Polites Investments Pty Ltd v Russell

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
POLITES INVESTMENTS PTY LTD v RUSSELL
[2022] SASC 9
Judgment of the Honourable Justice David
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - VEXATIOUS LITIGANTS, PROCEEDINGS AND RELATED MATTERS - VEXATIOUS LITIGANT
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS
Polites Investments Pty Ltd ('Polites Investments') made an application on 7 May 2020 seeking orders to the effect that the respondent, Mr Douglas Charles Russell, be declared a vexatious litigant pursuant to s 39 of the Supreme Court Act 1935 (SA) (the 'Act').
On 21 August 2020, Mr Russell brought an action by way of Cross Claim against Polites Investments seeking $3 million compensation from Polites Investments on the basis of fraud, perjury, and false and misleading statements allegedly made to this Court. Polites Investments denies the allegations contained in the Cross Claim.
Held, per David JA, allowing the application, and summarily dismissing the Cross Claim.
1. The respondent, Mr Russell, has instituted vexatious proceedings, as defined in s 39(5)(b) of the Act, by persistently instituting proceedings without reasonable ground.
2. The respondent is prohibited from instituting further proceedings in any court of the State of South Australia against the applicant, Polites Investments, or any related body corporate, officer, agent, or advisor of the applicant without the permission of this Court pursuant to s 39(1)(a) of the Act.
3. The Cross Claim is dismissed.
4. The respondent is to pay the applicant's costs of the s 39 application and the Cross Claim as taxed or agreed.
Supreme Court Act 1935 (SA) s 39; Supreme Court Civil Rules 2006 (SA) r 296; Uniform Civil Rules 2020 (SA) rr 1.3, 144.2, referred to.
Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117; Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd [2007] SASC 173; Attorney-General v Kowalski [2014] SASC 1; Attorney-General for the State of South Australia v Henriette Piepkorn [2005] SASC 425; Brogden v Attorney-General [2001] NZCA 20; Mitsubishi Motors Australia Ltd v Kowalski [2005] SASC 154; Russell v Polites Investments Pty Ltd [2011] SADC 30; Russell v Polites Investments Pty Ltd (No 2) [2015] SADC 128; Russell v Polites Investments Pty Ltd [2015] SASC 181; Russell v Polites Investments Pty Ltd [2016] SASC 129; Russell v Polites Investments Pty Ltd [2020] SASCFC 11; Russell v Polites Princes Group of Companies [2009] SADC 73; WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191, considered.

POLITES INVESTMENTS PTY LTD v RUSSELL
[2022] SASC 9
Supreme Court: Civil

DAVID JA: By Summons dated 7 May 2020, the applicant, Polites Investments Pty Ltd (‘Polites Investments’), made an application seeking orders to the effect that the respondent, Mr Douglas Charles Russell, be declared a vexatious litigant. Polites Investments seeks a declaration that Mr Russell ‘has persistently instituted vexatious proceedings’ against the applicant and associates of the applicant, and an order pursuant to s 39 of the Supreme Court Act 1935 (SA) (the ‘Act’) prohibiting him from ‘instituting further proceedings without permission of the Court against the [applicant] or any related body corporate, officer, employee, agent or advisor of the [applicant] without permission of the Court’.[1]
[1] Summons (FDN 1).
On 21 August 2020, Mr Russell brought an action by way of Cross Claim against Polites Investments seeking $3,000,000 compensation from Polites Investments, its CEO, Mr George Polites, its Rental Manager, Mr Peter Murphy, Justice Livesey (Polites Investment’s former Senior Counsel), Bar Chambers, Mr Kym Ryder, and O’Loughlins Lawyers. Polites Investments denies the allegations contained in the Cross Claim.
Background to the application
From at least 1977 to 6 November 2019, Polites Investments was the registered proprietor of a property situated at 254 Hindley Street, Adelaide (the ‘Premises’). Between 10 June 1999 and 29 August 2000, Mr Russell leased the ground floor of the Premises from Polites Investments. On or about 29 August 2000, Mr Russell was evicted from the Premises for breaches of the lease, including a failure to pay rent.
From 2000 to date, Mr Russell has issued numerous proceedings and appeals against Polites Investments, the history of which is set out below. Polites Investments submits that each of the following proceedings and the Cross Claim arise out of the same underlying factual situation — Mr Russell’s eviction from the Premises in August 2000.
Magistrates Court Proceedings
On 20 August 2000, Mr Russell initiated proceedings against Mr Con Polites of the Polites Group in the Magistrates Court of South Australia to stay his eviction from the Premises and/or seek relief against forfeiture (the ‘Magistrates Court Proceedings’). On 30 August 2000, the Magistrates Court Proceedings were heard by Senior Magistrate Gumpl. At that hearing, Mr Russell withdrew from the proceedings.[2]
[2] Copy of Record of AMCCI-00-11576 dated 30 August 2000.
Personal Injury Action
On 23 June 2003, Mr Russell issued proceedings against Polites Investments, Mr George Polites, and the Polities Group of Companies in the District Court of South Australia alleging personal injuries suffered during his tenancy at the Premises (the ‘Personal Injury Action’). In the Personal Injury Action, Mr Russell alleged that in October 1999, January 2000, and August 2000 he slipped while descending the stairs at the Premises and, on each occasion, injured his back. On 8 July 2009, after the close of the defendants’ case on the trial of that action, Judge Millsteed held there was no case to answer and dismissed the proceedings.[3] His Honour held that there was no evidence that the first defendant, the Polites Group, was a legal entity capable of being sued in its own name and that Mr Polites, in his capacity as director, was not liable for any tortious conduct of Polites Investments.[4] His Honour found that there was no case to answer on the following grounds:[5]
·Polites Investments did not breach any duty of care owed to Mr Russell;
·Mr Russell had failed to establish that the third fall was caused by the condition of the stairs; and
·By reason of an exclusion clause in the lease, Polites Investments could not be held liable in any event.
[3] Russell v Polites Princes Group of Companies [2009] SADC 73.
[4] Russell v Polites Princes Group of Companies [2009] SADC 73 at [79]-[86].
[5] Russell v Polites Princes Group of Companies [2009] SADC 73 at [101]-[109], [118], [120].
On 29 September 2010, Mr Russell filed a notice of appeal in this Court against the decision of Judge Millsteed which became Action 1293 of 2010 (the ‘Personal Injury Appeal’). The appeal was about 14 months out of time.
