Re Cameron

[1995] QSC 86

IN THE SUPREME COURT

OF QUEENSLAND

No. 177 of 1995

Brisbane

Before the Hon. Justice White

[Re Cameron]

IN THE MATTER of the Vexatious Litigants Act 1981

- and -

IN THE MATTER of an application by Kenneth Michael O'Shea, Crown Solicitor in respect of Donald James Cameron

JUDGMENT - WHITE J

Judgment delivered 16/05/1995

CATCHWORDS:     Application for declaration that respondent vexatious litigant - whether Federal Court proceedings are legal proceedings for the purpose of the Vexatious Litigants Act - frequency

Counsel:Mr J. McKenna for applicant

Applicant in person

Solicitor:Crown Solicitor for applicant

Hearing Date:   28 March 1995           

IN THE SUPREME COURT

OF QUEENSLAND

No. 177 of 1995

IN THE MATTER of the Vexatious Litigants Act 1981

- and -

IN THE MATTER of an application by Kenneth Michael O'Shea, Crown Solicitor in respect of Donald James Cameron

JUDGMENT - WHITE J

Judgment delivered  16/05/1995

The Crown Solicitor has sought an order that the respondent Donald James Cameron be declared a vexatious litigant pursuant to s.3 of the Vexatious Litigants Act 1981 ("the Act"). Mr Cameron has represented himself on this application. He has brought a cross summons to dismiss or stay the application on the grounds that it is frivolous, vexatious or that Westpac's position is indefensible (Westpac Banking Corporation being the object of Mr Cameron's litigiousness) or is an abuse of process.
Section 3 of the Act provides relevantly:-

"If the Supreme Court or a Judge thereof is satisfied that a person has frequently and without reasonable ground instituted vexatious legal proceedings...the Supreme Court or such Judge may after hearing such person...by its, his or her order, declare such person...to be a vexatious litigant."

Pursuant to s.2(1) "legal proceedings" means:-

"...any cause, matter, action, suit or proceeding of any kind within the jurisdiction of any court or tribunal and includes any proceeding taken in connection with any such legal proceedings pending before any court or tribunal"

"Legal proceedings" are limited to such proceedings taken in any court or tribunal within the jurisdiction of the State of Queensland, s.35 Acts Interpretation Act 1954 and see also Jones v. Skyring [1992] 66 A.L.J.R. 810 at p.810 and Hunters Hill Municipal Council v. Pedler [1976] 1 N.S.W.L.R. 478 where the proceedings under consideration were limited to those brought in the High Court and the New South Wales Supreme Court respectively although there were other proceedings of a like kind in each case in other Australian courts. As can be seen the definition of "legal proceedings" is very wide. It is apt to cover interlocutory steps in proceedings.
The matters giving rise to Mr Cameron's complaints against Westpac Banking Corporation ("Westpac") began on 27 September 1990 when an indictment was presented at the District Court against Mr Cameron charging him with two counts of inducing delivery of a security by false pretences and two counts of obtaining alteration of a security by false pretences. The first two counts related to Custom Credit Corporation and the second two to Westpac. On 19 July 1991 Mr Cameron was convicted in the District Court at Brisbane in respect of all counts and was sentenced to four years imprisonment for the Custom Credit charges and two years imprisonment for the Westpac charges to be served concurrently. On 5 December 1991 the Court of Criminal Appeal allowed his appeal against conviction in respect of the Westpac charges. He withdrew his application for leave to appeal against sentence at the hearing of the appeal. The Director of Prosecutions advised Westpac that as the sentences had not been disturbed in respect of the Custom Credit charges there was no advantage in a new trial charging him under the appropriate section of the Criminal Code.
It is necessary for the purposes of this application to consider what the Court of Criminal Appeal said about the Westpac charges. McPherson SPJ (as his Honour then was) delivered the principal judgment and his reasons were concurred with by Ambrose and Mackenzie JJ. Mr Cameron was charged pursuant to s. 428 of the Criminal Code which makes it an offence for any person, by any false pretence with an intent to defraud, to induce any person to alter the whole or any part of any valuable security in order that it may afterwards be used or dealt with as a valuable security. Count 3 on the indictment alleged that on 12 December 1989 Mr Cameron by falsely pretending to one Peter Allen Cork, an employee of Westpac, that he was Graham David Cameron, and that he was solvent, had induced Westpac to alter a part of a valuable security with intent to defraud. Count 4 was a further charge under s. 428 alleged to have been committed between 9 March 1989 and 14 March 1989. In each instance the "valuable security" was said to be the balance of a cheque account in the name of Fonlaw Pty Ltd trading as Camlam Produce Hauliers. The prosecution led evidence that Mr Cork, the manager of a branch of Westpac, was introduced to Mr Cameron by one Lambert, an accountant in December 1988. Mr Cameron was in some way involved with a haulage business named Fonlaw Pty Ltd. At the time Fonlaw Pty Ltd was said to require working capital. Mr Cork explained that Westpac could assist Mr Cameron only by means of a personal loan through a Westpac Mastercard in his own name. Mr Cameron signed an application form for a Mastercard which was then referred by Cork to Westpac's central assessment bureau. Mr Cork's evidence was that he would not have taken that step had he known that Mr Cameron's real name was Donald James Cameron and that he was an undischarged bankrupt. The application was approved and Mr Cameron was allowed to draw on the facility afforded by the Mastercard to the extent of $5,000 which was then credited to the cheque account of Fonlaw Pty Ltd on the 12 December 1988. The account was soon overdrawn and Westpac required that steps be taken in March 1989 to reduce the indebtedness. Mr Cameron made application for an unsecured personal loan of $15,900 through Mastercard. This was successful and an amount of $15,062 was credited to the overdrawn account of Fonlaw Pty Ltd. This application together with the original application were handled by another Westpac officer Mr Brett St. Pierre who was assistant manager to Mr Cork. He carried out credit checks in the name of Graham David Cameron and found a clear credit history. When a subsequent check was carried out in the name of Donald James Cameron his bankruptcy was discovered and several defaults to other institutions. If these matters had been known at the time, Westpac, in accordance with its prevailing policy, would have declined both applications.
           McPherson SPJ observed at p. 8 of his reasons:-

