Re Cameron

[1996] QCA 37

IN THE COURT OF APPEAL	[1996] QCA 037
SUPREME COURT OF QUEENSLAND
Brisbane	Appeal No.112 of 1995
[O'Shea v. Cameron]
BETWEEN:

KENNETH MICHAEL O'SHEA

(Applicant) Appellant

AND:

DONALD JAMES CAMERON

(Respondent) Respondent

Fitzgerald P. Pincus J.A. Mackenzie J.

Judgment delivered 05/03/1996

Separate reasons for judgment of each member of the Court, all concurring as to the orders made.

APPEAL ALLOWED WITH COSTS. THE RESPONDENT IS DECLARED TO BE A VEXATIOUS LITIGANT PURSUANT TO SECTION 3 OF THE VEXATIOUS LITIGANTS ACT 1981.

CATCHWORDS: GENERAL - Vexatious Litigants Act 1981 - interpretation - "instituted vexacious legal proceedings" - "frequently and without reasonable grounds" - respondent has commenced many similar proceedings in an attempt to relitigate a previously determined issue.

Counsel:	Mr J.D. McKenna for the appellant. The respondent appeared on his own behalf.
Solicitors:	Queensland Director of Public Prosecutions. The respondent appeared on his own behalf.
Hearing date:	13/2/96

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Brisbane	Appeal No.112 of 1995
Before	Fitzgerald P. Pincus J.A. Mackenzie J.

[O'Shea v. Cameron]

BETWEEN:

KENNETH MICHAEL O'SHEA

(Applicant) Appellant

AND:

DONALD JAMES CAMERON

(Respondent) Respondent

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 05/03/1996

This is an appeal by the then Crown Solicitor of Queensland against an order made by a Chamber

Judge on 16 May 1995 dismissing the appellant’s application that the respondent, Donald James

Cameron, be declared a vexatious litigant pursuant to s. 3 of the Vexatious Litigants Act 1981. As

her Honour noted, to make such a declaration, it was necessary for the court to be satisfied that Mr

Cameron “has frequently and without reasonable ground instituted vexatious legal proceedings”.

Sub-section 2(1) of the Act gives a wide meaning to “legal proceedings” and includes “any

proceeding taken in connection with any such legal proceedings pending before any court or

tribunal”. Her Honour held that, for the purposes of the Act, “legal proceedings” are limited to such

proceedings taken in any court or tribunal within the jurisdiction of the State of Queensland and,

although that conclusion was challenged in this Court, I am content to assume in Mr Cameron’s

favour, without deciding that her Honour was correct.
It is also necessary to decide what makes legal proceedings vexatious. Although there are

sometimes statutory indications, the broad test potentially concerns such factors as the legitimacy or

otherwise of the motives of the person against whom the order is sought, the existence or lack of

reasonable grounds for the claims sought to be made, repetition of similar allegations or arguments to

those which have already been rejected, compliance with or disregard of the court’s practices,

procedures and rulings, persistent attempts to use the court’s processes to circumvent its decisions

or other abuse of process, the wastage of public resources, and funds, and the harassment of those

who are the subject of the litigation which lacks reasonable basis: see, for example, Attorney-

General (N.S.W.) v. Wentworth (1988) 14 N.S.W.L.R. 481; Jones v. Skyring (1992) 66 A.L.J.R.

810; Jones v. Cusack (1992) 66 A.L.J.R. 815, and Attorney-General (N.S.W.) v. West (N.S.W.

Common Law Division No. 16208 of 1992, 19 November 1992).

Both parties requested this Court to receive additional information which was not before the

Chamber Judge and, in the circumstances, the Court did so. The facts upon which the present

appeal falls to be decided are therefore somewhat broader than the issues before the Chamber

Judge. However, much of what has occurred can be clearly and easily gleaned from her reasons.

On 27 September 1990, an indictment was presented against Mr Cameron in the District Court at

Brisbane 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. On 19 July 1991, Mr Cameron was

convicted on all four counts, two of which related to Custom Credit Corporation Limited, and for

those offences he was sentenced to imprisonment for four years. The other two counts related to

Westpac Banking Corporation, and for those offences he was sentenced to imprisonment for two

years to be served concurrently. On 5 December 1991, the Court of Criminal Appeal allowed his appeal against his convictions in respect of the Westpac counts and he withdrew his application for

leave to appeal against sentence. It transpired that, in respect of the Westpac offences, he had been

charged under the incorrect section of the Criminal Code because of the definition of “Valuable

Security” in s. 1 of the Code. The Director of Prosecutions decided that, in view of the sentences

the respondent was required to serve in respect of the Custom Credit offences, there was no

sufficient purpose to be served in re-charging him in respect of the Westpac offences under the

appropriate section of the Criminal Code.