Damages Action
On 19 February 2007, Mr Russell commenced an action against Mr George Polites, Polites Investments, and various other Polites Group companies in the District Court in respect of losses allegedly suffered by reason of his eviction from the Premises in 2000 (the ‘Damages Action’). The action was statute barred. During the course of the Damages Action, Polites Investments (and other defendants in the action) obtained various interlocutory orders in their favour, including that the Statement of Claim be struck out. On 24 October 2008, Master Bampton (as her Honour then was) struck out the allegations against all defendants, other than Polites Investments, with no right to re-plead. As to the claim against Polites Investments, Master Bampton noted that the Amended Statement of Claim did not comply with the pleadings rules, was an abuse of process, and was a ‘clear and obvious case where the court should exercise its discretion and strike out the amended statement of claim’.[6] At this hearing, Master Bampton gave Mr Russell a final opportunity to re-plead his case against Polites Investments only.
[6] Copy of Record of DCCIV-07-256 dated 24 October 2008.
On 9 July 2009, Master Bampton stated that the further Statement of Claim filed by Mr Russell still suffered from the previously identified deficiencies and that he ‘still seeks to agitate his eviction from the premises in August 2000 and matters that were the subject of proceedings before Judge Millsteed’.[7] Master Bampton ordered that Mr Russell provide security for Polites Investments’ costs of defending the action in the sum of $15,000 (the ‘Security for Costs Order’).
[7] Copy of Record of DCCIV-07-256 dated 9 July 2009.
Mr Russell failed to comply with the Security for Costs Order and the Damages Action was stayed. On 22 January 2010, Polites Investments applied for the dismissal of the action. Mr Russell filed an application that he be permitted to proceed with the action without having to comply with the Security for Costs Order. On 31 May 2010, Master Blumberg dismissed Mr Russell’s application, dismissed the Damages Action for want of prosecution, and ordered that Mr Russell pay the costs of that action. On 16 September 2010, the District Court ordered an allocatur in respect of costs in the sum of $41,997.55 (the ‘Costs Order’).
First and Second Appeals against the Damages Action
On 18 October 2010, Mr Russell filed separate appeals against each Master’s decision; lodging notices of appeal against the Security for Costs Order made by Master Bampton (the ‘First Appeal against the Damages Action’) and against Master Blumberg’s order of 31 May 2010 dismissing the Damages Action (the ‘Second Appeal against the Damages Action’). Both appeals required permission. Mr Russell also sought an extension of time within which to institute the appeals. Subsequently, on 20 October 2010, Mr Russell filed an interlocutory application seeking orders that the allocatur filed by Polites Investments consequent upon the Costs Order made by Master Blumberg on 31 May 2010 be set aside.
On 23 March 2011, Judge Herriman refused permission to appeal and dismissed both notices of appeal in the Damages Action, as well as the application to set aside the allocatur.[8] His Honour held that both appeals were ‘frivolous, vexatious and an abuse of court process’.[9] In doing so, his Honour held that no satisfactory reasons had been given by Mr Russell for the delay in commencing both appeals to warrant an extension of time. In respect of Master Bampton’s decision, Judge Herriman held that Mr Russell was again seeking to challenge the validity of the lease and other contentions the subject of Judge Millsteed’s decision. His Honour considered that Mr Russell continued to fail to articulate a maintainable cause of action. Further, his Honour found that Mr Russell’s affidavit of 8 December 2010 made ‘scandalous accusations … of bias and corruption’.[10] His Honour stated that Mr Russell’s ‘repeated attempts at re-litigating a matter judicially determined against him, put him at risk of being declared a vexatious litigant’.[11]
[8] Russell v Polites Investments P/L [2011] SADC 30.
[9] Russell v Polites Investments P/L [2011] SADC 30 at [22], [34], [35(9)].
[10] Russell v Polites Investments P/L [2011] SADC 30 at [22].
[11] Russell v Polites Investments P/L [2011] SADC 30 at [35(9)].
On 5 April 2011, Mr Russell filed a notice of appeal in this Court in Action 1293 of 2010 against the judgment of Judge Herriman dismissing the appeals from the decisions of the Masters (the ‘Damages Supreme Court Appeal’). Both this appeal and the Personal Injury Appeal lapsed as they were not set down within six months.[12]
[12] Supreme Court Civil Rules 2006 (SA) r 296(2), as repealed by Uniform Civil Rules 2020 (SA) r 1.3.
Second Damages Action
On 15 June 2010, Mr Russell issued further proceedings in the Magistrates Court in virtually identical terms to the Damages Action (the ‘Second Damages Action’). On 10 August 2010, the Magistrates Court dismissed the Second Damages Action on the basis that it amounted to an abuse of process.[13]
[13] Copy of Record of AMCCI-10-3036 dated 10 August 2010; Russell v Polites Investments P/L [2011] SADC 30 at [7.4].
On 5 October 2011, Mr Russell filed a notice of appeal in this Court against the dismissal of the Second Damages Action. On 29 November 2011, the Second Damages Action appeal was struck out as ‘incompetent’.[14]
[14] Order Dismissing Appeal (FDN 6) in SCCIV-11-1500.
Bankruptcy and Federal Magistrates Court Proceedings
On 29 October 2010, Polites Investments commenced proceedings in the Federal Magistrates Court seeking a sequestration order against Mr Russell, founded on him failing to pay the Costs Order (the ‘Federal Magistrates Court Proceedings’). On 20 December 2010, Registrar Christie made a sequestration order against Mr Russell.
On 20 December 2010, Mr Russell was declared bankrupt.
On 7 February 2011, Mr Russell filed an application for review of the sequestration order. On 16 January 2012, this application for review was dismissed. On 17 May 2012, Mr Russell instituted an application for leave to the High Court in respect of the dismissal of the application for review in the Federal Magistrates Court Proceedings. Leave to the High Court was refused.
Mr Russell was discharged from bankruptcy due to the effluxion of time on 13 June 2015.
2015 Applications in the Damages Action
On 4 March 2015, Polites Investments filed a short form claim for costs in the sum of $13,898.71 against Mr Russell. The claim substantially comprised an account for $11,000 from Senior Counsel for an attendance to argue the First and Second Appeals against the Damages Action. As Mr Russell did not file anything in response to this claim, on 15 April 2015, the Registrar issued an allocatur against Mr Russell in the sum of $13,898.71.
In 2015, Mr Russell filed multiple applications in the Damages Action. On 1 June 2015, two of the applications (FDN 43 and 46) were heard by Master Blumberg, who considered the applications ‘to be collateral challenges to decisions made in this Action as well as in another Action determined by Judge Millsteed as well as decisions made in the Federal Court’.[15] Master Blumberg held that ‘there is no merit in those applications as a vehicle for the orders sought’ and dismissed the applications.[16] On 17 June 2015, Mr Russell appealed this decision to the District Court.