"...the evidence of these witnesses is cogent and accords with what one would expect in circumstances like these."

The real question for the Court of Criminal Appeal was whether, as a result of Mr Cameron's false representations, a part of a valuable security was altered. "Valuable security" is defined in s. 1 of the Criminal Code to include:-

"...any document which is the property of any person, and which is evidence of the ownership of any property or of the right to recover or receive any property."

The Court concluded that the balance of Fonlaw Pty Ltd's cheque account, which was altered by the recording of the two credits of $5,000 and $15,062, could not be described as "valuable security" within the meaning of s. 1 of the Criminal Code. However, McPherson SPJ at p. 9 of his reasons observed:-

"The verdicts of guilty returned on counts 3 and 4 demonstrate that the jury was satisfied that those entries resulted from the appellant's false pretences as to his name and state of solvency and that he acted with intent to defraud.  To my mind it seems clear that in what he did the appellant brought himself within the terms of s.427(2) of the Code, which makes it an offence if a person 'incurring any debt or liability...obtains credit by any false pretence...'  The appellant unquestionably obtained credit when he incurred a personal liability to Westpac to repay the two loans of $5,000 on 12 December 1988 and $15,900 on 13 March 1989.  The credit or credits were obtained by means of the false pretences to which I have referred.  The offence under s.427(2) is not, like that in s.427(1) or 428, one that requires proof of the element of intent to defraud. 

The appellant might, if he had been so indicted, therefore properly have been convicted of obtaining credit by false pretences under s.427(2)."