It is unnecessary for present purposes to discuss in detail the nature of the allegations made against

the respondent in respect of his dealings with Westpac or to give further explanation of the reasons

why his appeal from his convictions in respect of those offences were allowed. It is plain that the

jury must have believed the evidence given against Mr Cameron by the Westpac employees in order

to convict him. Further, in the Court of Criminal Appeal, the observation was made that the

evidence of those witnesses was “cogent and accords with what one would expect in circumstances

like these”. The leading judgment in the Court of Criminal Appeal, delivered by McPherson S.P.J.,

as his Honour then was, stated that, if he had been so indicted, Mr Cameron could properly have

been convicted of obtaining credit by false pretences under sub-s. 427(2) of the Code.

Since shortly after that time, Mr Cameron has engaged in what can properly be described as a

litigious vendetta against Westpac and its material employees. Details are given in the judgment of

the Chamber Judge under appeal and in the judgment of the other members of the Court, and need

not be repeated by me. Nothing in the voluminous and largely confused material placed before us

gives any indication that there is any basis for the various legal proceedings which Mr Cameron has

pursued. He was a bankrupt at the time of his dealings with Custom Credit and Westpac and, if that

bankruptcy ever came to an end, a further sequestration order against his estate was made on 21 December 1994 on the basis of legal costs which he had been ordered to pay but had not paid in

the course of the various proceedings which he has instituted since the decision of the Court of

Criminal Appeal. Shortly stated, there have been writs claiming damages against Westpac,

complaints against Westpac, complaints against Westpac employees, disputes as to costs, etc.

There have also been Federal Court proceedings, including appeals, largely related to the same

matters.

After observing the difficulty that there is in comprehending Mr Cameron’s material, which her

Honour described as “largely a confused muddle”, and his persistent failure to plead any

recognisable cause of action in a meaningful way, her Honour said that she did not think it “clear that

the proceedings are brought without reasonable grounds”, but went on to say that, in any event, she

had “concluded that they had not been brought frequently”. My firm conclusions are to the contrary. Additional matters, mentioned in the judgment of the other members of the Court, refer to Mr

Cameron’s included motion for admission as a barrister and various other motions or cross-

applications related to the variety of other proceedings. Although it is not practical to summarise all

the various documents and submissions put before the Court by Mr Cameron, the material patently

demonstrate his bankruptcy, his criminal record, and the fact that he purports to described himself as

the “Director of Legal Services” at the “Beenleigh Community Legal Centre”, as well as his frequent

unmeritorious claims. I consider it plain that Mr Cameron has abused the process of the court and

will, if permitted, continue to do so. I have not the slightest doubt but that he meets the description

of a vexatious litigant, and ought to be so declared.

In summary, I allow the appeal and make the declaration sought.

REASONS FOR JUDGMENT - PINCUS J.A.

Judgment delivered 05/03/1996

I have read the reasons of Mackenzie J. I am in general agreement with them and in

particular concur in his Honour’s view as to the meaning of "legal proceedings". That is, I agree that

a declaration that a person is a vexatious litigant under the relevant statute cannot be based upon the

institution of legal proceedings "frequently and without reasonable ground" in courts other than

Queensland courts; but the fact that vexatious proceedings have been instituted in, say, the Federal

Court may throw light upon the character of the proceedings in Queensland courts which are relied

on as a basis for making a declaration against a litigant.

I should add that, even where it is shown that there is a basis for making a declaration against a

litigant under the Vexatious Litigants Act 1981, the Court has the discretion and the institution of

vexatious proceedings in courts other than Queensland courts may influence the exercise of that

discretion. In the present case, once it is accepted that there is ground for making a declaration, then

undoubtedly the Court’s discretion must be exercised in favour of doing so. The attitude of the

respondent towards the institution of legal proceedings is exemplified by his having come to this Court

seeking to be admitted as a barrister, an application which, in the light of the material before us, was

ludicrous.

I agree that the orders proposed by Mackenzie J. be made.

REASONS FOR JUDGEMENT - MACKENZIE J.

Judgment Delivered 05/03/1996

This is an appeal against the dismissal on 16 May 1995 of an application under the Vexatious

Litigants Act 1981 to have the respondent declared a vexatious litigant. The applicant and the

respondent both sought leave to rely on further evidence pursuant to Order 70 rule 10. In the case of

the applicant the evidence concerned further proceedings instituted by the respondent since the delivery

of judgment. In the case of the respondent it was affidavits, principally for the purpose of setting out

extracts of evidence given in an earlier trial which was said to demonstrate perjury on the part of certain

officers of Westpac Banking Corporation. In the particular circumstances of the case leave should be

given for such evidence to be received. The appeal is by way of rehearing on all of the evidence now

admitted (Order 70 rule 1).