[15] Russell v Polites Investments Pty Ltd (No 2) [2015] SADC 128 at [44].
[16] Russell v Polites Investments Pty Ltd (No 2) [2015] SADC 128 at [44].
The appeal was heard by Judge Stretton. In the hearing, it was common ground that Polites Investments was seeking to bankrupt Mr Russell based on its costs claim and subsequent allocatur, together with other costs it was awarded in the Federal Court against Mr Russell some years ago. In respect of that costs claim, Judge Stretton said:[17]
The defendant has done nothing to pursue the order for costs it obtained in 2011 before Judge Herriman for four years, nor indeed to pursue other costs obtained before the Federal Court in 2012 over the plaintiff’s bankruptcy appeal, yet now when the plaintiff is emerging from his extended bankruptcy has it lodged a short form claim for costs, secured an allocatur, and is proposing to bankrupt him a second time over a cost claim it has done nothing to enforce for four years.
It mailed its claim for costs to a last known mailing address, and when there was no response, it obtained in this court an allocatur for the full amount claimed. Whilst I have not heard argument on it and therefore express no final view, it is far from clear that anything like such an amount would have been allowed on taxation, nor that the matter was fit for senior counsel.
So there has not only been no substantive consideration of the plaintiff’s claim before it’s dismissal, but there has also been no substantive assessment of the costs claimed pursuant to the appeal against that dismissal, which costs are now being used to bankrupt the defendant again.
It is in that context that the plaintiff made the applications currently in question to the Master.
[17] Russell v Polites Investments Pty Ltd (No 2) [2015] SADC 128 at [30]-[33].
On 16 September 2015, Judge Stretton allowed Mr Russell’s appeal, quashed the decision of Master Blumberg made on 1 June 2015, stayed the enforcement of the costs order made by Judge Herriman against Mr Russell pending the hearing of his appeal to the Supreme Court, and quashed the District Court allocatur for $13,898.71. His Honour, held that the ‘justice of the case’ required those orders.[18] In his judgment, Judge Stretton stated:[19]
[I]t is important that courts exercise patience and care when dealing with impecunious litigants in person who are attempting to exercise their important right, as any other citizen, of access to courts to secure, protect or defend their legal interests.
[18] Russell v Polites Investments Pty Ltd (No 2) [2015] SADC 128 at [65].
[19] Russell v Polites Investments Pty Ltd (No 2) [2015] SADC 128 at [41].
Third Appeal against the Damages Action (Action 934 of 2015)
On 10 August 2015, Mr Russell filed fresh proceedings in this Court, which contained a notice of appeal to the Full Court against the decision of Judge Herriman dismissing the First and Second Appeals against the Damages Action (the ‘Third Appeal against the Damages Action’).
Mr Russell also sought to pursue the appeals lodged in the Supreme Court Action 1293 of 2010. Those appeals being the Personal Injury Appeal against Judge Millsteed’s decision in the Personal Injury Action in September 2010 and the Damages Supreme Court Appeal filed against the decision of Judge Herriman in April 2011.
On 12 August 2015, Mr Russell filed an interlocutory application seeking to have the appeals in Action 1293 of 2010 listed for hearing before the Full Court. That application was dismissed by Peek J on 12 November 2015. His Honour considered that the prospects of success on any appeal from Judge Herriman (for which permission was required) was ‘virtually nil’ and any appeal from Judge Millsteed in the Personal Injury Action was ‘extremely low’.[20] Justice Peek declared that any appeal instituted in Action 1293 of 2010 was taken to have been discontinued and had lapsed.[21]
[20] Russell v Polites Investments Pty Ltd [2015] SASC 181 at [33]-[34].
[21] Russell v Polites Investments Pty Ltd [2015] SASC 181 at [17].
In his Honour’s judgment, Peek J stated that he had spent ‘a good deal of time’ considering various aspects of the Personal Injury Action, Damages Action and Action 1293 of 2010.[22] His Honour said:[23]
I would echo the wise words of Judge Herriman in his judgment reproduced above: “I have found the appellant’s pursuit of both appeals to be frivolous, vexatious and an abuse of process and, indeed, his repeated attempts at re-litigating a matter already judicially determined against him, put him at risk of being declared a vexatious litigant.” This risk is accentuated by Mr Russell’s conduct since 23 March 2011, the date of Judge Herriman’s judgment.
[22] Russell v Polites Investments Pty Ltd [2015] SASC 181 at [38].
[23] Russell v Polites Investments Pty Ltd [2015] SASC 181 at [39].
On 12 January 2016, Mr Russell filed a notice of appeal from the judgment of Peek J. In this notice, Mr Russell sought permission to appeal and orders for new trials for his claims for damages for personal injury and breach of lease.[24] On 26 February 2016, Mr Russell filed two interlocutory applications seeking an extension of time for the provision of the appeal books in relation to both appeals. Mr Russell also brought a third interlocutory application in effect seeking discovery from various individuals and entities. On 21 April 2016, Polites Investments filed an interlocutory application seeking to have Mr Russell’s notice of appeal against the judgment of Peek J summarily dismissed, or in the alternative, struck out.
[24] Russell v Polites Investments P/L [2016] SASC 129 at [18] per Stanley J.

On 17 August 2016, Stanley J summarily dismissed the notice of appeal from the judgment of Peek J, dismissed the applications for discovery, and considered it unnecessary to determine the applications for extensions of time. Justice Stanley held:[25]
Having regard to the reasons of Peek J, I am satisfied that there is no appealable error identified or identifiable. The appellant has not put forward any arguable ground of appeal. Neither has he put forward any reason why an extension of time should be granted or why permission to appeal should be granted. The appeal is well out of time and, in my view, without merit. I am satisfied it is clear beyond argument that the appeal must fail.
(citation omitted)
[25] Russell v Polites Investments P/L [2016] SASC 129 at [44].
Further, Stanley J considered that if the appeal was not struck out, Polites Investments would ‘suffer prejudice with further costs and inconvenience in dealing with actions that concern events that occurred in 2000’.[26] His Honour considered that the notice of appeal was ‘frivolous, vexatious and an abuse of process’.[27]
[26] Russell v Polites Investments P/L [2016] SASC 129 at [47].
[27] Russell v Polites Investments P/L [2016] SASC 129 at [48].
On 21 September 2016, Mr Russell filed a notice of appeal against the decision of Stanley J.