Mr Cameron commenced civil proceedings against Westpac on 30 April 1992 by writ for damages for malicious prosecution.  The quantum of the damages sought was in excess of $1 million.  Westpac applied to have this action struck out as an abuse of process on the ground that no properly instructed jury could find for Mr Cameron because he suffered no additional time in custody consequent upon the decision of the Court of Criminal Appeal on the Westpac charges and, by virtue of his substantial criminal history for fraud, his reputation was destroyed.  Derrington J dismissed the application on 8 September 1992 on the basis that this and other matters raised were jury questions.
           On 2 October 1992 Mr Cameron brought a private complaint pursuant to the Justices Act 1886 against Westpac alleging that its employees gave false evidence in the criminal trial against him and tendered false documents in the trial. Mr Mitchell SSM dismissed the complaint on 19 October 1992 on the basis that a corporation was incapable of committing perjury. On 4 November 1992 Mr Cameron brought private complaints against Mr Cork and Mr St. Pierre alleging that they had supplied false documentation and committed perjury in giving evidence for the prosecution in respect of the criminal charges. A similar complaint was brought against Mr Lambert who gave evidence for the prosecution in respect of the Custom Credit charges. On 26 November 1992 Mr Deer CSM ordered that Mr Cameron provide security for costs in the sum of $2,000 for each complaint, amounting to $6,000 by 18 January 1993.
           On 27 November 1992 Moynihan SJA declared Mr Cameron's writ seeking damages for malicious prosecution against Westpac issued in April of that year to be a nullity on the basis that he was a person undergoing a sentence of imprisonment in excess of three years and had failed to obtain the consent of a Public Trustee prior to issuing the proceedings.  Mr Cameron was ordered to pay Westpac's costs. 
           On 18 January 1993 Mr Cameron sought an order to review the decision of Mr Deer in respect of the order for security for costs relating to the three complaints against the Westpac and Custom Credit officers.  On 22 January 1993 Williams J refused the application and awarded costs against Mr Cameron. 
           On 25 January 1993 Mr O'Donnell SM ordered that the complaints against Messrs Cork, St. Pierre and Lambert be struck out as Mr Cameron had failed to provide security for costs on or before 18 January 1993 and ordered Mr Cameron to pay $1,200 costs in respect of each of the complaints against Mr Cork and Mr St. Pierre and $600 in respect of the complaint against Mr Lambert within two months.  On 4 February 1993 Derrington J dismissed Mr Cameron's appeal from those orders with costs.
           On 28 January 1993 Mr Cameron brought further complaints against Messrs Cork and St. Pierre pursuant to the Justices Act in the Magistrates Court of the same kind as brought on 4 November 1992.  Those complaints were taken over by the Director of Prosecutions who declined to continue with them.
           On 1 March 1994 Mr Cameron was released from prison and on 4 May of that year commenced proceedings in the Federal Court in Brisbane against Westpac.  Although some of the causes of action are obscure the facts alleged make it clear that Mr Cameron sought damages arising out of the alleged false evidence of Messrs Cork and St. Pierre in his criminal trial.  Drummond J struck out the action on the ground that it disclosed no reasonable cause of action and ordered costs against him.  His Honour referred to a passage by Dawson J in Giannarelli v. Wraith (1988) 165 C.L.R. 543 at p. 595:-

"Fundamental to the administration of justice is the opportunity which the law afford to all those who are participants in proceedings in a court to speak and act freely, within the rules laid down, unimpeded by the prospect of civil process as a consequence of their having done so.  This privilege against civil liability - for privilege it is - extends beyond the parties and their representatives to witnesses, the court officials and the judge himself.  As Starke J said in Cabassi v. Vila (1940) 64 C.L.R. 130 at pp. 140‑141:

'No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts . . . The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice . . .'"

Mr Cameron filed fresh proceedings against Westpac in the Federal Court and although the relief sought was cast in a clearer form it related to the same events as the previous action.  O'Loughlin J struck out the statement of claim and permanently stayed the action on 8 September 1994 ordering costs against Mr Cameron for similar reasons to those of Drummond J.  Mr Cameron appealed both of those orders to the Full Federal Court.  His application was dismissed on 7 November 1994.  Wilcox J observed in the course of the hearing that Mr Cameron was, in essence, seeking damages for malicious prosecution although no appropriate allegation of fact had been made in the proceedings under appeal.  He further observed that the State Court was the appropriate venue for such an action.
           The following day Mr Cameron issued a writ out of this Court against Westpac in the following terms:-

"The Plaintiff claim is NEGLIGENCE TRESPASS

The Following are the Particulars:

1.That on or about the 6 day of October 1989 at Redcliffe in the State of Queensland, the defendant provided to the Criminal Investigation Branch unprivileged reports for alleged Criminal Fraud in an amount of $5,000 and $15,900 a total of $20,900.

