 975.
[37] Ebert v Venvil [2000] Ch 484 at 493 (Lord Woolf MR, Otton and Aldous LJJ).
A similar view was taken by Keane JA in von Risefer:[38]
Having regard to what was said in the passage cited above from Commonwealth Trading Bank v. Inglis, as to the possible effect of legislation on the inherent jurisdiction, I should observe that I am not aware of any Queensland legislation which has cut down the power of the courts to prevent abuse of the processes of the court. In this regard, the Vexatious Litigants Act 1981 is concerned with the creation of the status of a vexatious litigant and the restriction of that person's ability to institute any proceedings, save by leave of the Supreme Court, while that status subsists. The inherent jurisdiction caters specifically for the protection of identified parties to existing litigation.
[38] von Risefer v Permanent Trustee Company Ltd [2005] 1 Qd R 681 at 686 (Keane JA, McPherson JA and Philippides J agreeing).
This conclusion accords with the second reading speech for the revision of section 39 of the Supreme Court Act in 1987, where the Attorney-General said:[39]
The Supreme Court has inherent jurisdiction to strike out proceedings or to stay or dismiss proceedings which are vexatious. However, this inherent jurisdiction does not enable a court, in dismissing an action on the ground that it is vexatious, to order that the plaintiff shall not be permitted to commence another action.
Keith Mason QC confirmed that it would be an unusual situation where the mere presence of some statute or rule of court which arms the court with a method of dealing with a particular problem in a particular manner, would exclude the inherent power to deal with that problem in another way.[40]
[39] South Australia, Parliamentary Debates, Legislative Council, 6 October 1987, 949 (CJ Sumner, Attorney-General).
[40] Keith Mason QC, ‘The Inherent Jurisdiction of the Court’ (1983) 57 Australian Law Journal 449 at 449.
Conclusion
When discussing the strain on court resources and the inhibiting of other litigants’ access to courts, in Bhamjee Lord Phillips noted: [41]
It is also that the court is having to divert the skilled attention that ought to be paid to cases of real merit which warrant early hearings to cases which have no merit at all.[42]
The court, therefore, has power to take appropriate action whenever it sees that its functions as a court of justice are being abused ... A court's overriding objective is to deal with cases justly. This means, among other things, dealing with cases expeditiously and allotting to them an appropriate share of its resources (while taking into account the need to allot resources to other cases). This objective is thwarted and the process of the court abused if litigants bombard the court with hopeless applications. They thereby divert the court's resources from dealing with meritorious disputes, delay the handling of those disputes, and waste skilled and scarce resources on matters totally devoid of any merit.
[41] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 93.
[42] Bhamjee v Forsdick (No 2) [2004] 1 WLR 88 at 91.
It follows, that while this Court is dealing with matters devoid of merit, meritorious claims are left wanting access to the courts. Not only has the process that ensued following the Magistrates Court proceedings in Mr Manolakis’ case, frustrated court resources, but Mr Manolakis himself has been frustrated by the process. By ensuring that permission be obtained before any further applications may progress, Mr Manolakis will be encouraged to develop a coherent argument, which in turn, may help him to succeed if a meritorious claim were to exist amongst his allegations.
There is a further policy consideration – the prevention of the multiplicity of proceedings. In preventing multiple proceedings arising out of the same cause of action, the court is protecting its processes from abuse. In doing so, the court also protects the interests of the public by ensuring the just and expedient resolution of disputes. Vexatious provisions appear directed toward persons rather than processes and their limited use may indicate that they are not equipped to deal with proceedings such as those initiated by Mr Manolakis.
I propose to restrain Mr Manolakis from seeking to issue any other proceedings in regard to any of the matters raised by the present proposed Notice of Appeal.
The order does not mean that Mr Manolakis cannot air a proper complaint. He will be able to do so through the issue of proceedings authorised by this Court. A copy of the order is attached as a schedule to this judgment.
IN THE SUPREME COURT OF SOUTH AUSTRALIA
IN THE MATTER OF A PROPOSED APPEAL
BETWEEN
ANASTASIOS MANOLAKIS
and
THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS AND OTHERS
ORDER WITH INJUNCTION
The Registrar
Supreme Court of South Australia
1 Gouger Street
ADELAIDE 5000
Judicial Officer:               The Honourable Justice Gray
Dates of hearing: 14 May 2009 and 2 July 2009
Date of order:                    2 July 2009
Appearances:  Mr Anastasios Manolakis in person
THE COURT ORDERS THAT:
1.Anastasios Manolakis (“the applicant”) be restrained from
(a) making any further application or taking any steps (including for the avoidance of doubt the filing or issuing of any new proceedings in this Court) in or out of or concerning any matters involving or relating to or touching upon or otherwise relating to the complaints the subject of the proposed Notice of Appeal dated 3 April 2009; and
(b)attending at the Registry of this Court in respect of any matters involving or relating to or touching upon or otherwise relating to the complaints the subject of the proposed Notice of Appeal dated 3 April 2009
without the permission of this Court first being obtained.
2.Any application for the permission referred to in paragraph 1 of this Order shall:
(a)in the case of paragraph 1(a) be made in writing and shall be dealt with by a Master on the papers alone; and
(b)in the case of paragraph 1(b) be made in writing and shall be dealt with by the Registrar on the papers alone.
3.The applicant be restrained from appealing against:
(a)any decision of a Master under paragraph 2(a) of this Order without permission of another Master or a Judge, any application for such permission being made in writing and dealt with by that Master or Judge on the papers alone; and
(b)any decision of the Registrar under paragraph 2(b) of this Order without permission of a Master any application for such permission being made in writing and dealt with by that Master on the papers alone; and
(c)any decision of a Master or a Judge under paragraph 3(a) of this Order; and
(d)any decision of a Master under paragraph 3(b) of this Order.
4.Any application for any permission under this order shall be made in writing and be posted to the Registry of this Court by ordinary pre-paid post addressed to
The Registrar
Supreme Court of South Australia
1 Gouger Street
ADELAIDE 5000.
WARNING: IF YOU THE WITHIN NAMED ANASTASIOS MANOLAKIS DO NOT COMPLY WITH THIS ORDER, YOU WILL BE LIABLE TO BE IMPRISONED OR OTHERWISE DEALT WITH FOR CONTEMPT OF COURT
REGISTRAR

[2009] SASC 193

2 July 2009

Key Legal Topics

Areas of Law

Civil Litigation & Procedure

Legal Concepts

Jurisdiction

Abuse of Process

Inherent Jurisdiction

Res Judicata

Specific Performance