In August 2017, Doyle J heard various applications made by Mr Russell in Action 1293 of 2010 and the Third Appeal against the Damages Action (Action 934 of 2015). After considering the history of the matter, his Honour observed that the decision of Peek J may well have only addressed the appeals in Action 1293 of 2010 and not the Third Appeal against the Damages Action. Doyle J noted that ‘the net effect of Peek J’s decision was that the appeals against Judge Millsteed and Judge Herriman in [Action] 1293 are taken to have been discontinued and to have lapsed’.[28] His Honour also noted that Stanley J only dismissed the notice of appeal against the decision of Peek J, and on one view, the Third Appeal against the Damages Action remained extant.
[28] Ex tempore reasons of Doyle J given on 25 August 2017 at 2.
As to Action 1293 of 2010, Doyle J noted that the only outstanding matter in that action was Mr Russell’s application seeking an extension of time and permission to appeal. His Honour said it was unclear what this application related to and dismissed the application.
As to the Third Appeal against the Damages Action, Doyle J noted that this was in effect a second appeal against the decision of Judge Herriman, the first appeal having been dealt with in substance by Peek J. In any event, Doyle J dismissed the appeal on the ground it lacked merit and by reason of it being in substance an impermissible second appeal in respect of a single decision. There were also two other applications instituted within Action 934 of 2015, the Third Appeal against the Damages Action. The first was a purported appeal from the decision of Stanley J, which had lapsed because it had not been set down within six months. The second was an application for an extension of time and for permission to appeal. Justice Doyle considered that the import of the application was unclear in that it might have been an attempt to re-agitate the appeal from Judge Herriman or an attempt to agitate the lapsed appeal from Stanley J. Justice Doyle dismissed the application on either construction on the basis it lacked merit. His Honour said:[29]
To the extent that FDN 13 is, as [counsel for the applicant] apprehended it might be, an attempt to reinstate or re-agitate the appeal from Judge Herriman in FDN 1, I consider that it should be dismissed as consequential upon my dismissal of that appeal a few moments ago. To the extent that it relates to an attempt to agitate the appeal from Stanley J that is FDN 11, and that has lapsed, I do not consider that the application has merit. I do not consider that adequate explanation has been given for allowing that appeal to lapse or for it being appropriate to now order that it be set down or that the necessary or any necessary extension of time be granted.
[29] Ex tempore reasons of Doyle J given on 25 August 2017 at 6.
Justice Doyle also remarked that Mr Russell had attempted to file a number of documents with the Registry when there was no occasion for the filing of those documents. His Honour considered that the documents contained ‘a mass of largely incoherent material that in my view has no place on the court file and indeed involves an abuse of the court’s processes’.[30]
[30] Ex tempore reasons of Doyle J given on 25 August 2017 at 7-8.
The Full Court Proceedings
On 13 September 2017, Mr Russell filed a notice of appeal against the decisions of Peek, Stanley and Doyle JJ. On 14 December 2017, the proceedings were referred to the Full Court of the Supreme Court of South Australia (the ‘Full Court Proceedings’).
In the Full Court Proceedings, Mr Russell filed two interlocutory applications seeking damages or costs in the amount of $3 million against Polites Investments and others due to their ‘fraud and perjuries’ and ‘omissions and conspiracies to cause harm and damages [and] bankruptcies and others’.[31]
[31] Russell v Polites Investments Pty Ltd [2020] SASCFC 11 at [76].
On 26 February 2020, the Full Court (comprising Nicholson J, Parker J and David AJ) delivered judgment in the Full Court Proceedings. Justice Parker (with whom Nicholson J and David AJ agreed) held:[32]
[T]here is no merit in the various contentions advanced by Mr Russell. He has failed to identify any appealable error in relation to the judgments of Judge Herriman and Judge Millsteed or in the subsequent consideration by Peek, Stanley and Doyle JJ. His dissatisfaction with the outcome is not a valid ground of appeal.
[32] Russell v Polites Investments Pty Ltd [2020] SASCFC 11 at [83].
The Full Court refused Mr Russell permission to appeal against the orders made by Peek J on 12 November 2015, Stanley J on 17 August 2016, and Doyle J on 25 August 2017, insofar as those orders related to appeals lodged against the orders made by Judges Herriman and Millsteed.[33] The Registry was directed not to accept further documents from Mr Russell that:[34]
·Related to Action 1293 of 2010 (the Personal Injury Appeal and the Damages Supreme Court Appeal);
·Related to Action 934 of 2015 (the Third Appeal against the Damages Action);
·Sought to appeal against the orders made by Judge Millsteed in the Personal Injury Action;
·Sought to appeal against the orders made by Judge Herriman in the First and Second Appeals against the Damages Action; or
·Sought to appeal against the orders made by Peek, Stanley and Doyle JJ in respect of appeals against the orders made by Judge Millsteed in the Personal Injury Action and the orders made by Judge Herriman in the First and Second Appeals against the Damages Action.
·(together, the ‘Full Court Orders’)
[33] Russell v Polites Investments Pty Ltd [2020] SASCFC 11 at [123], [125].
[34] Russell v Polites Investments Pty Ltd [2020] SASCFC 11 at [130].
As to the damages or costs sought by Mr Russell in the order of $3 million, the Full Court dismissed the two interlocutory applications. The Court held that Mr Russell was, in reality, seeking damages ‘on the basis of various allegations of misconduct’.[35] The Court held that there was ‘no merit in any of the various contentions advanced by Mr Russell’.[36]
[35] Russell v Polites Investments Pty Ltd [2020] SASCFC 11 at [128].
[36] Russell v Polites Investments Pty Ltd [2020] SASCFC 11 at [128].
As to Mr Russell’s allegation that Judge Millsteed had acted unfairly in the trial of the Personal Injury Action, the Full Court said that the allegations had no basis in law or fact.[37] The Court also held that there was no basis for Mr Russell’s sweeping allegations of perjury and fraud against counsel and witnesses.[38]
[37] Russell v Polites Investments Pty Ltd [2020] SASCFC 11 at [117].
[38] Russell v Polites Investments Pty Ltd [2020] SASCFC 11 at [119].
On 10 March 2020, Mr Russell filed a document entitled ‘Submission’ in opposition to the proposed costs order to be made by the Full Court. The Submission sought ‘A STAY OF EXECUTION on both Appeals Judgments or any Costs Orders pending the [respondent’s] High Court Appeal and Judgment’.[39] On 11 March 2020, the Court wrote to Mr Russell confirming that he would be ordered to pay Polites Investments’ costs of the appeal on a party-party basis.
[39] Exhibit KDR-11 of the Affidavit of Mr Ryder affirmed 7 May 2020 (FDN 2) (emphasis in original).