2.That unprivileged reports causes the Plaintiff to be deprived of his liberty on or about 9 April - 28 August 1990 - 8 July - 5 December 1991.

AND THE PLAINTIFF CLAIMS DAMAGES

(a)That the plaintiff suffered loss of life's enjoyment

(b)That the plaintiff suffered loss of family support and Love;

(c)That the plaintiff suffered loss of contractual earning capacity in an amount of $1.975 million with Fonlaw Pty Ltd and Centrim Pty Ltd.

The plaintiff also claim interest at 18% on the above sum."

On 13 January 1995 Fryberg J ordered that those proceedings be stayed until such time as Mr Cameron satisfied two previous costs orders from the first Supreme Court action which was struck out by Moynihan SJA.  A sequestration order was made against the estate of Mr Cameron on 21 December 1994 on the basis of the certificates of taxation in respect of those costs. 
           Mr Cameron's material is largely a confused muddle and whilst a Court must be more than tolerant of a litigant who appears on his own behalf, the material ought to be reasonably relevant to the matter in hand.  Mr Cameron's affidavit in support of his cross‑application sets out passages from the cross‑examination of witnesses by him at the criminal trial in the District Court.  He handed up extensive submissions on, inter alia, malicious prosecution.  In that document he makes the erroneous assertion at p. 6:

"ACQUITTAL

On 5 November 1991 the Full Court discharged the Appellant/Applicant without recommendation for a re‑trial stating that it was an inappropriate case."

What the Court of Criminal Appeal said was this:

"The verdicts and convictions on counts 3 and 4 should therefore be set aside.  From what I have said, a new trial on the existing counts 3 and 4 would not be appropriate.  If the Crown proposes to proceed further, consideration might be given to laying charges under s. 427(2)."

In mid‑1994 Mr Cameron put in train an application for special leave to appeal to the High Court from the judgment of the Court of Criminal Appeal given on 5 December 1991.  That application necessarily included an application for an extension of time within which to bring the application it being significantly out of time.  The Deputy Registrar of the High Court settled the index and, pursuant to O. 69A of the Rules of the High Court required copies of the application book to be filed within 30 days.  The requirements of the rules were not complied with and a further extension was given until mid‑November 1994.  That deadline was not met and Mr Cameron maintains that he has been given a further extension orally and, in any event, says that he has not abandoned his application and will seek whatever extensions of time as are necessary.  His outline of submissions in that matter makes it clear that he is seeking leave to appeal against the dismissal of his appeal in the Court of Criminal Appeal in respect of the Custom Credit convictions.
           It is then necessary to consider what proceedings Mr Cameron has instituted.  Although I have included reference to Federal Court proceedings in the chronology of Mr Cameron's use of the courts, it is only proceedings brought in the courts of Queensland which are relevant to the issue whether he has "frequently and without reasonable ground instituted vexatious legal proceedings".  The expression "legal proceedings" includes criminal proceedings, Attorney-General (NSW) v. Solomon [1987] 8 N.S.W.L.R. 667 at p. 672. Toohey J in Jones v. Skyring (1992) 66 A.L.J.R. 810 at p. 813 accepted that the institution of an appeal was a legal proceeding, see also In re Vernazza [1960] 1 Q.B. 197. I would conclude that the following legal proceedings have been instituted by Mr Cameron:

•Writ issued out of Supreme Court on 30 April 1992 against Westpac and subsequently struck out by Moynihan SJA for failure to obtain the Public Trustee's consent;

•Complaint in Magistrates Court against Westpac on 2 October 1992 and subsequently struck out;

•Complaint in Magistrates Court against Cork and St. Pierre, employees of Westpac, of 4 November 1992 for giving false evidence in his criminal trial, subsequently struck out for failure to provide security for costs;

•Review in Supreme Court of order of Magistrate to provide security for costs in respect of the above complaint which was dismissed;

•Review in Supreme Court of order of Magistrate striking out complaints for failure to provide security as ordered which was dismissed;

•Complaint in Magistrates Court against Cork and St. Pierre, for giving false evidence at the criminal trial of 25 January 1993 which was not proceeded with by the Director of Prosecutions;

•Writ issued out of the Supreme Court on 8 November 1994 against Westpac said to be for damages for malicious prosecution.