The first in the series of legal proceedings instituted by the respondent was a writ claiming

damages on the basis that Westpac had by its agents, employees or servants proffered criminal charges

of having obtained a Mastercard and a $15,000 personal loan by false pretences. Although it was not

specifically particularized in the writ it is apparent from later events that it was alleged that employees of Westpac had committed perjury in the criminal proceedings. The respondent had been convicted of

charges of inducing alteration of a valuable security by a false pretence but the convictions were quashed

by the Court of Criminal Appeal. The basis of the acquittal was that an account balance was not a

"valuable security." While the convictions were quashed, the possibility that he might be charged under

s.427(2) on the same facts was left open by the court. The Crown elected not to prosecute under

s.427(2) on the basis that no advantage was to be gained by doing so because of the sentences being

served. When the writ was taken out the respondent was serving imprisonment of 4 years for offences

of false pretences of which he had been convicted in the same trial. On the 27 November 1992

Moynihan J. declared the civil proceedings a nullity because the consent of the Public Trustee to bring

the action had not been obtained.

The second was a private prosecution for perjury commenced against Westpac. This was struck

out in the Magistrates Court on the basis that a corporation could not commit perjury.

The third were proceedings by way of private complaint alleging perjury by the two Westpac

employees and Westpac. These were commenced but struck out because security for costs as ordered

had not been provided. It was submitted on behalf of the appellant that because the Director of Public

Prosecutions took over later similar private prosecutions against the same parties and found no basis to

proceed, it might be doubted that these complaints were instituted on reasonable grounds.

The fourth was an application for an order to review in respect of the decision that the respondent

provide security for costs in the proceedings just mentioned. The application was dismissed by Williams

J. on 22 January 1993. It was not submitted that these proceedings were vexatious on their face.

The fifth was an appeal against the order of the magistrate dismissing the private complaints

referred to above for failure to comply with the order to provide security for costs. It was submitted that

this appeal was commenced without reasonable grounds because the respondent had unsuccessfully

appealed against the order to provide security for costs. The appeal was dismissed by Derrington J. on

4 February 1993.

The sixth were further complaints against the Westpac employees for the same cause. It was
submitted that these proceedings were an abuse of process because a previous prosecution upon

identical grounds had been dismissed for failure to give security for costs. It was submitted that the

respondent had sought to avoid this order by instituting new proceedings upon the same grounds. The

Director of Public Prosecutions elected to take over the prosecution of these complaints and after

investigation elected not to further prosecute them.

The seventh was an action in the Federal Court in Brisbane against Westpac for damages arising

out of the charges brought against the respondent by Westpac. On the 28 June 1994 the action was

struck out by Drummond J. as disclosing no reasonable cause of action. Drummond J. said that the core

of the respondent's case was that the officers gave false testimony to the police, to a committing

magistrate and ultimately to a jury which resulted in what the respondent said was a wrongful conviction.

Drummond J. applied the principle in Cabassi v. Vila (1940) 64 C.L.R. 130 in dismissing the action.

He also referred to the principle stated by Dawson J. in Giannarelli v. Wraith (1988) 165 C.L.R. 543,

595.

The eighth was another action brought against Westpac for damages arising out of the charges

brought by it. It was submitted that this was clearly an abuse of process as it merely sought to relitigate

the proceedings struck out by Drummond J. On 8 September 1994 O'Loughlin J. stayed the action on

the basis that it raised the same issues as had been raised in the proceeding before Drummond J.

The ninth were appeals against the decisions of Drummond J. and O'Loughlin J. It was

submitted that in view of the express concession in the Full Court of the Federal Court by the

respondent that Cabassi v. Vila was an insuperable obstacle to his succeeding the appeals were brought

without reasonable grounds. The appeals were dismissed on the 17 November 1994.

The tenth is an action for damages for "negligence traspass" (sic). Particulars given were that

Westpac provided to the Criminal Investigation Branch unprivileged reports of alleged criminal fraud on

the part of the respondent and that those reports caused him to be deprived of his liberty. It was

submitted that the action is legally unsustainable. On the 13 January 1995 it was stayed by Fryberg J.

until outstanding costs orders had been satisfied.

The eleventh was a motion in the action just referred to. The respondent neither served the

motion nor attended at the hearing before Dowsett J. who dismissed it with costs. The respondent

informed us that he was ill on the return date of the motion.

The twelfth was an appeal against a sequestration order made in the Federal Court by Kiefel J.

On 26 April 1995 the Full Federal Court dismissed the appeal. The bankruptcy notice was founded

upon non-payment of costs awarded in this series of litigation.

The thirteenth was a cross-summons filed on the occasion of the hearing of the Crown Solicitor's

application, for an order that his application be dismissed as vexatious. This summons was dismissed by

White J., as it was bound to be.