Although numerous cost orders have been made against Mr Russell, neither Polites Investments nor its associates have ever received any costs from the respondent.
Cross Claim
In respect of the current Cross Claim, this proceeding was initially commenced against a number of respondents including Polites Investments, Mr Polites, O’Loughlins Lawyers and Mr Ryder (Polites Investments’ solicitors), and Justice Livesey (as he then was) and Bar Chambers. On 2 September 2020, Judge Bochner ordered that all respondents, other than Polites Investments, were removed as parties to the Cross Claim.
It is upon the basis of this procedural history that Polites Investments seeks to have Mr Russell declared a vexatious litigant pursuant to s 39 of the Act. In support of its application, Polites Investments relies on the filed affidavit of Mr Kym Ryder sworn on 7 May 2020.
Mr Russell’s submissions
Mr Russell filed six affidavits in respect of the s 39 application and Cross Claim.[40] In the affidavits Mr Russell makes various assertions which are mainly incomprehensible, but in effect, seek to re-litigate the Personal Injury Action and Damages Action. Mr Russell also makes wideranging unsubstantiated and scandalous allegations against various persons previously involved in his litigation, the detail of which is not necessary to repeat or summarise.
[40] Affidavit of Mr Russell affirmed 19 August 2020 (FDN 10); Affidavit of Mr Russell affirmed 25 March 2021 (FDN 27); Affidavit of Mr Russell affirmed 30 March 2021 (FDN 30); Affidavit of Mr Russell affirmed 21 May 2021 (FDN 40); Affidavit of Mr Russell affirmed 27 May 2021 (FDN 41); Affidavit of Mr Russell affirmed 2 June 2021 (FDN 44).
After the hearing of this matter was concluded, Mr Russell also sought to reopen the proceedings to call various witnesses to give evidence on the s 39 application and Cross Claim.[41] Mr Russell wished to subpoena Mr Polites, Mr Murphy, and Mr Vormelker to give evidence.[42] The import of this application was to in effect re-litigate the various actions relating to the same underlying factual situation, namely Mr Russell’s eviction from the Premises in August 2000. I do not consider the evidence of any of those witnesses as relevant to the s 39 application or Cross Claim. I therefore decline the application.
[41] Interlocutory Application (FDN 43).
[42] Affidavit of Mr Russell affirmed 2 June 2021 (FDN 44) at [1]-[2].
In considering the applications before me, I note that Mr Russell is unrepresented. I make allowance for that fact in considering his submissions and ultimately, whether I should exercise my discretion to make an order under s 39 of the Act against him.
Legal principles
Section 39 of the Act provides:
39—Vexatious proceedings
(1)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.
(2)Where it appears to a prescribed court that there are proper grounds for an application under this section, it may refer the matter to the Attorney-General for consideration.
(3)An order under this section remains in force (subject to variation by the court)—
(a)if a period for the operation of the order is fixed—until the expiration of that period or the revocation of the order (whichever first occurs);
(b)if no such period is fixed—until revocation of the order.
(4)Where an order is made under this section, a copy of the order must be published in the Gazette.
(5)For the purposes of this section, proceedings are vexatious—
(a)if instituted to harass or annoy, to cause delay, or for any other ulterior purpose; or
(b)if instituted without reasonable ground.
(6)In this section—
prescribed court means—
(a)the Supreme Court; or
(b)any other court of the State; or
(c)the South Australian Employment Tribunal; and
(d)any other tribunal of the State prescribed by the regulations;
proceedings means civil or criminal proceedings instituted in a prescribed court.
In Attorney-General v Kowalski, Blue J described the purpose of s 39 as follows:[43]
The rationale purpose of section 39 is to regulate the commencement and prosecution in future of proceedings by a person who is found in the past to have instituted vexatious proceedings. The form of the regulation is not to prohibit absolutely the institution of proceedings in future, but rather first to require the permission of the Court, thereby imposing an obligation on the litigant to demonstrate that the proposed proceeding has some merit.
The manifest purpose of section 39 is to enable the protection of courts against unjustified use of their time and resources and protection of opposing litigants against incurring time and cost in defending applications without merit or made for an improper purpose.
[43] [2014] SASC 1 at [918]-[919].
To enliven the Court’s discretion to make an order under s 39(1) of the Act, an ‘interested person’ must satisfy four pre-conditions. First, that the respondent has instituted proceedings. Second, the proceedings were instituted in a prescribed court. Third, the proceedings were vexatious proceedings, meaning they were instituted ‘to harass or annoy, to cause delay, or for any other ulterior purpose’ or ‘without reasonable ground’. Fourth, that such proceedings have been instituted persistently.
‘Interested person’
To fall within the ambit of s 39 of the Act, an application must be brought by the Attorney-General or an ‘interested person’.[44] The Act is silent as to a definition of ‘interested person’. In WorkCover Corporation of South Australia v Moore-McQuillan (‘Moore-McQuillan’), Blue J held that WorkCover was an interested person within the meaning of s 39 as it was the defendant or respondent in the majority of matters alleged to have been vexatious proceedings instituted by the respondent in that matter.[45]
[44] Supreme Court Act 1935 (SA) s 39(1).
[45] [2016] SASC 191 at [331]-[332].
In this matter, Mr Russell has instituted a large number of proceedings against Polites Investments over almost 20 years. Most of those proceedings are alleged to be vexatious. There have also been substantial costs orders made against Mr Russell, and notwithstanding those orders, no costs have been paid. In those circumstances, I am satisfied Polites Investments is an interested person for the purposes of s 39 of the Act.
‘Institute proceedings’
To enliven s 39 of the Act, the Court must be ‘satisfied that a person has persistently instituted vexatious proceedings’.[46] Under the Act, ‘proceedings’ are defined as ‘civil or criminal proceedings instituted in a prescribed court’.[47] In both Moore-McQuillan and Attorney-General v Kowalski, Blue J considered that determining whether a particular type of application falls within the definition of ‘proceedings’ under s 39 should be assessed as a matter of substance rather than form, or by reference to the name applied to the particular application.[48] In Moore‑McQuillan, his Honour summarised the general principles derived from the wording, context and evident purpose of s 39 as follows:[49]
1.An action in which a party seeks a final determination of a justiciable issue or the exercise of any like power vested in the court (whether by way of action, cross action or third party action) is a “proceeding”.
2.An appeal from a judgment or order is a separate “proceeding” to the original application in respect of which the judgment or order was made (whether the appeal is to a different court or to the same court in which the original judgment or order was made).
3.An application to set aside a judgment or order which is substantively similar to an appeal should be treated in the same way as an appeal against the judgment or order would be treated.