Until the appeal record for the High Court application has been correctly settled I would be inclined to view that matter as still at the administrative stage and therefore not "legal proceedings" within the meaning of the section. 
           The question then arises, have legal proceedings been instituted frequently. 
           I have no doubt that should Mr Cameron seek to institute any other complaints in the Magistrates Court against the officers of Westpac concerning the criminal trial that would be an abuse of process and would be likely to be struck out. 

           The two Supreme Court writs, notwithstanding their all too obvious defects and poor grasp of legal concepts and insufficiency of facts, seek damages for malicious prosecution.  The first was struck out on a ground independent of the subject matter of the action.  To bring a second similar action, after the disability of being a prisoner for a term in excess of three years, cannot be described as either frequent or an abuse of process.  The Magistrates Court's complaints whilst relating to the criminal trial were materially different as to the cause of action. 
           The other matter to be considered is whether the writs were issued without reasonable ground and were vexatious.  Toohey J in Jones v. Skyring, supra, at p. 813 considered that it was tautologous to add the requirement that the proceedings be vexatious in addition to being "without reasonable ground".  Proceedings commenced frequently and without reasonable ground, one might have supposed would be vexatious.  In In re Vernazza, supra, at p. 208 Ormerod LJ held:

"The words of the section are 'without any reasonable ground instituted vexatious legal "proceedings"'. They are referring to legal proceedings, and the question is not whether they have been instituted vexatiously but whether the legal proceedings are in fact vexatious.  I suppose most proceedings are vexatious to the persons against whom they are directed, and, therefore, the further question has to be considered whether, though they may be vexatious, they have been brought without any reasonable ground.  That is a matter for the court to decide.  But, if in the opinion of the court, the proceedings are vexatious and there is no reasonable ground for bringing them, then they are within the category at which this section aims."

See also the observations of Willmer LJ at p. 215.
           An application was brought by Westpac to strike out the first writ on the ground that it disclosed no reasonable cause of action.  That application was unsuccessful.  Derrington J observed that whatever scepticism one might have about Mr Cameron's capacity to prove the elements of malicious prosecution against Westpac and a jury awarding Mr Cameron any damages particularly in the light of the findings and comments of the Court of Criminal Appeal, nonetheless the issue was one for trial and not summary dismissal.
           Mr Cameron has an unfortunate attachment to trespass as a cause of action and frames his second writ as a claim in "negligent trespass" and the particulars are not enlightening.  There is no statement of claim properly so called.  He said before me that he was suing for malicious prosecution.  The elements as to which relevant facts need to be alleged for such an action are that Mr Cameron was prosecuted at the behest of Westpac and that there was a criminal charge brought against him as consequence; that he was acquitted; that the prosecution was brought without reasonable and probable cause; and that the prosecution was malicious.  Something of the necessary facts can be gleaned from the affidavits and submissions put before the Court, but as can be seen from the endorsement on the writ it falls far short of meeting even the most lax pleader's standards.  This is not a striking out application.  Since the issues have never been properly set out and dealt with it is not clear that the proceedings are brought without reasonable grounds, but in any event, I have concluded that they have not been brought frequently. 
It was suggested by Mr McKenna, who appeared for the Crown Solicitor, that Mr Cameron was bringing these proceedings for a collateral purpose against the bank. There can be no doubt that Mr Cameron has been a source of expense and annoyance to Westpac. He has paid none of the costs ordered against him, but without more I do not think the conduct can be described as vexatious in the sense that it is used in the Act.
Fryberg J has stayed the current action until the orders for costs made against Mr Cameron have been satisfied. Any attempt by Mr Cameron to circumvent that order by issuing other process concerning the Westpac charges would clearly be an abuse of process and liable to be struck out. I am however unable to conclude that he falls within the scope of s. 3 of the Vexatious Litigants Act and dismiss the application.  No grounds have been established for granting Mr Cameron the relief sought in his application.   It too is dismissed.
           I note that Mr Cameron writs under the letterhead "Beenleigh Community Legal Centre" and describes himself as "Donald James Cameron Director of Legal Services".  That is a matter of some concern in light of the quality of the legal material placed before the Court irrespective of any other consideration.