To make a declaration that a person is a vexatious litigant it is necessary that the court be satisfied

that the person has instituted vexatious legal proceedings and has done so frequently and without

reasonable grounds. To dispose of this matter it is not necessary to finally decide all the propositions

advanced by Mr McKenna about the extent of the court's power to declare a person vexatious.

However one of his submissions was that proceedings in courts other than Queensland courts could be

regarded as "legal proceedings" for the purpose of determining whether a person had frequently and

without reasonable grounds instituted legal proceedings. It was conceded that a consequence of this

argument was that the Supreme Court might make a declaration, for example, in a case where a person

had instituted numerous proceedings in the Federal Court or the courts of other States without

reasonable grounds and it was apprehended that he was likely to commence actions in Queensland. We

do not accept this proposition. The jurisdiction given by the Vexatious Litigants Act is a protective

jurisdiction and it is the frequency of the proceedings brought without reasonable grounds in Queensland

courts which enlivens it. However once the elements of frequency and lack of reasonable grounds are

established it is legitimate, in a case where it is necessary, to have regard to the fact that groundless

proceedings have been brought in other jurisdictions and what their outcome was to aid in establishing

that proceedings brought in Queensland are vexatious. It may be, as Toohey J. thought in Jones v.

Skyring (1992) 66 A.L.J.R. 810, 813, that the requirement that proceedings be vexatious in addition to being "without reasonable grounds" is tautologous in most practical situations. However in determining

the question of fact whether proceedings instituted in Queensland courts are in fact vexatious (In re

Vernazza (1960) 1.Q.B. 197) the fact that such proceedings are cumulative upon those commenced in

another jurisdiction may strengthen the conclusion that the proceedings are vexatious if that is in dispute.

The material before us on appeal shows that by the time the second action in the Supreme Court

(the action for negligent trespass) was commenced two actions has been commenced and dismissed in

the Federal Court as disclosing no reasonable cause of action. It is not insignificant that the Supreme

Court action was commenced the day after the respondent had lost appeals against the dismissal of the

actions in the Federal Court. This Supreme Court action was stayed until costs incurred on previous

occasions had been paid. Further the additional material shows that within a fortnight of the dismissal of

the summons to have him declared a vexatious litigant, the respondent had issued further proceedings in

the Supreme Court for damages arising out of the same events notwithstanding White J.'s warning that

any attempt to circumvent Fryberg J.'s stay order "by issuing other process concerning the Westpac

charges would clearly be an abuse of process and liable to be struck out." An examination of the

particulars in the writ shows that it was brought against Westpac on the basis of vicarious liability of

Westpac for the conduct of its employees who were alleged to have, in concert, brought about the

prosecution by making "representations" which were known to be false, which were made recklessly, or

which were made negligently. This was alleged to give rise to a claim for damages for instituting legal

process without reasonable and probable cause and under the Trade Practices Act. The respondent

also sought compensation for loss of liberty and damages for loss of contractual income.

The new proceedings represented an attempt to formulate the action in a different way but the

claim still rested on the allegation that the information given to the police and the evidence given to the

court was incorrect and that such circumstances established a good cause of action for the

consequences of his prosecution. Once again, as drafted it is difficult to discern any basis upon which

the action might have been successful. Nothing in the respondent's submissions before us altered this impression. These proceedings were dismissed by consent on 22 June 1995. The plaintiff also

undertook not to issue any proceedings in any court in respect of the matters the subject of the action for

negligent trespass which had previously been stayed by Fryberg J.

It was not the case that the undertaking given to Fryberg J. indicated an intention to desist from all

further litigation of the consequences of the prosecutions. At the present hearing, the respondent sought

to move for leave under s.686 of the Criminal Code to prosecute a named Westpac employee for

offences against s.126 (fabricating evidence), s.489 (uttering false documents), s.494 (making

documents without authority) and s.123 (perjury). The supporting material shows that it is a further

attempt to litigate the same events that underlie the previous abortive proceedings.

He also sought to move for admission as a barrister. The material exhibited does not establish

any basis upon which he might be admitted under the rules relating to admission. On the contrary, it

highlights his long history of criminal conduct, especially for offences of fraud and dishonesty.

The analysis above shows that in various ways, all of which have been unsuccessful for a variety

of reasons, the respondent has attempted to bring proceedings without reasonable grounds against

Westpac and its officers for various remedies in respect of the criminal proceedings brought against the

respondent. The attempts in Queensland Courts have been frequent and without reasonable grounds.

The combination of frequency and persistence, notwithstanding the lack of any substantial basis for the

proceedings, is vexatious.

The appeal is allowed with costs and a declaration is made that the respondent is a vexatious

litigant.