4.An application which is interlocutory in nature relating to a matter incidental to the action as opposed to substantive rights is generally not a “proceeding”.
5.Even though an interlocutory application of the type referred to in 4 is not a “proceeding”, nevertheless an appeal from (or application to set aside) an order on such an interlocutory application is a “proceeding”.
(citations omitted)
[46] Supreme Court Act 1935 (SA) s 39(1).
[47] Supreme Court Act 1935 (SA) s 39(6).
[48] [2016] SASC 191 at [358]; [2014] SASC 1 at [923].
[49] [2016] SASC 191 at [359].
Polites Investments submits that ‘[i]n view of the above principles, it is clear that each of Mr Russell’s first instance proceedings, as well as various appeals and the Cross Claim, is a “proceeding” for the purposes of s 39’.[50] Considering the general principles enunciated by Blue J in Moore-McQuillan, I agree with Polites Investments’ submission that Mr Russell’s first instance proceedings and various appeals fall within the meaning of ‘proceedings’ for the purposes of s 39 of the Act.
[50] Applicant’s Outline of Submissions (FDN 20) at [23] (emphasis in original).
As to the question of what it means to ‘institute’ proceedings for the purposes of s 39 of the Act, Blue J in both Attorney-General v Kowalski and Moore‑McQuillan held that the word ‘institute’ is used in s 39 of the Act in its ‘broadest sense to encompass the full gamut of the prosecution of a proceeding from beginning to end’.[51] As such, proceedings have been ‘instituted’ even if they never reach final hearing and determination.[52] In Attorney-General v Kowalski, Blue J considered that both seeking leave to appeal and seeking an extension of time to appeal are sufficient to ‘institute’ proceedings under s 39 of the Act.[53] It should be noted that the interlocutory proceeding heard by Master Blumberg in which Mr Russell filed an application seeking that he be permitted to proceed in the Damages Action without having to comply with the Security for Costs Order would not meet the definition of instituting proceedings. Polites Investments submits that ‘each first instance proceeding commenced by Mr Russell, each appeal lodged by Mr Russell, each application for leave to appeal made by Mr Russell, and the Cross Claim is a proceeding instituted by Mr Russell for the purposes of s 39’.[54] Again, I agree with this submission.
[51] [2014] SASC 1 at [930]; [2016] SASC 191 at [365].
[52] [2014] SASC 1 at [931]; [2016] SASC 191 at [366].
[53] [2014] SASC 1 at [939].
[54] Applicant’s Outline of Submissions (FDN 20) at [25].
‘Prescribed court’
A prescribed court is defined as the Supreme Court or ‘any other court of the State’ under s 39 of the Act.[55] Mr Russell has issued various proceedings and appeals, as set out above, in the Magistrates Court, the District Court and the Supreme Court of South Australia which are ‘prescribed courts’ for the purposes of s 39 of the Act. I note that Mr Russell’s application for review of the sequestration order and his application for leave to the High Court in respect of the dismissal of his application for review of the Federal Magistrates Court Proceedings are not directly relevant to this application as these proceedings were not instituted in a prescribed court. However, these proceedings form part of the overall context in which the proceedings in the South Australian courts should be considered.
[55] Supreme Court Act 1935 (SA) s 39(6).
‘Vexatious proceedings’

The main issue in this application is whether, for the purposes of s 39, the proceedings instituted by Mr Russell against Polites Investments over the past two decades are ‘vexatious’, and whether Mr Russell has persistently instituted those ‘vexatious’ proceedings.
Section 39(5) of the Act defines proceedings as ‘vexatious’ if they are ‘instituted to harass or annoy, to cause delay, or for any other ulterior purpose’ or ‘instituted without reasonable ground’. Polites Investments relies principally on
s 39(5)(b) of the Act in support of its application and submits that Mr Russell has persistently instituted proceedings without reasonable grounds.
Proceedings instituted ‘without reasonable ground’
Whether proceedings are instituted without reasonable ground is an objective consideration.[56] As such, the motive or subjective state of mind of the litigant is irrelevant under s 39(5)(b) of the Act.[57] In Attorney-General for the State of South Australia v Henriette Piepkorn, Layton J, in reference to the meaning of s 39(5)(b), said:[58]
·It is an objective question to be determined by examining the number and nature of proceedings which have been instituted by the defendant.
·…
·The proper approach is for the Court to assess whether the proceeding instituted was utterly hopeless or had no prospect of success.
·In assessing whether the proceedings fulfilled that characterisation, the Court is to have regard to the reasons given; the orders made; other observations made by the court in those proceedings; and whether there has been a successful strike out of the proceeding as disclosing no reasonable cause of action.
(citations omitted)
[56] Attorney-General v Kowalski [2014] SASC 1 at [1044] ; Attorney-General for the State of South Australia v Henriette Piepkorn [2005] SASC 425 at [8] per Layton J.
[57] Attorney-General v Kowalski [2014] SASC 1 at [1044].
[58] [2005] SASC 425 at [8].
Polites Investments contends that a review of the proceedings instituted by Mr Russell discloses that each of the proceedings were instituted without reasonable ground, with the possible exception of the initial Personal Injury Action commenced in 2003. Polites Investments submits that ‘[i]n the circumstances, there cannot be any dispute that Mr Russell has instituted multiple proceedings without reasonable ground’.[59]
[59] Applicant’s Outline of Submissions (FDN 20) at [29].
After carefully considering Mr Russell’s litigious history against Polites Investments and the reasons of the judicial officers who heard the various proceedings, I agree with Polites Investments’ submission that most of the proceedings were vexatious within the meaning of s 39(5) of the Act (with the exception of the initial Personal Injury Action) as they were not based upon any reasonable ground.
As to the first instance proceedings, the Damages Action was statute barred. During the course of the Damages Action, Master Bampton struck out the allegations against all defendants, other than Polites Investments with no right to re-plead. Master Bampton held that a further Statement of Claim filed by Mr Russell suffered from previously identified deficiencies and that he sought to

re-agitate matters finally determined by Judge Millsteed. In May 2010, Master Blumberg dismissed the Damages Action for want of prosecution. I am satisfied the Damages Action was a proceeding instituted by Mr Russell without reasonable cause in that it was an attempt to re-litigate matters finally determined by Judge Millsteed and was therefore destined to fail.
The Second Damages Action instituted in the Magistrates Court was in almost identical terms to the Damages Action. The Magistrates Court dismissed the claim on the basis that it amounted to an abuse of process. The Second Damages Action appeal was also struck out as ‘incompetent’.[60] In those circumstances, I am also satisfied that the Second Damages Action was a proceeding instituted by Mr Russell without reasonable cause in that it was an attempt to re-litigate matters finally determined by Judge Millsteed and it was therefore destined to fail.
[60] Order Dismissing Appeal (FDN 6) in SCCIV-11-1500.
As to the appeal proceedings, the First and Second Appeals against the Damages Action were dismissed by Judge Herriman. In so doing, his Honour found that Master Bampton had properly held that Mr Russell had not satisfied the Court that he had any arguable claim.[61] As to the challenge to the validity of the lease, Judge Herriman held that the contention having been finally determined and rejected in the Personal Injury Action, Mr Russell was estopped from raising it.[62] As to both appeals, Judge Herriman found they were ‘frivolous, vexatious and an abuse of court process’ and his Honour warned Mr Russell that he was ‘at risk of being declared a vexatious litigant’.[63] Having reviewed those proceedings and the reasons for judgment of Judge Herriman in dismissing both appeals it is clear that Mr Russell failed to give any satisfactory explanation for the lengthy delay in instituting the appeals and did not articulate a maintainable cause of action nor any arguable point on appeal. In those circumstances, I am satisfied the appeal was not based on any reasonable ground and was a vexatious proceeding.
[61] Russell v Polites Investments P/L [2011] SADC 30 at [20].
[62] Russell v Polites Investments P/L [2011] SADC 30 at [21].
[63] Russell v Polites Investments P/L [2011] SADC 30 at [35(9)].
Action 1293 of 2010, that is, Mr Russell’s application requesting the appeals from the decisions of Judges Millsteed and Herriman be listed for hearing was dismissed by Peek J in 2015. In the reasons for judgment, his Honour was damning as to Mr Russell’s prospects of success on appeal. Justice Peek reiterated Judge Herriman’s ‘wise words’ that Mr Russell’s ‘repeated attempts at re-litigating a matter already judicially determined against him, put him at risk of being declared a vexatious litigant’.[64] Upon a review of the proceedings and the judgment of Peek J, it is clear that the appeal proceedings disclosed no arguable ground of appeal and were simply an attempt by Mr Russell to again dispute contentions finally determined by Judge Millsteed in the Personal Injury Action. Accordingly, the application to appeal was a vexatious proceeding in that it was instituted without reasonable ground and was destined to fail.
[64] Russell v Polites Investments Pty Ltd [2015] SASC 181 at [39].
As to Mr Russell’s notice of appeal from Peek J’s judgment, the appeal notice was summarily dismissed by Stanley J. His Honour held that there was no appealable error identified or identifiable and that Mr Russell had not put forward any arguable ground of appeal. [65] Justice Stanley considered that the appeal was well out of time and without merit.[66] Accordingly, the application for permission to appeal was a vexatious proceeding instituted without reasonable ground and was destined to fail.
[65] Russell v Polites Investments P/L [2016] SASC 129 at [42], [44].
[66] Russell v Polites Investments P/L [2016] SASC 129 at [44].
Mr Russell’s applications for permission to appeal in Action 1293 of 2010 and the Third Appeal against the Damages Action (Action 934 of 2015) were dismissed by Doyle J. As summarised earlier, in respect of the application in Action 1293 of 2010 seeking an extension of time and permission to appeal, Doyle J said it was unclear what this application related to and dismissed the application. As to the Third Appeal against the Damages Action, Doyle J dismissed the appeal on the ground it lacked merit and by reason of it being, in substance, an impermissible second appeal in respect of a single decision. As to the purported appeal from the decision of Stanley J, it was dismissed as having lapsed because it had not been set down within six months. In respect of a further application for an extension of time and for permission to appeal, Doyle J dismissed the application on the basis it lacked merit. I am satisfied that each of the applications for permission to appeal before Doyle J were without merit and destined to fail and accordingly, were vexatious proceedings as they were instituted without reasonable grounds.
As to Mr Russell’s appeal against the orders of Peek, Stanley and Doyle JJ, the Full Court refused to grant permission to appeal and dismissed the appeal. The Full Court found that Mr Russell had failed to identify any appealable error in relation to any of the impugned decisions and that the appeals had no prospect of success. As to the appeal against the orders of Stanley J in Action 1293 of 2010, notwithstanding that the matter had lapsed and had been taken to have been discontinued, the Full Court held that it was ‘obvious’ the appeal could not succeed.[67] Upon a review of the Full Court judgment, it is clear that the appeals and the contentions raised on those appeals were not based on any reasonable ground and accordingly, the proceedings were vexatious.
[67] Russell v Polites Investments Pty Ltd [2020] SASCFC 11 at [127] per Parker J (with whom Nicholson J and David AJ agreed).
As can be gleaned from the history of the parties’ litigious relationship, Mr Russell has sought to agitate and re-agitate substantially the same issues in numerous forums before multiple judicial officers. On the majority of those occasions, the Court has not found in Mr Russell’s favour and has found that his contentions were without merit and could not succeed. On at least two occasions, the Court has expressly cautioned Mr Russell that his litigious conduct put him at risk of being declared a vexatious litigant.
I am satisfied that each of the abovementioned proceedings were vexatious in that they were instituted without reasonable grounds. Given my findings in that regard, it is not necessary to go on to consider the first limb of the definition of vexatious in s 39(5)(a) of the Act and whether the proceedings were instituted ‘to harass or annoy, to cause delay, or for any other ulterior purpose’.
‘Persistently’
As to the question of whether Mr Russell has persistently instituted vexatious proceedings, the term ‘persistently’ is not defined in the Act. In Andrew Garrett Wines Resorts Pty Ltd v National Australia Bank Ltd, this Court held that the term ‘persistently’ should be given its ordinary meaning.[68]
[68] [2007] SASC 173 at [83] per Anderson J.
In Mitsubishi Motors Australia Ltd v Kowalski,[69] Bleby J approved the following statement in Brogden v Attorney-General:[70]
What constitutes institution of such proceedings ‘persistently’ will not depend merely on the number of them but, just as importantly, on their character, their lack of any reasonable ground and the way in which they have been conducted. A litigant may be said to be persisting in litigating 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 take 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 a defendant against whom a prior proceeding has failed.
[69] [2005] SASC 154 at [277].
[70] [2001] NZCA 208 at [21].
Thus, the factors to be taken into account in assessing whether Mr Russell has persistently instituted vexatious proceedings include the number of proceedings, their character, the extent to which they represent attempts to re‑litigate issues already conclusively determined, and the extent to which unsubstantiated, scandalous allegations are made.[71]
[71] WorkCover Corporation of South Australia v Moore-McQuillan [2016] SASC 191 at [991] per Blue J.
In this matter, Mr Russell has over the past 20 years instituted multiple proceedings against Polites Investments at first instance and on appeal which arise out of the same factual circumstances involving his eviction from the Premises in 2000 that in effect, seek the same relief. Those proceedings have invariably been held to have no merit. On some occasions, the prosecution of the action has involved Mr Russell making scandalous and unsubstantiated allegations against various individuals. Mr Russell continues to make such allegations in the current Cross Claim. Having regard to the number of proceedings instituted by Mr Russell against Polites Investments, that most of the proceedings are an attempt to re‑litigate contentions finally determined by Judge Millsteed, and the scandalous and unsubstantiated allegations made by Mr Russell against various persons including judicial officers, I am satisfied that Mr Russell has instituted vexatious proceedings persistently.
I turn now to the exercise of my discretion as to whether to make the order sought under s 39 of the Act. I consider it appropriate to make the order sought for the following reasons: Mr Russell has instituted vexatious proceedings against Polites Investments over an extended period of time; all of the proceedings I have found to be vexatious were instituted without reasonable grounds and had little or no merit; Polites Investments has incurred considerable costs in dealing with the various actions and appeals and has recovered none of its costs despite the orders of various courts; and finally, during several of the proceedings Mr Russell has made scandalous and unsubstantiated allegations of fraud and perjury against several persons. Mr Russell continues to make those allegations in the current Cross Claim. In reaching my conclusion, I have not overlooked the Full Court Orders and the fact that until the s 39 application was filed, Mr Russell had instituted no further proceedings against Polites Investments in accordance with the Full Court Orders. Notwithstanding that fact, the preconditions of s 39 of the Act have been satisfied, and bearing in mind the time and costs incurred by Polites Investments and the impact of the vexatious proceedings on the court system, I consider that it is appropriate to exercise my discretion to declare Mr Russell a vexatious litigant and to make the orders sought by Polites Investments.
Cross Claim
Mr Russell initially brought a Cross Claim against Polites Investments, its CEO, Rental Manager, and lawyers on the basis of fraud, perjury and false and misleading statements allegedly made to the Court. In his Cross Claim, Mr Russell seeks an order that Polites Investments and its associates named in the Cross Claim pay $3,000,000 in compensation.
Mr Russell submits that the facts and proof of the alleged perjury and fraud of the parties is found in transcripts and submissions to the Courts.[72]
[72] Cross Claim (FDN 9).
On 2 September 2020, Judge Bochner ordered that all respondents to the Cross Claim, other than Polites Investments, were removed as parties to the Cross Claim.
Polites Investments submits that to the extent that the allegations in the Cross Claim can be understood, they appear to seek to re-agitate the two interlocutory applications that were before the Full Court and which were determined to have no merit. Polites Investments denies all of the allegations contained in the Cross Claim and submits that:[73]
The Cross Claim is entirely without merit — no cause of action known to law is disclosed — and is vexatious and scandalous. At best, it is an attempt to re-litigate matters that have previously been litigated and determined. It should be dismissed with costs ordered against Mr Russell. Moreover, the very Cross Claim itself demonstrates the appropriateness of, and the need for, the orders being sought by Polites Investments by its Summons.
[73] Applicant’s Outline of Submissions (FDN 20) at [4].
In effect, Polites Investments seeks for the Cross Claim to be summarily dismissed.
Rule 144.2 of the Uniform Civil Rules 2020 (SA) establishes the circumstances in which summary judgment may be given:
144.2—Summary judgment
(1)The Court may, on application by a party, give summary judgment in favour of an applicant—
(a)on a claim if there is no reasonable basis for defending the claim;
(b)on a cause of action in a claim if there is no reasonable basis for defending the cause of action; or
(c)on a separate issue that arises in a claim if there is no reasonable basis for contesting that issue.
(2)The Court may, on application by a party, give summary judgment against an applicant—
(a)on a claim if there is no reasonable basis for prosecuting the claim;
(b)on a cause of action in a claim if there is no reasonable basis for prosecuting the cause of action; or
(c)on a separate issue that arises in a claim if there is no reasonable basis for prosecuting the applicant’s contention on that issue.
…
In an application for the summary dismissal of a claim, the onus is on the applicant to establish that it is obvious that the claim cannot succeed. In Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd,[74] Doyle J summarised the principles to be applied in determining a claim summarily. His Honour said:[75]
By way of summary of the approach articulated in Spencer v Commonwealth, it can be said that the power to determine a claim summarily should not be exercised lightly. Exercise of the power requires a practical assessment of whether the applicant has real, as opposed to merely fanciful, prospects of success. While the Court need not be satisfied that the claim is hopeless or bound to fail, nevertheless it must be cautious not to do a party injustice by summarily determining an action, particularly where there are disputed issues of fact or law or mixed fact and law, merely because the Court considers that the claim is unlikely to succeed. However, beyond these very general guidelines, the Court should focus upon the words used in the rules and avoid applying any judicial gloss.
Related to the requirement that the Court undertake a “practical” assessment is the notion that the Court should not embark upon a “mini trial” of the claim. Rather, the claim should be assessed in a summary manner, while being cognisant of the incomplete nature of the evidence upon which the Court’s decision must be based. Adversarial argument may assist, and indeed may result in the emergence of a sufficiently clear answer to a complex issue that summary judgment is appropriate. On the other hand, the need for prolonged argument may be indicative of a reasonable basis for the claim.
(citations omitted)
[74] (2020) 137 SASR 117.
[75] Adelaide Brighton Cement Ltd v Hallett Concrete Pty Ltd (2020) 137 SASR 117 at [59]-[60].
Applying those principles to the Cross Claim, Mr Russell’s action seeks to re-litigate contentions and repeats general allegations of fraud and perjury that have been found to be scandalous and unsubstantiated. The matters raised by the Cross Claim do not disclose any proper cause of action. The claim is summarily dismissed.
Orders
I declare that the respondent, Mr Russell has instituted vexatious proceedings, as defined in s 39(5)(b) of the Act, by persistently instituting proceedings without reasonable grounds.
I order that Mr Russell be prohibited from instituting further proceedings in any court of the State of South Australia against the applicant, Polites Investments, or any related body corporate, officer, agent, or advisor of the applicant without the permission of this Court pursuant to s 39(1)(a) of the Act.
I order that the Cross Claim is dismissed.
Mr Russell is to pay the applicant’s costs of the s 39 application and the Cross Claim as taxed or agreed.

[2022] SASC 9

4 February 2022